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  1. #1
    Join Date
    Jul 2010
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    6

    Default How to Get Exclusive Use of Marital Residence

    In the Commonwealth of VA, I am watching my friends heading for a termination of an 18 year marriage. He is the sole breadwinner, all assets are in his name only (as is the debt). The have 4 kids (ages 5 - 15). He wants to keep the kids in the marital home with him and ask her to leave. She has already moved out of the marital bedroom. She is on her 3rd strike of infidelity. He is DONE! He does not intend to leave her destitute, but does not intend to leave and create an opportunity for the wife to be parading men into HIS house, in front of HIS kids. Note, the oldest son is already venomous toward his mother over her last extra-marital affair.

    Can he file a petition to the courts for exclusive use of the marital residence with a custody order for his kids, and get a court order to have her move? Or, must he file for separation/divorce first?

  2. #2
    Join Date
    Apr 2009
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    Somewhere near Canada
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    35,894

    Default Re: Exclusive Use of Marital Residence, Virginia

    He would - generally - have to file for divorce and request exclusive use of the marital home.

    Who has been the primary physical (not financial) caregiver of the children during the past 15+ years? Because that person will likely remain the primary custodian. If that person is Mom, is Dad ok seeing them homeless?

    He should also - as should you since this is none of your business anyway - try using the word "our" when referring to THEIR kids and THEIR marital home.

  3. #3
    Join Date
    Jul 2010
    Posts
    6

    Default Re: How to Get Exclusive Use of Marital Residence

    Thank you. Yes I understand and would use those terms if I were writing for myself.

    It is my business, only because he has asked for my help. I am friends to both of them, and have tried to remain very neutral during these trying times. He came today, with tears and proof, and is crushed.

    It is only at his request that I posted here for advice. You understand his reaction is very visceral and I was trying to emphasize that by the use of the language as I posted.

    No offense taken -- as I would presume you did not mean it to be interpreted as such.

    His intent would be to keep their children in the home with him. While he is the breadwinner, they have shared the responsibility, nurturing, activities, and rearing of their children, mutually.

  4. #4
    Join Date
    Apr 2009
    Location
    Somewhere near Canada
    Posts
    35,894

    Default Re: How to Get Exclusive Use of Marital Residence

    No, I meant what I said. This is legally none of your business.

    But since I'm here and obviously responding....

    If Dad works all day Mom will likely be considered the primary caregiver and as such has status quo on her side.

    He needs to hightail it to an attorney TOMORROW MORNING. He should also be aware that VA is an equitable distribution state meaning that, quite simply, he might walk away from this considerably worse off financially than he thinks.

    Virginia is an equitable distribution state, meaning that if the parties can't agree, the marital property will be distributed in an equitable fashion, not necessarily equally. The amount of any division or transfer of jointly owned marital property, and the amount of any monetary award, the apportionment of marital debts, and the method of payment shall be determined by the court after consideration of the following factors:

    The contributions, monetary and non-monetary, of each party to the well-being of the family.
    The contributions, monetary and non-monetary, of each party in the acquisition and care and maintenance of such marital property of the parties.
    The duration of the marriage.
    The ages and physical and mental condition of the parties.
    How and when specific items of such marital property were acquired.
    The debts and liabilities of each spouse, the basis for such debts and liabilities, and the property which may serve as security for such debts and liabilities.
    The liquid or non-liquid character of all marital property.
    The tax consequences to each party.
    The use or expenditure of marital property by either of the parties for a nonmarital separate purpose or the dissipation of such funds, when such was done in anticipation of divorce or separation or after the last separation of the parties.
    Such other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable monetary award.
    Separate property is (1) all property, real and personal, acquired by either party before the marriage; (2) all property acquired during the marriage by bequest, devise, descent, survivorship or gift from a source other than the other party; (3) all property acquired during the marriage in exchange for or from the proceeds of sale of separate property, provided that such property acquired during the marriage is maintained as separate property; and (4) that part of any property classified as separate property. [Based on Code of Virginia, Title 20, Section 20-107.3]

    Honestly - I realize you're trying to be a good friend but the best thing you can do in this instance is tell him he absolutely needs to see an attorney.

    First thing tomorrow.

  5. #5
    Join Date
    Jul 2010
    Posts
    6

    Talking Re: How to Get Exclusive Use of Marital Residence

    I did just that very thing! Gave him the contact information and asked him to put together a preliminary list of goals and outcomes he would like to see from this as a place for the attorney to start.

    It is almost, always sad when a family dissolves...

    I will forward the information you have included for his edification.

    Again, I thank you

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