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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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  #1  
Old 02-22-2018, 01:07 PM
metro metro is offline
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Unhappy Common-law property situation

Hello,

I have a common-law partner who has been living with me for 6 years. Our relation deteriorated for last 3 years, sleeping in a separate bedroom for last 4 years and we both agree we are impossible and should separate, but he refuses to move out. We have a constant silent conflict and aggressive fights once in a while police involved/ the kids exposed to. He refuses any discussion with me or with the other third parties such as mediator, his friend, or lawyer to resolve for official separation. We have a toddler daughter, and my teen daughter from previous marriage is living in the same house.

I am wondering if there is any a quick way to have a physical distance with him to avoid further conflict which would be accelerated once I officially move forward to resolve custody/financial issue at the court. Here is my question;

1. Would it be good idea to move out with my children ( one with him and the other with the previous marriage) to an apartment temporary?

2. Or can I sell or lease the house without his approval and move to another with the children? ( transferring mortgage ) Can he still remain at the property?

3. Can I kick him out officially and stay at current home with the children?

I am the sole owner of the house and his name is not on deed/mortgage, his name is none of the bills and accounts. It is my understanding that since we are common-low, he is not entitled to the equal property division but could claim for constructive trust or spousal support.

One lawyer told me that since I am the sole owner and it is common-law, I can write an eviction note & enforce through police but I might be punished for that later at the family court if he is not capable financially.

He is self-employed contractor, physically fit, has a truck and a lot of equipments stored at his shop he rents. None of his finance has been disclosed to me and all I know is he never filed tax last 10 years. I have been paying all the bills for last 4 months since he stopped his payment to me which used to be around 600-800 monthly. Will I be punished sill if I evict him? My income is around 35K annual and very difficult to keep on.

Thanks for your advice.
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Old 02-22-2018, 01:56 PM
OrleansLawyer OrleansLawyer is offline
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Quote:
1. Would it be good idea to move out with my children ( one with him and the other with the previous marriage) to an apartment temporary?
That is very fact dependent. The answer is "probably not" since you own the home. This would be worth discussing with a lawyer.

Quote:
2. Or can I sell or lease the house without his approval and move to another with the children?
It is your property; do what you want with it.

Quote:
Can he still remain at the property?
Assume he will remain there unless you force him to move - your real question is, how can you remove your unwanted tenant?

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3. Can I kick him out officially and stay at current home with the children?
Yes. Treat him like a month-to-month tenant and serve him with notice of eviction.

Some people change the locks to boot them out (he does not have a right of occupation of your house if you were not married and he was not on title). I believe the now-homeless spouse could claim an unlawful eviction. I have not seen this actually occur within the context of family court.
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Old 02-24-2018, 09:31 PM
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Originally Posted by OrleansLawyer View Post
That is very fact dependent. The answer is "probably not" since you own the home. This would be worth discussing with a lawyer.



It is your property; do what you want with it.



Assume he will remain there unless you force him to move - your real question is, how can you remove your unwanted tenant?



Yes. Treat him like a month-to-month tenant and serve him with notice of eviction.

Some people change the locks to boot them out (he does not have a right of occupation of your house if you were not married and he was not on title). I believe the now-homeless spouse could claim an unlawful eviction. I have not seen this actually occur within the context of family court.
Thank you OrleansLawyer

"Yes. Treat him like a month-to-month tenant and serve him with notice of eviction."

I check the procedure for eviction, but it looks like the sheriff does not enforce it unless the eviction order is issued by the landlord tenant board. Landlord tenant board said the Landlord tenant act does not apply to the case that a tenant uses the shared space like kitchen and bathroom, and suggested a common-low issue need to be resolved at the family court.

I am not sure if I need to file the application including the exclusive possession of property even for the common-law relation so I can bring an urgent motion for that.

Thanks for any further information if anyone has any experience related to.
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Old 03-07-2018, 10:54 AM
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I served the notice but he said he woud not move out.

I called Sheriff/Police and asked about enforcing eviction, but neither would not able to do without the court order.

So where to start now? Filling the application to family court for eviction order?
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Old 03-07-2018, 12:14 PM
OrleansLawyer OrleansLawyer is offline
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Filling the application to family court for eviction order?
Landlord tenancy board for eviction order. Treat him like a tenant.
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Old 03-08-2018, 09:26 AM
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Originally Posted by OrleansLawyer View Post
Landlord tenancy board for an eviction order. Treat him like a tenant.
So much so that you should talk to a lawyer that practices primarily in real estate law. OL is 100% correct. Don't bring this matter to family court. It is way faster to go to the LTB than Family Court.
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Old 05-08-2018, 02:15 PM
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Thanks, this was resolved without going to the court, so far.
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Old 05-08-2018, 02:43 PM
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At least that hurdle is over with, I hope you can reach a settlement quickly with regards to child support and access without having to go the court route.
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