Can I be kicked out of my own house because of a PFA?
It depends.
First, who is your lawyer? Let’s be adults. In the real world, it’s who you know and how they can present your case in the most persuasive way possible both in and out of court that matters.
Second, what is your domestic situation? Do you rent or own? If you rent, who is on the lease? If you own, who is on the deed?
Background
Before we get into it, we need to go over some background. A PFA matter is not a criminal matter, but if you disobey it, you can be held in contempt that may involve jail and fines. As it is not a criminal matter, there is a plaintiff and a defendant. The accused abuser is the defendant. The complaining person is the plaintiff.
Who wins and loses?
Initially, sadly, the complaining witness will win. Why? Because as we point out in these posts PFA initially is an ex parte hearing where the court makes a temporary order without even hearing your side:
The complaining witness can totally make the whole thing up. Sometimes they do. That’s why you have to act fast and say no to continuances. Push the issue.
- If the plaintiff (complaining witness) owns the house or is the only person on the lease, then the court can award the residence solely and completely to the plaintiff (complaining witness). In that case, yes, you who are living there even if you are paying all of the bills and even if you are paying the rent or mortgage, can be evicted form the house you live in.
- The court may order you (the defendant) to leave effectively evicting you notwithstanding your clear property rights If both the plaintiff and defendant are on the lease or on the deed.
- If the defendant (you) owns the house exclusively (as measured by your name alone on the deed) or if you are the only person on the lease and no one else, then the law says:
If the defendant has a duty to support the plaintiff or minor children living in the residence or household and the defendant is the sole owner or lessee, granting possession to the plaintiff of the residence or household to the exclusion of the defendant by evicting the defendant or restoring possession to the plaintiff or, with the consent of the plaintiff, ordering the defendant to provide suitable alternate housing.
What this means in plain English is that even if you are the only name on the deed to your house or the only name on the lease, you can still be evicted from your own home. In the alternative, and if the plaintiff consents, you can stay in your house but you are required to pay for suitable alternate housing for the plaintiff.
Incorrect Ideas on PFA Law
Here are some important misconceptions about PFA law.
No right to counsel
- You (as the defendant) do not have the right to counsel and counsel will never be appointed for you in a PFA hearing…. unless you are in jail and violate the PFA. That means no Public Defender. You either have to show up and defend yourself (very bad idea) or hire an attorney. Good lawyers aren’t cheap and cheap lawyers are no good. But, the complaining witness (the defendant) will always have a free attorney. There are many organizations that will gladly represent the complaining witness for free. If you show up to court without a lawyer, many judges will force you to defend yourself. You will have to defend yourself against a cost-free attorney who may have decades of experience in the courtroom. The odds are not stacked in your favor. Don’t be the guy who loses.
Extortion is common in PFA matters
- These organizations that represent the plaintiff (complaining witness for free) are often lay advocates. As such, the ethical rules that apply to attorneys do not apply to them. They can and do lie. In the past, we have caught them literally criminally extorting a defendant (accused abuser) to drop the PFA or criminal charges in exchange for money, the house, a more favorable custody arrangement, more alimony and specific items of the household. Sometimes, shockingly, this same illegal behavior is engaged in by the free attorneys that the plaintiff gets. This is completely and totally illegal. It is textbook criminal extortion. Yet, it is completely commonplace. Most attorneys who defend defendants in PFAs are wimps. They gladly enter into these illegal extortions. We fight back. We turn the tables. No more defense. It’s time for offense. We file police reports and put those folks under pressure instead of you.
You don’t get a free house if you are a plaintiff of a PFA
- If you own the house or are on the lease free and clear of the plaintiff a lot of times these free plaintiff lawyers or free non-lawyer advocates will try to argue that by law you must be evicted from your own residence or pay for EQUIVALENT housing for the plaintiff. This too is absolutely wrong for three reasons.
- First, the law reads “[The court may] order[] the defendant to provide suitable alternate housing.” The key word there is “may” not “shall”. There is a big difference between the two.
- Second, in the same phrasing of the law the keyword is “suitable” and is not the word “equivalent.” The difference can be huge. If the house in question is a multi-million dollar home, if the law read “equivalent”, then the defendant would have to put the plaintiff up in another multi-million dollar home or lose physical possession of his/her own multi-million dollar home. Such a result is ridiculous. It defies logic. Instead, the word is “suitable.” Suitable means just that. It works. It is suitable for habitation. Nothing more. There are remedies outside of a temporary or final PFA that is the proper legal vehicle to determine whether or not alimony or child support should be paid and if so how much. A PFA is not a substitute for that process.
- Third, the qualifying phrase in the beginning of the law drives the rest of the reading of that part of the law. It reads: “If the defendant has a duty to support the plaintiff…” In America, competent adults are responsible for themselves. A defendant who is capable of working is responsible for their own living. If the adult defendant is not capable of working, there is SSI/SSD. There is no common-law marriage in PA. So absent a marriage, the court cannot award alimony. Plus, even if there is a marriage in place, there is alimony in the normal course of divorce proceedings that is available if the person qualifies. A PFA is not a proper substitute for the normal divorce proceedings.
- You have to be very careful here in this situation. Technically, if everything goes wrong, you may be forced to pay for the housing of your ex for three years or more. Don’t wait. Just stop and think about that. You need to hire us today.
That’s not fair!
We agree. Where most attorneys do not take an aggressive posture towards defending PFA cases, we do. We don’t mess around. If they want to evict you from your house, it’s on. If you own the house and want to remove you from your own house, it’s on. Not under our watch. If the complaining witness thinks that a PFA is a way for them to live rent free for three years, it’s on.
Additional suggested reading:
Section 6108 – Title 23 – DOMESTIC RELATIONS
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