A of A & Separation


#1

Confused as to what to do. Jan of 2012 Husband & I were planning our 10th anniversary for 2013. Things were all good until we started fighting, alot. I’m ADHD and went off meds for few weeks because of finances. He’s all nasty calling me names because I went off my meds. So now it’s April and we have a BBQ with friends over. He gets drunk and later that evening after everyone leaves he starts chatting on Facebook. Monday morning comes & I check his phone and see that there is a chat from Facebook to a mutual friend of ours. How she is attracted to him and he to her, how she wanted to kiss him but his “wife” was there…on and on and on it goes. Does he want “her” to be a “play toy” or something more. I confronted him the next day and he denies it all. I contact “her” and she admits to the conversation and states “there is nothing going on”… By this time I’m freaking out because this is the 2nd time in the past 5 years I caught him cheating “or attempting to cheat” Then he tells me he wants a separation but he refuses to move out and I wasn’t about to move as I have 2 dogs & Iguana. We rent a house and not too many places allow big dogs… So, in his mind we are separated… I keep telling him we’re still married and he needs to move out if he wants to separate. But Nope he wont. Meanwhile, he goes out and doesn’t come home til the next morning or even the next 2 days. He’s sleeping somewhere but wont tell me where. Says it’s non of my business… I check phone records and sure enough, he’s talking to “her” morning, noon, night. He even talks to her when he is in the house. I over heard him telling her how much he loves her and I saw a text from her stating how much she loves him…

Flash forward to now, July and he finally says he’s moving out. Every day there are things he’s taking out of the house. He says its “stuff” he wants. So this past weekend he comes back to the house and grabs clothes, other things he wants, says he cant take the TV from the bedroom because he has a small room and it wont fit. He also says he cant take other items for the same reason… gives me the key and say’s he’s out…

Now he tells me he wants to come back in and take more stuff. My questions are:

  1. Can I file for A of A, 2. does he have a right to come back in to take more things… I’ve since drawn up a Separation Agreement but don’t know what to put for the marital property.

#2

*NOT AN ATTORNEY

As far as right to property goes, he has rights to half of all marital property, but working out what that is, is most times difficult. Put in the separation agreement the things that you want to have, but be fair. Keep in mind that it should be an equal split. If there is stuff that he has already taken that you’d like back, then put that in there as something that you want.

Change all the locks on the house right now, and you have every right to keep him from coming in the house anymore. Certainly if there is stuff that he wants that you don’t, arrange an appointment for hm to come get them and either put them in one controlled area (where he can’t take anything else). If you have a garage, they go there, you could also arrange to place them outside the house prior to his arrival.

If you can prove adultery and he makes more than you, he MUST pay you alimony, although you will have to put a request for alimony in the separation agreement. (For that matter, since he’s committing adultery, you can probably put a request for alimony if your pay is equal. It’s not legal that he pay, but you can make an argument that he should pay.)

Now as for the evidence to prove the alimony, the real question is did you have the right of access to that information? Was it intended to be private? If you hacked into his email account/facebook account or went through his phone texts on his phone, then you can’t use the info. If the email account/facebook account was a joint one, then you may use it. If you pay the bills for the phone you may use the number and frequency of phone calls as circumstantial evidence. If you can record a phone call, and get him to admit the adultery and when it started, you can use that. (You can even ask him if the adultery was his idea or hers.)