What Does “Exclusive Use and Possession” mean?

What Does "Exclusive Use and Possession" mean?.

Published in: on February 7, 2014 at 2:01 am  Leave a Comment  
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Who Has To Move, Him Or Her?

By Robin Roshkind, Esquire, West Palm Beach, Florida

Many couples going through a divorce  just don’t have the funds for separate residences.  It is cheaper (not easier) to stay under one roof, until the divorce is final and the issue of the marital home is decided by the judge or agreed to by the parties.

For those couples  lucky enough to have assets, or those in two income families, it is easier (not cheaper) to live separately and apart pending divorce proceedings.  So how do couples decide who shall stay and who shall go?

First, you don’t lose your marital rights to the marital residence merely by moving out, if your name is on the deed or on the lease.  The remaining party has no right to change the locks unless by agreement of the parties or court order.

Secondly, if there are children, it is understandable that they are going through enough changes during divorce.  They should remain, if at all possible, in a stable home environment.  So who is going to be the parent who will be or continue to be the major caregiver?    It is that parent who should stay, as it is in the best interests of the children.

On the other hand, there are cases whereby only one of the parties can afford to pay the mortgage, maintenance, insurance and taxes.  That is the party who should stay.  The other should go, with or without children in tow.

In cases where neither party can afford the mortgage or expenses of the marital home,  both should move out and rent the home or keep it as an investment property, or you both agree to list the house for sale and stay until it sells.

Lastly, where a home is in foreclosure or short sale status, you both should work it out to stay, because that is in both  your best interests.

In some cases, both parties want the home or neither husband nor wife wants the home.  Every case is different.  If the spouses cannot agree, the divorce court judge will decide for you both.

 

 

What Does A Quit Claim Deed Do?

By Robin Roshkind, Esquire, West Palm Beach, Florida

In divorce settlement cases, we often use a legal instrument called a quit claim deed to convey real estate between married couples getting a divorce.  The facts are as follows:  Either the husband or the wife decides/agrees to convey his/her interest in the marital home (or any other real estate) to the other party.

For example, let’s just say the husband is going to take a job offer out of state.  He is willing to convey his interest in the marital home , while concurrently, the wife will refinance the mortgage to remove his name from the liability and provide him with a buy out check for his half of the market value of the home.   In this example, the quit claim deed awards the wife the home in its entirety while the concurrent refinancing removes the husband from the debt service and provides cash for his share.

In cases where refinancing is not possible, due to no equity in the home or the wife in this example does not otherwise qualify, then the lawyers will hold the quit claim deed in escrow until such time as there is a refinance.  Quit claim deeds are instruments of conveyance of real estate, and should be recorded in the property records department in the jurisdiction where the property is located. For more information about this or other divorce topics, call one of the divorce lawyers at ROBIN ROSHKIND, P.A. at 561 835 9091 or click on the Firm’s web site at http://www.familylawwpb.com.

 

Meddling In Laws and Your Divorce

Meddling In Laws and Your Divorce.

Whose Name It’s In Doesn’t Matter In Divorce

by Robin Roshkind, Esquire, West Palm Beach, Florida

Many of my clients have a misconceptions about whose property is whose when it comes to divorce in Palm Beach County.    For example, a Mercedes Benz was purchased during the marriage with funds from a joint bank account.  The car is titled in the husband’s name only.  Whose car is it in the division of marital assets?  Barring any prenuptial or post nuptial agreement that says otherwise, it is viewed by the court as marital property.  Just because the title is in the husband’s name only, does not mean it belongs solely to the husband.  Ultimately it might go to him in the equitable distribution scheme of the divorce, but it is not necessarily his just because of the title designation.

Another example is the marital home.   Suppose one of the spouses owned the home prior to the marriage, let’s say it’s the wife.  Once the marriage takes place, she refuses to put the home into joint names.    When they get divorced years later, the husband still has an equitable interest in the home from the day of the wedding until the date of the divorce filing even though his name is not on the deed.    For other examples of title interests in divorce law in the state of Florida, call one of the divorce lawyers at ROBIN ROSHKIND, P.A. at 561 835 9091 or click on the Firm’s web site at http://www.familylawwpb.com.

Main Breadwinner Should Keep Status Quo In Divorce Proceedings

by Robin Roshkind, Esquire, West palm Beach, Florida

By filing for divorce, changes are imminent.  However, after filing, if the husband and wife are still living together, and there is one party who is the main breadwinner of the family, it is wise for that spouse to keep the status quo in terms of bill paying.

In other words, if there is a doctor/husband, and a stay at home wife/mother, the husband should continue to pay what he has in the past, i.e. mortgage, health insurance, household bills, car payments, whatever.

If the major breadwinner of the family cuts the family off financially, should the matter get before a judge, the judge will see the spouse as a wrongdoer…and will award the other spouse temporary relief pending the proceedings.

You should not stop paying for things like health insurance payments, mortgage payments, utility bills, taxes and insurance, HOA fees, and the like simply because a divorce is pending.  For more information about this or other divorce topics, call one of the divorce lawyers at ROBIN ROSHKIND, P.A. at 561 835 9091 or click on the Firm’s web site at http://www.familylawwpb.com.

What Happens If I Move Out?

By Robin Roshkind, Esquire, West Palm Beach, Florida I get this question all the time from clients who are doing divorce planning.  Divorce planning is another subject that is very important and I will address that in another article.  However, moving out of the marital home raises lots of questions from clients, the most common addressed below: First question:  DO I LOSE MY RIGHTS?  If your name is on the deed to the marital home, the answer is no. Second question:  WILL I LOSE MY KIDS?  It is your children’s rights that are protected by law here, that being the right to have two loving parents.  You will not lose your parental rights unless you are unfit to parent. Third question:   CAN HE/SHE KEEP ME OUT?  Only if there is a restraining order or some other court order giving your spouse exclusive use and possession. Fourth question:  WHAT DO I DO IF MY SPOUSE CHANGES THE LOCKS?  Change them back. Fifth question:  CAN I TAKE MY STUFF?  Only your personal effects ie clothing, cosmetics, shoes, hats, hand bags,  papers.  The rest is considered marital and subject to equitable distribution. Lastly:  HOW DO I PROTECT MY RIGHTS:  Photocopy everything and photograph everything else. For more information about this subject, divorce planning or other divorce topics, call one of the divorce lawyers at ROBIN ROSHKIND, P.A. at 561 835 9091 or click on the Firm’s web site at http://www.familylawwpb.com.

If Your Marriage Is On The Rocks, PROTECT YOURSELF!

By Robin Roshkind, Esquire, West Palm Beach, Florida

Clients come in for a consultation for information.  They either are thinking about getting out of a bad marriage or relationship, or their spouse has mentioned something about a split.  I often get the question, how do I protect myself?

The first easy piece of advice is PHOTOGRAPH EVERYTHING.  That includes the cars, the boat, the grand piano, grandmother’s sterling silver, jewelry, antiques, paintings, and collections such as wine, coins, stamps, even the big screen.

The second easy piece of advice is PHOTOCOPY EVERYTHING.  The wine lists, coin and stamp logs, mortgages, car titles, deeds, corporate documents, bank statements, credit card bills,  income statements, tax returns, pay stubs, investment accounts, whatever you can get your hands on.

Drop the cartons of pics and copies off to your lawyer.  Don’t leave them in the trunk of you car!

Lastly, don’t leave car keys, wedding rings and other small valuables lying around the house.  They have a tendency to be “stolen”.  For more information about this or other divorce topics, call one of the divorce lawyers at ROBIN ROSHKIND, P.A. at 561 835 9091 or click on the Firm’s web site at http://www.familylawwpb.com for more information.

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