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Question #7:
Great website. My husband & I have been residents of NYS all our lives and were married here in 1988. It has been a very abusive relationship and he abuses drugs and alcohol. I filed for divorce in 2001 but backed out of it because of my fear of this man. He was arrested for domestic violence (a few months before I filed for divorce) and issued an order of protection but he was never ordered out of the house. The night they arrested him they told me

that for my safety I should leave. Because of this he was allowed to stay in the house and the 3 children & I were forced to leave for our safety. My lawyer said that he could stay in the house but I had to file a petition in the court for exclusive residency if I wanted to get back in. This is totally messed up. Then he burned up all my clothes and other possessions that I was not able to retrieve because of 1. him changing the locks and 2. my fear of going back and getting hurt if I did break a window to get in, and I was told that he could do that because they were a "marital asset".

The same when he broke into my business and vandalized it, marital asset and anyone can damage their assets if they want to. Then he put advertisements on the radio using our last name instead of my actual business name saying that "John Smith is no longer in business" and saying that he no longer sold the product that I do. (Even though he was never part of my business, but it is a marital asset, purchased 1993) The radio station just said that he paid for the ad and he could run it because he did not use my business name so it wasn't false advertising and the ad could mean that he himself was no longer selling the product. Then they suggested that I purchase advertising with them to clear up the situation. (How sick on their part). The list goes on & on and I ran out of money to fight him. Everything he did he got away with and I became an emotional basket case and moved back in fearing that I would eventually get too depressed to take care of the children. I moved back in to get him to stop. I just wanted it to end. Well, 3 years later I can't take it anymore. My questions are, how come he was not asked to leave when he was arrested & issued an order of protection, how could he advertise like that? Also, for almost 5 months now I have been "living" in a separate part of the house and have not had sexual relations with him. If we were to get a separation agreement would I still be able to live in this house? Would this fulfill the separation agreement because I am not having sex with him?

I cannot afford to leave and pay for 2 places. I am on the mortgage along with him and have pristine credit and if I leave he will not pay the mortgage (why should he, his credit is shot). Can he get me for abandonment because I am not involved sexually with him and use this for grounds for divorce if we are in the same house? (Please tell me he can). Thank you
From the information that you provided above, you should have been able to get an order of protection which provided that your husband not you and the child leave the family residence. I don't understand why your attorney was unable to help you with this matter. It is even more difficult to understand how someone who has suffered both physical and mental abuse would return to the home and subject herself once again to this same abuse.

In any case, the advice you have been given regarding marital property and the right of your husband to destroy your share of it is totally incorrect. As long as you are married the property which is in your name belongs to you , not him. Such property,(if acquired during the marriage) becomes "marital property" only upon suing for divorce. And even when it's marital property, you still have an approximately 50 percent interest in such property, and he cannot take or destroy it ,or he will have to repay you for the damage caused to your percentage of the property.

With regard to the question about constructive abandonment, constructive abandonment requires that the defendant refuse to have sexual relations with the other party and that this has continued for a period of one year. It does not matter whether you are living in the same house are not.

If you are living in the New York City metropolitan area, please call at 212-370-1660 to discuss the matter in greater length and to arrange for an appointment to see if we can mediate your divorce.

Leonard M. Weiner, Esq./Divorce Solutions
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