"Can I get him/her out of 'MY' house"?

Wednesday, August 4, 2010

As previously published by The Hamilton Spectator

As unique as each of us believes our lives are, for family law lawyers, those unique stories tend to repeat themselves.  

For example, She's away for the weekend and comes back during the week.  Can I keep her out?  I just want her to leave.  Can I make her leave? Can I change the locks?

One of the most  frequently asked questions is: "Can I get him/her out of 'MY' house"?

The answer varies depending on circumstances. But, a matrimonial home, regardless of who has title, is still a matrimonial home, and both of you are entitled to possess it.

If abuse exists, the victim may apply for exclusive possession, which means one stays and the other goes.  However, in such cases, police should be called as they have authority to remove abusers from the home if warranted.

If there's no abuse, the only other way to get exclusive possession is to prove it's best for the kids. That's a tough because each parent usually believes it's best if other parent left.

Here are some words of wisdom.  Make the right long term decision, not a short term, emotional decision.

If you rent your home you should know here is no property interest in a rented home and your only rights are to be in possession of the home.  If there are no children, one of you should just go.  

If you own a home, the response changes depending on your level of equity in the home.  

If there is little equity, get on with it. One of you should go, because realistically the house will have to be sold.  

If one of you wants to and can afford to buy out the other, and to live in it after the split, go  see if you qualify for a mortgage on your own.   Financial institutions will consider the support you receive as  income, if it's contained in a Separation Agreement/Court Order.  If neither of you qualify on your own or will find it too expensive to maintain, get it listed now.

When there is substantial equity, or the house is paid for,  the home is usually traded off against other assets like pensions, R.R.S.P's, or businesses.   Typically, the spouse with valuable other assets should consider trading off against their equity in the home and vacating.

Unfortunately, the perspective from the person who doesn't get the house is that the other got everything.  Remember a pension/R.R.S.P. is an asset that doesn't kick in until later in life and will prove to be an invaluable income stream, unlike a house.  

When assessing whether to move out, one should also consider with whom the children will be primarily residing.

If you don't like any of the above suggestions, you both get to live there as long as you're warring, and no one can force the other out unless there is abuse or its best for the kids. That determination can only be made by the Court.

To see how living together indefinitely works out watch the movie The War of the Roses!

Joanne Guarasci  practices family law with Ross & McBride LLP in Hamilton (www.rossmcbride.com).  Please send in your questions to jguarasci@rossmcbride.com.