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My ex-wife and I have already had a divorce agreement in place

concerning the majority of our...
My ex-wife and I have already had a divorce agreement in place concerning the majority of our asset divisions. the house was to be sold and i was to be responsible for cleaning and repairs to the property due to having rented it to a family member (while we were still married). the house has been cleaned, some repairs have been made, all belongings of mine and the renters have been removed from the property. She still has items in the property to which she had specifically stated that she wanted. she and her lawyer have been riding me to do everything as fast as possible to get the property sold, yet still has not made an effort to remove her property from the home. would her property being in the home constitute as "occupying" the property? The divorce is in PA, and the property is in NC.
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Answered in 3 minutes by:
7/9/2013
Brandon M.
Brandon M., Family Law Attorney
Category: Family Law
Satisfied Customers: 12,620
Experience: Attorney experienced in all aspects of family law
Verified

Brandon M. :

Hello there.

Customer:

hello

Brandon M. :

Thank you for your question.

Brandon M. :

Occupation of property can mean different things in different contexts. For what purpose are you wondering if this constitutes occupation?

Customer:

part of the agreement was that while the home was being rented by a family member of mine then i was 100% liable for the payment, knowing my relative had been in a car accident and was behind on money. however the way it was stated is that whoever is occupying or has family occupying is liable for the payment. that meant she had no payment from january forward. now she is trying to take me for a couple thousand for other repairs and demanding it in two weeks. i'd like to know if she should have been supplying a portion of the payment due to her having belongings in the home so i can chip away at the amount they are demanding.

Brandon M. :

How would you describe the contents belonging to her still inside the home? 4 boxes worth of personal belongings? One bedroom worth of furniture? A few pieces of silverware? To what extent are her personal effects imposing on the occupation of the home?

Customer:

two dressers, one china cabinet full of china, a couple large pictures, a dvd rack, and a few boxes of misc items.

Brandon M. :

Thank you. I do realize that these are just estimates. How large is the home?

Customer:

as they have rushed me to get cleaning and repairs done to move forward in the selling process, i believe these items remaining would also hinder the sale of the property

Customer:

4 bedroom, a bit over 2000 sq feet

Brandon M. :

Thank you. And just to confirm, the agreement itself does not specifically define "occupation" or "occupying" the property, correct?

Customer:

i do not believe, i would have to check

Brandon M. :

It probably does not, but if you later discovery that it is defined, please let me know. That said, please allow me a moment to write out the answer to your question. Thank you for your patience.

Brandon M. :

I should start by saying that because the nuances of every situation are different, this information should not be construed as complete or advice without consulting in person with counsel. That said, when a word in a contract or agreement is not defined under the law, and when it is not defined in the agreement itself, the courts will interpret the language based on the ordinary, plain meaning of the word. A Pennsylvania divorce agreement would be interpreted under Pennsylvania law, and for the purposes of a divorce agreement regarding occupation of the spouses' home, the law does not specifically define the word occupy or occupation (or any other derivative of the word). So if a divorce agreement uses the word "occupying" and that word is not otherwise specifically defined in the agreement itself, the word is interpreted based on the plain meaning of the word.

For this, the courts will rely on their own familiarity of the word, or the dictionary. "Occupying" means to take up space in a way that holds it to the exclusion of others. If you occupied a hotel room, for example, your occupation would be exclusive to others--the hotel would be unable to legally or physically rent the room to anyone else. So it's certainly possible to occupy a home with personal property.

That said, there are degrees of occupation. If your wife had a toothpick in the home, I doubt that you would claim she was occupying within the meaning of your agreement--the toothpick would be unimposing and, if you wanted to remove the burden it imposes, you could simply put it in the house's garage, basement, or crack between the bathroom sinks. It would be immaterial. Further, if your wife had half the rooms in the house completely filled with boxes like the rooms were storage lockers, she would not be able to deny with a straight face that she was occupying the home with her boxes because they were essentially taking over the house. So for the purposes of a binding agreement, it is not just a question of whether there is some occupation, but whether the occupation is a material occupation.

You had said that, in this 2,000 sq.ft. house, your wife is keeping two dressers, one china cabinet full of china, a couple of large pictures, a dvd rack, and a few boxes of miscellaneous items. I can't see these items, but that description suggests (as I mentally visualize it) that the items could take up perhaps half a small sized room, or 1/4 of two car garage. As I mentioned, the nuances of ever case are different so this should not be construed as complete or advice, but I would have a difficult time viewing the use of that much space in a 2,000 sq. ft. house as occupation of the house for purposes of determining who is liable for the space. If I misunderstand the situation, please let me know, but I hear that description and I think to myself that even if the items couldn't be moved into a corner of the garage, they are not items that would typically inhibit the preparation of a home for sale, or presentation for sale.

Brandon M. :

So being completely straightforward, although it's clear that your ex-wife is probably enjoying being on your case about getting the home ready and her attorney is happy to oblige, where the question is whether personal property constitutes an occupation of a home, the answer is that it is generally boils down to a question of not whether there is any occupation, but whether the occupation is material.

Brandon M. :

Does that make sense?

Customer:

kind of, and i just found the agreement and figured out i am looking good on one aspect, and not so much in another.

Customer:

they only have the renting portion directed toward me and my family and friends, and not toward her, rather unfortunate being that they were by technicality at that point relatives through marriage but i would have considered them friends, to a degree.

Customer:

and it states residing in the home. the good side for me, is when she chose to advance the full payment, being that she chose to do so, they can adjust that on the back side of the sale.

Brandon M. :

Interesting.

Brandon M. :

Well, I appreciate your honesty because I do try to be as clear as possible, but this forum isn't always as natural as sitting across from one another in an office. Maybe you could summarize back to me your understanding of the answer, and I can clear up any fuzziness?

Customer:

what i am seeing is, she doesn't have enough materials in the house to constitute as a hinderance to the sale of the property being that they are material goods that have the ability to be relocated, and therefore would most likely not be considered to be occupying the home. unfortunately, as i just stated after re-reading it specifies my problem toward me and has no reversal as most agreements would, and reads residing in the home, rather than occupying.

Brandon M. :

Yes, and I have to apologize, I originally misunderstood what you were telling me about her residing in the home (versus occupying), but I am clear on that now.

Brandon M. :

So I'm not quite sure where that leaves us. In light of this information, do you have any new question?

Customer:

if it wasn't 4:30 am and my brain was still fully cooperative, i'd potentially have questions. as i see it though, i am going to get my relief i need anyway due to a clause in the agreement. i think anyway.

Brandon M. :

I do understand. Is there anything else I can do for you tonight? I do I hope that this has been as helpful as possible under the circumstances.

Customer:

no sir, at this time i just need to sleep and quit thinking about all ofthis.

Brandon M. :

Certainly. I do wish you the best. If you are so inclined, please feel free to leave a positive rating for me once you are completely finished. Thanks.

Customer:

i will review everything again tomorrow. thank you.

Brandon M.
Brandon M., Family Law Attorney
Category: Family Law
Satisfied Customers: 12,620
Experience: Attorney experienced in all aspects of family law
Verified
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Category: Family Law
Satisfied Customers: 12,620
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