Question #7

From the information that you provided above, you should have been able to get an order of protection, which provided that your husband 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 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.

Concerning 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 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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