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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Family Law
Satisfied Customers: 38272
Experience:  I provide family and divorce law advice to my clients in my firm.
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Hard to briefly explain but Ill try: Have one child, 16

Customer Question

Hard to briefly explain but I'll try:

Have one child, 16 w/complex special needs. Has been hospitalized and in residential treatment out of state for 17 months. I am the one who has done all of the work managing his case, finding doctors, specialists, placements, schools, special services, etc. That in and of itself has almost been a full time job.

I work part-time, barely able to hang onto my job due to constant issues arising with my son's treatment, having to move him 5 times in past year and much more. Ex has done nothing whatsoever to participate other than obligatory weekly phone meetings and visiting son, but as far as work involved in his case, research, coordinating, care, placements, etc. absolutely nothing.

Our custody agreement was mediated by a judge out of court last June. At that time, ex was allowed to remain in house as per the PL order. Also at that time, son was in hospital and it was unknown where he would go next. Custody agreement stated that if son were to come home he would "reside in marital home" with me.

Equitable distribution trial was in January of this year. By that time, son was long out of hospital and in residential treatment. Ex and I agreed to sell the home because everyone was under the assumption that son would remain long term in residential treatment. Judge ruled house would be sold and until that time both parties would split mortgage and utilities and that both parties were entitled to remain in the home until sold. There was NO time or date stipulation whatsoever and no reference to such in the order.

Shortly before trial Ex had moved in with his girlfriend an hour away. As a result, not only did I continue to manage all of my sons' treatment and care, but also initiated, coordinated and had to deal with multiple repairs in the home including a large construction job from storm damage. Ex did absolutely nothing to participate other than paying whatever his portion of out of pocket was for a few repairs.

Since the trial, son had to be moved twice and ultimately ended back in the hospital where he is currently. All of this has involved a tremendous amount of my time and has put my part-time job at jeopardy because I was understandably unable to be a reliable/dependable employee.

Despite the fact that Ex was doing nothing to participate in handling repairs or son's case, he started issuing threats via email and on phone calls that the house must be listed asap.
I explained on several occasions that due to my son's situation now being in a somewhat state of flux and medical issues arising that we need to first see how that will play out before we can establish a listing date.

My son went back to the hospital in early April and it was subsequently decided by his treatment team that he will come home in about 2 months and receive further treatment here. So now, the circumstances that are in place replicate exactly the circumstances that were in place when the custody agreement was made—my son is in the hospital and is coming home to live, therefore per custody agreement he would live here with me.

While I still ultimately wish to sell the home, due to the change in circumstances and my son coming home in 2 months at best, XXXXX XXXXX would it be physically impossible for me to accomplish everything that needs to be in place for my son PLUS list the house, find a place to live, pack up and move, but even if that were humanly possible I would not want to sign a year lease somewhere when a) I first have to find an appropriate day school placement for my son and don't know where that will be b) We need to be sure that things will work out with his new treatment team here and c) i would not want to put him in a situation where he's coming home to a completely unfamiliar neighborhood, people, and surroundings, and the possibly have to break a lease and move him again should things not work out with the treatment, neighborhood or other factors.

So after all of this, my question is:

Custody agreement established in June 2012 states: "Son is currently in hospital. If comes home to live he will reside in "marital home" with me. This is exactly what circumstances have changed to be as of now.

Divorce decree (ED trial) January 2013 states: "Parties agree to sell home. Until home is sold parties will split mortgage and utilities and may both live in home if they choose."

In your opinion, given the change in circumstances since the trial which now replicate custody agreement, which order would take president over the other? And what would your recommendation be on how to proceed?

Thanks!
Submitted: 1 year ago.
Category: Family Law
Expert:  Dimitry K., Esq. replied 1 year ago.

Thank you for your question. Please permit me to assist you with your concerns.

I have gone ahead and read in detail your situation, and understand your concerns. However the answer here is very direct and very specific--what governs is the latest order, since that order overturns and overwrites the prior order that was put in place. It is irrelevant if circumstances changed or not, the courts would focus on the latest order or decree. As that occurred in January 2013, that would be the controlling decree in this matter, even if it is not really the decree that you wish would take precedence. Furthermore, since that decree calls for a sale of the home, you are then obligated to provide best means of attempting to comply with that order.

There are really only two potential recommendations here. The first is to comply with the decree as listed, since you and your ex are both bound by those conditions. The second is to attempt to take this back to court, claim that there was a significant change in circumstance, and a request to get the initial order renewed. I must, however, be realistic and state that it is very highly unlikely that courts would agree to modify this order especially since it has only been in place for less then 6 months.

Good luck.

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