Question: My girlfriend is married. They have two kids and jointly own the home that they live in. He’s Navy, but they’re not in military housing – like I said, they own jointly. She had an attorney draft a separation agreement, but he’s ignoring her. He is manipulative and locks her out of the house. How can she get him to leave? She contacted his command, but she feels unsafe in the house with him and the kids. What should she do?
Great question – and I’m happy to begin to answer it.
First thing’s first: If I talked to your girlfriend, I’d tell her to come in for a consultation with a lawyer before she takes any drastic action – like reaching out to his command. I know she has already done so and it seems like it had little impact, but contacting someone’s command rarely helps and sometimes seriously hurts a family law case.
If she feels unsafe, and especially if her soon-to-be ex has been physically violent, she can get a temporary protective order. Usually, a temporary protective order (or a TPO) is issued by the court or magistrate’s office for a short period; she will have to go to court and have a full hearing in order to get a permanent protective order, which can be issued for two years (or four years, if he has had a previous protective order issued against him). Keep in mind, too, that this is a strategy that should be discussed with an attorney beforehand, especially if his job requires security clearance. I know, I know – you may not care if he loses his job (and may even relish the thought), but the problem is that, without a job and without income, he potentially loses the ability to pay either child or spousal support (or both) and, if something terrible happens (like that he is demoted or discharged), could lose or lessen the value of any retirement that he has generated up until this point.
Safety is important, but so, too, is strategy.
Maybe, depending on the circumstances, the better move would be for her to go elsewhere, especially if the alternative is pursuing a protective order or reaching out to his command that could have significantly negative career-related consequences. Take some time to really consider the possibilities before jumping headfirst into any action.
The court is often reluctant – as you can imagine – to kick someone out of the home that they own and are paying for. The protective order, if one is issued, might accomplish this; if there’s family violence, the judge may well grant the victim the right to exclusive use and possession of the property.
Alternatively, your girlfriend could ask for exclusive possession at a pendente lite hearing, if she were to file for a divorce on fault based grounds. Currently, she has just drafted a separation agreement, but that would have been an effort to keep things out of court. Filing for divorce, especially on fault, may be more expensive, but it may also be the shove that he needs to either participate at all or to take the separation agreement she proposed more seriously.
This is always a particularly hard time for a divorcing couple, because there is neither a separation agreement or a court order to guide the parties’ decisions moving forward. There has been no division of the marital assets, so most couples aren’t able to afford to move out and move on, even if they wanted to.
Even at a pendente lite hearing, even if the court felt that the soon-to-be ex-husband was abusive and ordered him out of the marital home, that doesn’t necessarily mean that he’ll be ordered to continue to contribute to the household expenses in the same way that he did. After all, he’ll have to secure somewhere else to live, and that costs money. For most couples, paying for a separate living space after separation is an incredibly difficult burden to bear financially, especially when no other division of the assets and/or liabilities has taken place.
Still, exclusive possession is one of the things that the court could, theoretically, grant to one party or the other. Probably the most likely scenario would be that one party is abusing the other, but it is also commonly granted in situations where one party has already left the home. I don’t mean to suggest, though, that anything about this is truly all that common; less and less couples litigate their divorces all the time. These are truly the most contentious cases, and – though, as lawyers, we handle a lot of them – are the exception, rather than the rule, in how breakups are usually handled.
Still, going to court is an option, and it may be your girlfriend’s only option, if her soon-to-be ex is refusing to negotiate the separation agreement paperwork.
Keep in mind that going to court isn’t like putting a train on a track. It doesn’t necessarily mean that your case will be resolved in court; many couples start out litigating and end up ultimately negotiating a result once they’ve had a bit of experience with the court. No one really wants to go to court, after all, and, generally speaking, court cases cost more money, take a lot more time, and give the couples themselves the least control over how their assets, liabilities, and responsibilities will be divided.
If your girlfriend’s husband isn’t participating, she may have little choice – though that doesn’t mean that she’ll get what she wants (exclusive possession). It may, though, still be the impetus that her husband needs to start participating because, whether he likes it or not, the case can begin to move forward and, with or without his own counsel of record, things will start happening.
She should talk to an attorney, sooner rather than later, to get an idea of what the best course of action will be for her and her children.
For more information, to request a copy of our divorce book for Virginia women, or to register to attend an upcoming divorce seminar (featuring live Q&A with our attorneys, so she can start gathering info for herself), visit our website or give us a call at 757-425-5200.