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socrateaser, Lawyer
Category: Legal
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Experience:  Retired (mostly)
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Live in Missouri...going thru establishing custody with my

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Live in Missouri...going thru establishing custody with my ex girlfriend...bought a house together in both our names....she didn't work while together but after the split she wanted house...I agreed she could keep it make the payment and have it refinanced in her name only within 6 mo....well she has gotten pretty crapy with custody issue...and now the house thing was supposed to be settled with the custody court...all at once my attorney said...but a year and a half later still no court...keeps getting pushed off...Now she is refusing to pay anymore payments on house...I have paid 3 because she defaulted and it's marking my credit...I have a business and cannot have bad marks because of the large amounts of inventory I buy on credit for the year...she won't get out and won't pay anymore attorney says we can't make her get out she is on the loan...he says we can't do anything about it until court...really? 3500 dollars and probably 4 months more before court and actually getting her out! She won't let me in the house or try to sell it...what are my rights here? My attorney and everyone acts like this is no big I am still paying her childsupport that was temporarily ordered with temp. visitation! They say I can't get her evicted....what can I do? Can me and my wife move in with her to try and get her out...sounds stupid I know but this is not right...she knows her rights obviously and thats why she is not getting out and won't pay while she continues to live there!

Owners whose names are XXXXX XXXXX to real property as tenants in common or joint tenants, have the absolute right to full possession of the property. This rule of law is older then the State of Missouri -- older than the USA. It goes back 500 years to jolly ole England.

So, yes, you can move into the property. However (and this is a big issue), if a physical altercation ensues, or some other breach of the peace, then law enforcement could decide to arrest you, your spouse, your ex girlfriend, or all of you, to avoid a serious problem. And, one of you would then potentially be able to get a domestic violence protective order against the other, which would effectively evict the other person(s) from the property.

Consequently, you need to be very careful about how you accomplish this move in. If you know what the occupant's schedule is, and you can do all of this when she is not home, then that's what you want to do. You cannot change the locks, without giving her a new key -- that's called an "ouster," and you can be sued for "ejection" (also a very ancient legal action). And, she can get a DV order against you.

The botXXXXX XXXXXne is that you need to have audio/video of everything you do, so that you can avoid any claim that you have engaged in any abusive conduct or violence. The fact that your spouse will be living with you, gives you two witnesses against one, but that may not be enough. Keeping a tape or dictation recorder running is the best way to protect yourselves, because without that sort of evidence, you can practically guarantee that this will all "go south," and you will need proof that you are not the bad actor(s).

Please let me know if my answer is helpful, or if I can provide further clarification or assistance.

And, thanks for using!
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Customer: replied 3 years ago.

We do not want to do this unless it is the only option but are going broke as we I have the right to have the house listed and sold or do I need her permission also? If I decide to do a move will not be not good! Can she claim that this is her residential property and since I had to get a new place she has more rights than I do to stay there since I have established a new address...kind of like a landlord and tenants rights?

Customer: replied 3 years ago.

are you still there?

We do not want to do this unless it is the only option but are going broke as we I have the right to have the house listed and sold or do I need her permission also?

A: You need permission. You cannot unilaterally sell the property, without the other owner's consent -- unless you only want to sell your interest. However, it's very difficult to get anyone to purchase a tenancy in common interest with a preexisting owner. So, it's usually not a viable option.

If I decide to do a move will not be not good! Can she claim that this is her residential property and since I had to get a new place she has more rights than I do to stay there since I have established a new address...kind of like a landlord and tenants rights?

A: No. You have the right to possession of the property, as long as your name is on the deed, unless the court orders otherwise, via a restraining order to protect the other owner from domestic violence.

Hope this helps.

PS. I apologize for the delay. The system didn't notify me of your follow-up question until just now.
Customer: replied 3 years ago.

No restraining orders have ever been filed...she is the hot head! Thanks for your help in this matter!! Finally an answer to my rights instead of just hers...I think I am paying my attorney for her benefit! Have a great day!

Customer: replied 3 years ago.
My attorney told me that since there is a custody case the family courts automatically put in an order for protection for both parties that neither side can enter the residence of the I guess the old law doesn't get to apply to me again her rights override mine to my property....any suggestions on how to get a judge to make an order for the house to be sold quick so I don't have to pay for her to live there another 4 to 6 months....can't even sue her when its all done to get my money back because my attorney says it will be a waste because she will never pay it since she doesn't have any money....really frustrated!
Under RSMo 452.315 2., "As a part of a motion for temporary maintenance or support or by independent motion accompanied by affidavit, either party may request the court to issue an order after notice and hearing: (1) Restraining any person from transferring, encumbering, concealing, or in any way disposing of any property except in the usual course of business or for the necessities of life and, if so restrained, requiring the person to notify the moving party of any proposed extraordinary expenditures and to account to the court for all extraordinary expenditures made after the order is issued; (2) Enjoining a party from harassing, abusing, molesting or disturbing the peace of the other party or of any child; (3) Excluding a party from the family home or from the home of the other party upon a showing that physical or emotional harm would otherwise result; (4) Establishing and ordering compliance with a custody order and providing for the support of each child."

The above-quoted restraining order provision is not automatic! Moreover, RSMo 452.315, arguably, only applies to married persons. This is obvious from the statute, which in Subdivision "1" is express, and in Subdivision "2" is implied, since the statute discusses the restraint of transferring property over which the court has no jurisdiction, given that there is no marital estate where parties were never married.

Consequently, I suggest that you actually review your court orders and see if there is, in fact, such an order. If there isn't, then you can move in. Of course, the court can order you to move out, after you move in, but, to say that you are already excluded via an automatic restraining order is legally false (in my opinion). There may be a local court rule that establishes an automatic restraining order for custody matters, and you can search for that at this link.

If none of the above is useful, then you would have to file a separate civil action to "partition" the property. You may be able to consolidate the action with your current custody and support actions.

Partition is a lawsuit where the court first attempts to physically divide real estate (which in the "old days," was pretty easy, but modernly is usually impossible, unless the property is a farm or ranch with no buildings); and if the court cannot physically divide, then the court orders the property sold and the proceeds divided.

That's the traditional legal option, and it doesn't require you to ask the family court for anything. In fact, the family court has no authority to divide/partition your property, because you were never married. The only jurisdiction that the family court has is to find that the children would suffer irreparable harm if you were permitted to move into the property.

All of the above being said, family court judges have a strong tendency to "invent law" and challenge litigants to appeal. So, you could meet with heavy resistance concerning the house. But, once again, to say that an automatic restraining order currently exists, without actually finding that order in the current orders issued by the court -- and to say that you cannot force the partition of the property, merely because your children currently reside in the property, is, in my view, an unnecessary assumption, because there is no law flatly providing for these adverse outcomes.

Hope this helps.