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LegalGems
LegalGems, Lawyer
Category: Family Law
Satisfied Customers: 7407
Experience:  Experienced Family Law Attorney
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I've been divorced 2 month and my ex-wife is

Customer Question

I've been divorced for about 2 month and my ex-wife is living in the apartment which was rent to me and the lease is under my name, cable and power utilities under my name as well. The car she drives is under my name and so is the insurance. The apartment still has everything, or most of the things that belong to me.
What would it be the proper procedure to take everything that belong to me at once, even after we are divorced she keeps being a nightmare. Could I, for example just go and drive the car away or that would be a legal issue? the divorce decree states that we keep what we had nobody give anything to the other party.
Submitted: 7 months ago.
Category: Family Law
Expert:  LegalGems replied 7 months ago.
The divorce decree states that the wife is to retain possession and ownership of the personal property, the auto and the leased apartment?
Customer: replied 7 months ago.
the decree states that everything that she had she keeps and everything that I had i keep. But basically everything that she had is what I had and was under my name even our debts, or bank accounts each party would keep whatever he/she had. That I will not ask for anything, and she will not ask for anything either
Expert:  LegalGems replied 7 months ago.
If the decree states that each party is to retain possession of the property they have physical control over, and it essentially awards all the property to one person, then the only way to challenge that is to either appeal the decree, or file a motion to set aside the decree. Normally marital property and debt is divided equitably- in a fair and just manner; and awarding all the property to one person does not meet that requirement especially when the other person is responsible for all the debt. That is a complicated process and it would be best to hire an attorney to help with that; I'm assuming an attorney was not used the first time which may be why this decree was entered. an attorney can be located here:https://www.gabar.org/forthepublic/findalawyer.cfm low cost/free assistance here:https://www.gabar.org/forthepublic/legalaid.cfm
Customer: replied 7 months ago.
Well probably I should've started by mentioning that it was a mutual agreement, the judge just verified with each one of the parties that we both agreed to what the agreement stated, that we were not forced to sign it and we both said yes, and that was it. He was not going to grant anything to anybody, we were on a mutual agreement
Expert:  LegalGems replied 7 months ago.
That makes it more difficult; however if the agreement is clearly one sided, it can still be set aside (based on the judge's discretion).This statute allows for that (based on mistake):9-11-60. Relief from judgments (a) Collateral attack. A judgment void on its face may be attacked in any court by any person. In all other instances, judgments shall be subject to attack only by a direct proceeding brought for that purpose in one of the methods prescribed in this Code section.(b) Methods of direct attack. A judgment may be attacked by motion for a new trial or motion to set aside. Judgments may be attacked by motion only in the court of rendition.(c) Motion for new trial. A motion for new trial must be predicated upon some intrinsic defect which does not appear upon the face of the record or pleadings.(d) Motion to set aside. A motion to set aside may be brought to set aside a judgment based upon:(1) Lack of jurisdiction over the person or the subject matter;(2) Fraud, accident, or mistake or the acts of the adverse party unmixed with the negligence or fault of the movant; or(3) A nonamendable defect which appears upon the face of the record or pleadings. Under this paragraph, it is not sufficient that the complaint or other pleading fails to state a claim upon which relief can be granted, but the pleadings must affirmatively show no claim in fact existed.(e) Complaint in equity. The use of a complaint in equity to set aside a judgment is prohibited.(f) Procedure; time of relief. Reasonable notice shall be afforded the parties on all motions. Motions to set aside judgments may be served by any means by which an original complaint may be legally served if it cannot be legally served as any other motion. A judgment void because of lack of jurisdiction of the person or subject matter may be attacked at any time. Motions for new trial must be brought within the time prescribed by law. In all other instances, all motions to set aside judgments shall be brought within three years from entry of the judgment complained of.
Customer: replied 7 months ago.
so, i cannot get anything of my property? I don't get along with her and I want to take my stuff when she is not around, can I enter the apartment and take my stuff?
Expert:  LegalGems replied 7 months ago.
That would be trespass, breaking and entering, theft if the decree gave the property to the other person. The only way to do it legally is to get the decree set aside and a more fair one entered unfortunately.
Customer: replied 7 months ago.
So, i cannot even take my car? what can she do if i took it? report it stolen? title, registry and everything is under my name. Could she press charges and get me arrested for it or she can just appeal the decree and then both go to court again to see what the judge decides? what about removing the services that are under my name?
Expert:  LegalGems replied 7 months ago.
Yes, it can be reported stolen if the decree states that she is the owner; the decree would be proof. Normally the decree will also require the person to execute documents to effectuate a transfer. I would suggest having an attorney review the decree to be certain it gave everything to the other party and if so, help with setting it aside. If it is stolen, charges can be pressed- that would be a criminal matter separate from the divorce issue. The services should have been discussed in the decree; if not, they can generally be cancelled at will if there is no court order re: that issue.
Customer: replied 7 months ago.
The decree states that I keep what is mine and she keeps what is hers. The car is mine and there is no document addressing a transfer to her, because she willingly accepted not to keep anything that was my property, ie. The car
Expert:  LegalGems replied 7 months ago.
I'm unclear - in the first 2 comments it was stated that she was to keep what was in her possession. Then it was confirmed that the decree stated she was to keep everything in her possession. If the decree states that the true owner (ie titled owner) is to keep the property, then that is entirely different and makes more sense. One would simply make a request as to when one could pick up their items (assuming there are no restraining orders). If the other person refuses or ignores, one would petition the court, requesting the court to set a time. If that time is ignored, the next step is to bring a motion for contempt which may include fines, attorney fees, even jail time.
Customer: replied 7 months ago.
Sorry for the confusion, the true owner of whatever item gets to keep it. But the other party will not give anything to the other
Expert:  LegalGems replied 7 months ago.
It can be confusing - typing instead of talking; I just want to be clear so I dont steer your wrong;so if they refuse, normally you'd send a certified letter, detailing the dates of refusal (or when calls/texts were ignored), requesting a window of 3 dates to get the items, and then a statement stating that a contempt citation will be sought if the party continues to knowingly and willfully violate the decree/order.
Customer: replied 7 months ago.
Yes, but I want right now to take my car that is parked on the parking lot and she even left it unlocked, most likely to allow anybody to steal it or vandalize it. I do have my own keys.
Expert:  LegalGems replied 7 months ago.
The divorce court has jurisdiction over the issue; if the decree states that property is to be exchanged, then the exchange is supposed to take place with the parties' knowledge (ie arranged date and time and location). So the proper procedure is to go through the courts and seek a motion for contempt.
Expert:  LegalGems replied 7 months ago.
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