Canton, NY Divorce Law Firms & Lawyers

No, your wife can't do that. As soon as the divorce action was filed, both you and your wife were subject to "automatic orders" pursuant to the NY Domestic Relations Law (DRL) 236(B)(2)/ 22 NYCCR 202.16(a), that prohibit you both from taking marital assets or incurring unusual debts with joint funds. You need to request a court conference immediately, so that a judge can explain to your wife that she cannot do this and if necessary, seek a restraining order against her. Ultimately if she did take anything considered a joint asset, you will be compensated either directly or by an offset when the assets are divided pursuant to a settlement agreement or court order. 

Assuming you both own the house equally, you cannot evict him without a court order. You can go to Family Court and try to get a restraining order preventing him from being in your house if you have proof that he stole from you and are afraid he will continue to steal. You can also go to Supreme Court and start a partition action against him which essentially asks the court to divide the house in half. Although that rarely happens, in this case it actually could (although your mother-in-law's presence complicates things). The other possible result of a partition action is a sale of the house and the division of the proceeds. It would be best for you to buy him out, if you can. But a partition action really makes no sense if you're starting a divorce action, because the house is marital property subject to dispositon in the divorce action. You may eventually get the whole house in a divorce action, depending on all the other factors involved, but divorce and division of marital property don't happen quickly unless both parties agree to the terms of the divorce quickly.   

Generally speaking, although there are provisions in the CPLR for pre-action disclosure, your situation would not be ripe for any such relief.  You are seeking to obtain evidence which would potentially give rise to a cause of action for divorce.  Especially in light of the recent developments in New York which give rise to "no fault" divorce on Irretrievable Breakdown of marriage for six months, your discovery is not necessary to commence a divorce.  Your issue is more of a "trust" issue with your spouse and is more likely to be resolved in a marriage therapist arena prior to resorting to a divorce.  - Alfred Polizzotto, III, Esq.