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Dave Kennett
Dave Kennett, Lawyer
Category: Family Law
Satisfied Customers: 27689
Experience:  25 years experience as practicing attorney
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I am separated from my husband of six months. I have an attorney

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I am separated from my husband of six months. I have an attorney who is yet to file my petition for divorce. My husband resides at our home I moved out. My husband claims that he cannot no longer pay the mortgage on the home. He wants me to pay half. I need to know my options. Should I move back into the home to pay my mortgage? I cannot pay for two places. He is intentionally not paying. I do not want my credit ruined. He does not want to sell the house, he cannot afford to refinance, he does not want to do anything but be difficult.
Dear JACUSTOMER - I'm not certain from your facts why the divorce has not been filed but until you can get the case filed and get court orders as to the division of property and as to who is responsible for what you have no power to force your husband to do anything. Obviously you can make the mortgage payments to protect your credit and if you own the house with your husband you have every right to live there. Until the mortgage is paid off you are going to be liable to the lender regardless of what the divorce court orders since the divorce court cannot order the lender to release you. Until the divorce is filed and there are court orders the house is simply the marital residence whether you are both living there or not. So the best way to solve your problem is to get the divorce papers filed and get temporary orders from the court to make your husband responsible for the house or to give you exclusive use if you want to move back in and pay the expenses. Eventually the house should be sold and the proceeds divided as part of the divorce otherwise you will both be liable for the mortgage until it is paid and that plan generally does not work in the long run. Obviously your husband is not going to cooperate and it is a waste of time making phone calls since even if he agrees to something you can't hold him to it unless it is also ordered by the court. You definitely need to contact your attorney and get the divorce papers filed. If your attorney is neglecting your case you can file an ethics complaint with the Bar Association for attorney neglect and you can hire another attorney.
Customer: replied 4 years ago.

I am upset that my attorney has not filed, I paid him over a month ago and still he has not filed. It's to late to try and get another. My lease is up on the 18th of June. I am debating to move back into the home until the final outcome. I can pay the mortgage with no problem, but I cannot pay for two places. My husband has changed the locks and I want access to move back into my home to protect my credit and pay the mortgage on time. How can I get access to move back in? What will it mean if I move back in after I have left? I just want my mortgage to be paid on time because I am responsible for it.

In order to get back in without his permission you are going to need a court order which can be obtained only if you get a divorce action filed. I know your husband is a problem but from your facts I really think your lawyer is more of a problem since a divorce action is the only way to force your husband to do anything. You need to contact your lawyer and find out why nothing has been filed and if your lawyer puts you off then I definitely would file a written complaint with the Bar Association.
Customer: replied 4 years ago.

One more question. If he files the court order with my request. How long before I receive an answer to my request? I will contact my attorney tomorrow.

Many courts will issue orders for support or exclusive use of the premises very quickly. Every court is a bit different so there's no set amount of time but you should be able to get something within a week or so as to being able to get into the house and to get some spousal support.
Customer: replied 4 years ago.

Is it possible that he can ask me for spousal support? I tried to pay him my half of the mortgage and he refused because I told him that I was partly responsible. He changed the locks on the house, so I let him have possession. I don't need the support. I just want to pay my mortgage on time until things are finalized. I want access to my home if I have to pay for it.

Either party can ask for support but generally whoever files first will get the temporary order unless there is a large disparity in income. You don't have to ask for support and you can simply ask for exclusive use of the premises or at least access to the property.
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