I’m confused about this. Husband is living in the home? Where is the wife living?
What does constructively abadoned mean?
There are a couple of ways a spouse can abandon the other spouse. Withholding sex is one of them. This is the case here. Both husband and wife are living in the home.
Ok. I understand. The couple is not separated and can not file for absolute divorce until they live separate and apart for one year and one day.
However, that being said, the wife can file for Divorce from Bed & Board. She would need to consult an attorney.
"Divorce From Bed and Board
Divorce from bed and board is a fault-based action, usually brought by an injured spouse to get the court to order the other spouse out of the residence. If brought in conjunction with other claims (custody, child support, distribution of property), a judicially ordered separation pursuant to the prayer for divorce from bed and board establishes the separation required for those other actions. The complaint for divorce from bed and board must be verified and it must contain the required allegations of residency.
Only the injured party may apply for a divorce from bed and board. The complainant seeking a divorce from bed and board must establish at least one of the six fault grounds enumerated in the statute: abandonment, malicious turning out of doors, cruel or barbarous treatment, indignities, excessive use of alcohol or drugs rendering the condition of the other spouse intolerable, or adultery. Further, the complainant must allege that he or she did not provoke the other spouse’s misconduct. The right to jury trial in an action for divorce from bed and board is governed by the statutory provision permitting a jury to make the factual findings on issues of fault.
The method for proving any of the six grounds for divorce from bed and board is the same as the proof required for any of those same grounds under the alimony case law, reviewed in the spousal support section of this website. The complaining party must prove the ground by the greater weight of the evidence."
Since she has caught him cheating I think that this would be the best route to follow to get him to leave the marital home.
You cannot file for divorce until you have been separated for a year and a day. If he has been caught cheating you can file an action for a divorce from bed and board and ask the court to evict him from the residence.
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Helena M. Nevicosi
Attorney with Rosen Law Firm
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House and car belong to wife since 2004. Got married in 2006. A moderate percentage of husband’s earnings went to household bills for approx. 15 months ending in first qtr. 08. Husband has constructively abandoned wife for over 1 year and now has been caught cheating. How can wife get husband to leave HER house legally before divorce papers are served?
If after he is served with the divorce papers, does he have to move out?