What to do next?

[divorcesucks]

What is the name of your state (only U.S. law)? California

I am very confused on how to proceed with my divorce. my husband and i have 2 young children. he has been emotionally abusing me for 8 years, but believe it or not is actually a good father. participates in there lives and does not harrass me in front of them. he is paranoid and i have reached my breaking point. i have filed and served the divorce papers. he is having a hard time accepting this and has been waking me up in the middle of the night to accuse me of everything from A-Z. I want him to leave our home (which is in his name, but I have been paying the mortgage on for 2 years). The only way I know to get him to leave is to file a restraining order, but this involves the children and I am trying to keep them out of this. Divorce is hard enough as it is without ripping their father away from them. I don't think he will leave the home without force, but I also don't want to drag him through the mud.
Should I obtain a lawyer to help me work this out and clarify why he needs to go, yet still be a part of his kids lives. He has never abused them in any way, but emotionally has been horrible to me. This process is hard and confusing. Also is this house considered community property. He bought the home 2 days before we were married and we were together 5 years before that. Do I have the legal right to ask him to leave? Any Advice? Thank You : )

 

[mistoffolees]

What is the name of your state (only U.S. law)? California

I am very confused on how to proceed with my divorce. my husband and i have 2 young children. he has been emotionally abusing me for 8 years, but believe it or not is actually a good father. participates in there lives and does not harrass me in front of them. he is paranoid and i have reached my breaking point. i have filed and served the divorce papers. he is having a hard time accepting this and has been waking me up in the middle of the night to accuse me of everything from A-Z. I want him to leave our home (which is in his name, but I have been paying the mortgage on for 2 years). The only way I know to get him to leave is to file a restraining order, but this involves the children and I am trying to keep them out of this. Divorce is hard enough as it is without ripping their father away from them. I don't think he will leave the home without force, but I also don't want to drag him through the mud.
Should I obtain a lawyer to help me work this out and clarify why he needs to go, yet still be a part of his kids lives. He has never abused them in any way, but emotionally has been horrible to me. This process is hard and confusing. Also is this house considered community property. He bought the home 2 days before we were married and we were together 5 years before that. Do I have the legal right to ask him to leave? Any Advice? Thank You : )

You seem to be confused about what a restraining order is. If you or the children are in danger, you file a restraining order. Filing a restraining order just because you don't want him in the house would be a felony.

If you want him out, you can ask the court for temporary possession of the house - in which case he would have to leave. You don't need to drag him through the mud to do that. You would simply have to explain why that is the fair thing. If there's a good reason for you to get primary physical custody of the children, that alone may be sufficient. Until you get a court order, it's as much his house as it is yours. You could nicely ask him to leave, but he doesn't have to without a court order.

As for who gets the proceeds of the home, that will depend partially on who is on the deed. If both of your names are on the deed, you will split the equity equally. If only his name is on the deed, it becomes a little more complicated, but it's likely that you will split the marital portion of the equity - which will amount to almost the same thing since he bought it just before you were married.

Keep in mind that there may not be much equity with the way home prices have dropped in CA.

 

[divorcesucks]

Thank you for the information. Clearly this is a stressful situation and something I am not familiar with. My intention is not to commit a felony, just create some peace in a home where there hasn't been any. We are 100% not in danger, so a restraining order would probabaly not be the right route to take. The court ordering temp custody of the house is more appropriate for this situation. This is a situation where two people should not be together because they hurt each other, but the children are first and foremost for both of us. I suppose talking to a divorce lawyer would help us clarify and mediate what is best.