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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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Old 11-03-2016, 09:58 PM
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Default First timer - what to expect

Hi,

I have an emergency motion coming up on Tuesday for exclusive possession of the marital home. We have a case conference scheduled for Dec 14, but STBX has been freely coming and going in the home, even though we've lived apart for almost 2 years. It turns out he's been going through my stuff when he was here (which he admitted in person and via text), and he also walked in on me undressed the other night (alone), and demanded to know what my plans were for the evening (kids were in his car outside). So needless to say, we've submitted a motion for exclusive temporary possession.

What should I expect? How long will it take? Will STBX be present? He's being served tonight because his new lawyer is not on record, and apparently is 'too busy' right now to deal with this, even though his firm has >30 lawyers on staff.... anything else to expect/prepare for?
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Old 11-03-2016, 10:07 PM
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Your ex will probably instruct his lawyer to get an adjournment for 30 days, particularly if the lawyer was just recently retained. Judge's don't like to make decisions without both named parties providing their input.

Total creep factor your ex coming into your residence (which he has not lived in for 2 years).

Have you ever considered installing a security system? Even if you are successful in your motion I would strongly suggest you get one. It sounds as though your ex doesn't understand the concept of "boundaries."
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Old 11-03-2016, 10:08 PM
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In Quebec it's automatic, elsewhere I don't think you get exclusive possession unless there is some sort of abuse.
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Old 11-03-2016, 10:12 PM
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I was told his lawyer may show up and ask for a 2 day extension, which is the max for emergency motions. But in the meantime I would get the order, for 2 days minimum.
I was under the impression that he's not to be blocked from the home since we both own it, so changing the locks/adding a security system isn't a possibility, without providing him the key/code. Obviously that might change once the motion is heard and maybe approved.
As per my other questions, do we sit in court, outside of court, in a coffee shop all day and wait? Obviously I pay the lawyer all day too, any suggestions as to how to wisely use this time since I will be paying an exorbitant amount?
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Old 11-03-2016, 10:19 PM
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naw.... you can install a security system as long as you are the resident.

Codes can be changed on the fly. He wants in? Fine - he gives you 24 hr notice then you change the code immediately after he leaves.

I am so grateful that we had a security system in our home. First thing I did when I kicked my ex out was change the code. He lawyered up and couldn't do dick-all about it. Your ex has been living elsewhere for 2 years. Ownership does not necessarily give him the right to enter the home when someone else is living there. There are plenty of laws regarding this. Talk to the security company for their input as well. Probably best money you will spend until your matter gets resolved a few years from now.

Don't play into your lawyer's game with your ex's lawyer (they make side deals with opposing counsel all the time).

Protect yourself.
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Old 11-03-2016, 10:19 PM
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is the house listed for sale or anything? Are you paying all the mortgage etc on your own?

Have you thought of having your lawyer contact his and see if they are just going to ask for an extension? That way your lawyer wouldn't have to show up in court until the actual day.
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Old 11-03-2016, 10:26 PM
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house is not listed for sale, yet. I would like to sell it and move on, however, I know my ex will drag this out forever, and my 1/2 of the proceeds will quickly go to lawyers. Essentially I am squatting here with the kids until we have an agreement, which I've requested will take effect the day of the house sale closing - not retroactive to day of separation.
He is paying most bills on the house, which I figured would be an incentive to negotiate fairly, quickly, etc. so he was relieved of the mortgage, hydro, taxes, etc. We live in a nice neighborhood, big old house, not cheap. FWIW, the house bills are likely less that what he would have had to pay in CS and possibly SS, based on his income in the last 2 years. He makes well into the 6 figures with 3 young kids - 8, 6 and 4. I don't even make close to that - gov't, and have had the kids >60%, mostly 70%.
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Old 11-04-2016, 11:56 AM
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Quote:
Originally Posted by magic3 View Post
... So needless to say, we've submitted a motion for exclusive temporary possession.
My recommendation on this matter:

You should have motioned on an emergency basis for a mutual restraining order that outlines more. Exclusive possession won't get you what you truly want. The issue isn't "possession" but, "parameter" to the homes.

Why "mutual" restraining order? So, you don't look aggressive. For any family law restraining order to work and work well both parties to the matter need to restrain from each other. As well, it isn't confrontational to request a mutual restraining order. (You are not trying to gain an advantage but, to restrict either parent from doing the wrong thing.)

You can put boundaries on pickup and drop off to occur at the bottom of the drive way. That way neither of the parents can be at the front door. You can require notice 24 hours in advance for any pickup-drop off occurring at either house. etc... Communications to be through our family wizard etc...

A mutual restraining order effectively does more to resolve the challenge you face than "exclusive possession" does.

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Originally Posted by magic3 View Post
What should I expect?
Opposition and possibly a cross motion for a mutual restraining order on both parents with a detailed communications plan proposal and other things like I mentioned above.

Quote:
Originally Posted by magic3 View Post
How long will it take?
Hard to say. Based on the complexity of the matter. If the other parent has a place to reside at. Not too long.

Quote:
Originally Posted by magic3 View Post
Will STBX be present?
Yes. The other parent should be there.

Quote:
Originally Posted by magic3 View Post
He's being served tonight because his new lawyer is not on record, and apparently is 'too busy' right now to deal with this, even though his firm has >30 lawyers on staff.... anything else to expect/prepare for?
Just be prepared for conflict to escalate between you and the other parent.

Good Luck!
Tayken
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