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Our son was served divorce summons about 17...

Resolved • Response time 42 minutes

20 May 2013

Our son was served divorce summons about 17 months ago after returning from a war zone where he served for 4 months. He was "asked" by the wife's lawyer to stay away from his house based on the wife's request. ( A THREAT WAS ISSUED by the wife's lawyer, that if he did not leave the house, then an Order of Protection would be petitioned -- (which was illegitimate), but our son cannot afford such an Order due to two top secret military and Dept of State securtiy clearances and an totally unblemished record. (The wife has 6 convictions for drugs, DWI, burglary, jail time and violation of probation plus 1 unreported embezzlement (of $ 10,000 from a family business) The wife is known to have a 25 year old boyfriend who has lived in ("our son's" / "their") house, with the wife and their 5 year old daughter during most of the 4 months that our son was overseas and now for an additional 12 months while our son has been "threatened" out of his house. (This "paramour" was reported by a next door neighbor who is a retired police officer and a friend of our son.) Our daughter in law (age 30) is 6 months pregnant with the boyfriend's child and she has allowed the boyfriend to continue to stay in our son's house while her attorney continues to intimidate and threaten our son with an Order Of Protection -- if he were to go to the house for any reason. The question now: Based on Real Property Law and "Tenants by Entirety" can the wife take posession of the house for herself and her boyfriend AND COLLECT RENT FROM THE BOYFRIEND and keep all of the money from the rent "? Is there a restriction for one owner by "tenants by the entirty" which should prevent one owner from taking control of the entire property and using and essentially renting part of the house to her boyfriend ? Is she entitled to have unrestricted use of the house. Our son is still paying 1/2 of the mortgage $650 per month (1/2 of $1300 ) The reason for this is that he cannot afford to have his credit damaged or his security clearances would be canceled ? At the time of divorce, should he be entitled to credit for the rent / mortgage payments 17 months X $650 = $11,050
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20 May 2013

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20 May 2013
Andrea, Esq.
Andrea, Esq.
Hi, and Welcome to JustAnswer, My name is XXXXXX, X am a Licensed, Practicing Attorney and my goal is to provide you with Excellent Service, Answer your questions and concerns, I am very sorry to hear that your daughter in law is taking such advantage of your son, but I am a firm believer in the saying, "What goes around, comes around", so she will get what is coming to her and what she deserves. 1. You asked if she could exclude your son from the house Answer 1: Neither spouse can exclude the other spouse from the marital residence. I understand that you said that they own it as Tenants y the Entireties which means that each spouse owns an undivided one-half interest in the whole. But, even if the wife owned 100% of the house, she could not exclude your son because it was the "marital residence". The wife's lawyer does not sound very ethical if he is threatening your son with a Petition for an Order of Protection because (1) he knows your son has done nothing to warrant a Protection Order being entered against him; and (2) the lawyer knows that your son cannot risk his Top Secret Security Clearance and his unblemished record; 2. You also asked if the wife can collect rent from the boyfriend and keep it ANSWER 2: No she cannot collect rent on a jointly owned house and keep the entire amount of the rent she collected. Since the retired police officer who is a neighbor is a friend of your son's, it would be a good idea if he spoke to the neighbor to find out specifics like how long the boyfriend has lived there, does the boyfriend stay there all day, or does it look like he has a job and leaves in the morning and returns at night. This way, your son can do some alculations of how much he is owed in rent from the boyfriend. 3. Lastly, you asked if your son is entitled to some kind of credit because he has been making one-half of the mortgage payments each month, but he has been denied access. ANSWER 3: Your son must get a credit for making One-Half of the Mortgage Payment each month o a house to which he has unjustifiably and illegally been excluded. In addition to this, your son is entitled to an additional credit equal to the Fair Market Rental Value of the property and this amount should be charged to the wife. What I mean by "charged" is this - Say, the divorce proceedings are oming to an end and the only issue left is division of the marital property, but the parties cannot come to an agreement as to the division. If the parties live in a communtity property State, the Judge will divide the marital property equally and the Judge can pick and choose who gets what. Think of each spouse as having an account and they each have a balance sheet. The Judge will listen to your son's argument that he was denied access to the marital residence, she occupied it with her boyfriend who paid rent and your son was making one-Half of the monthly mortgage payment. The Judge will give your son''s account credit for the Fair Rental Value of the wife's occupancy, give him credit for the rent she was collecting from the boyfriend and credit for making one half of the monthly mortgage payments. Each time your son's "balance sheet" receivees a credit, it is deducted from the wife's balance sheet. So, the Judge evens everything out in the end. Your son should retain a lawyer to protect his interests and to keep a eye on the wife's lawyer to make sure he does not do anything to jeoprdize your son's Top Secret Security Clearance. When another lawyer is involved, the wife's lawyer will not be so arrogant and threatening to your son. In fact, since the boyfriend does not even belong in the house, the first demand that your son's lawyer should make is to demand sole occupancy of the marital residence for your son. The wife and the boyfriend can then fend for themselves. It will be a difficult time for your son, but please tell him that it will pass and anytime he is disheartenend, to just look a few months ahead when all of this will be behind him, I wish you and your son the very best of Luck, _________________________________________________________________ Please be kind enough to rate "Excellent Service" so that I can receive credit for researching your question and providing you with a method to resolve your situation, otherwise I will not receive any credit for assisting you, Bonus and Positive Feedback on Survey are greatly appreciated, Thank you for allowing me the opportunity to be of service, ANDREA
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Andrea, Esq.
Andrea, Esq.
Attorney
Avg. question only $42
I have practiced law for 25 yrs. with an emphasis on real estate, business law, criminal defense and family law.
20 May 2013
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Customer reply
22 May 2013

ANDREA Thank you -- very much for such a complete answer. Our son is a very self controlled former Marine, who was selected a few years ago as Number One Marine in Western NYS. He found his wife naked in bed with the boyfriend and he just took a photo of the naked boyfrined running from the bed,- using his cell phone. I am very pleased to pay the fee and may have more questions as this situation unfolds. EXCELLENT ANSWER THANK YOU P.S. The reason that I am late in responding is that I have a lot of projects and work somewhat late each day. THANKS AGAIN BOB XXXXXXXXXXX FOR OUR SON ROB.

22 May 2013

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