Can my ex press charges against me for burglary of my own apartment? 44 Answers as of June 28, 2013

I'm being charged for burglary in my own apartment. I went in into my own apartment to get things that I forgot to get when I left the apartment. I left the apartment because of marital problems.

I'm legally married and when I went to get my things I also got some money that was there also.

Now my soon to be ex-wife is charging me with burglary from the money that I got. I already talk to the police that I got the money.. but it was never with the intent of theft or harming anyone.

When I went to the apt. no one was there and I had the key to the apt. How come the police still press charges against that. Since I live in a community property state.

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Law Office of Mark Bruce
Law Office of Mark Bruce | Mark Corwin Bruce
No. If your name is on the lease, no burglary charge.
Answer Applies to: California
Replied: 8/27/2012
Robert Valles and Associates P.C.
Robert Valles and Associates P.C. | Robert Valles Jr.
Yes.
Answer Applies to: Texas
Replied: 5/24/2013
Larry K. Dunn & Associates | Larry K. Dunn
Burglary involves entering into someone else's residence with the intent to commit a felony or theft. Although you had a key and were still married, the question is whether you still had the legal right to enter the premises after you had 'left due to marital problems'. The second question is whether you intended to take money which was rightfully yours. A person can report a crime and the police can investigate and charges can be filed. Whether a person will be convicted depends on whether the State can prove the charges beyond a reasonable doubt. You should immediately consult with an attorney.
Answer Applies to: Nevada
Replied: 8/20/2012
Law Offices of Mark L. Smith
Law Offices of Mark L. Smith | Mark L. Smith
No. It is your apartment. You have not been evicted and he does not have exclusive possession.
Answer Applies to: Rhode Island
Replied: 8/20/2012
Conway Law Pllc.
Conway Law Pllc. | B. L. Conway
Yeah, She can but that don't mean the State will win.
Answer Applies to: Virginia
Replied: 8/20/2012
    Law Office of Peter F. Goldscheider
    Law Office of Peter F. Goldscheider | Peter Goldscheider
    It is a complex legal question that has case law on both sides. You need to address it based on the facts of your case with your an experienced criminal law specialist that you retain to represent you.
    Answer Applies to: California
    Replied: 8/20/2012
    Michael Breczinski
    Michael Breczinski | Michael Breczinski
    Get an attorney to represent you. The fact that you had a right to go into the apartment may be a defense against the burglury charge.
    Answer Applies to: Michigan
    Replied: 8/20/2012
    Law Offices of John Carney
    Law Offices of John Carney | John Carney
    I do not know all the facts and circumstances of your case. If you are not on the lease, have an Order of Protection to stay away from the apartment, or moved out then maybe they can charge you but may not be able to get a conviction for burglary. First of all, you did not break and enter with the intention of committing a crime. Second, you cannot burglarize your own property if you own it or legally lease it. You should have had an attorney present before you agreed to talk to the police. You may have made admissions that could hurt you at trial or in getting a plea deal. Once you have made admissions you take the bargaining power away from your attorney. Get a lawyer to handle the case so that you do not get a criminal record and next time work things out with your wife before you enter and start removing property that may be or may not belong to you alone.
    Answer Applies to: New York
    Replied: 8/20/2012
    Law Office of Joe Dane
    Law Office of Joe Dane | Joe Dane
    The police don't "press" charges, nor does your ex. Only the DA or other prosecuting agency can do that. If charges are in fact filed against you, you're looking at a residential burglary charge that is a strike under the "three strikes" law. It also carries a significant potential custody sentence if you're convicted. This isn't something to be taken lightly.
    Answer Applies to: California
    Replied: 8/20/2012
    Austin Hirschhorn, P.C.
    Austin Hirschhorn, P.C. | Austin Hirschhorn
    Since I don't practice law in a community property state I am unable to answer your question relating to your right to community property. If you had a key to the apartment and the right to enter it to get possession of your belongings you might very well have a defense to some of the charges. If you took money that belonged to your soon to be ex-wife, that would be an entirely different issue. I suggest you hire a competent defense attorney to represent you on the charges that have been filed against you.
    Answer Applies to: Michigan
    Replied: 8/20/2012
    Law Office of Brendan M. Kelly
    Law Office of Brendan M. Kelly | Brendan M. Kelly
    They may have some proof problems, but best not to talk with the cops. If you were still married at the time then you should be ok.
    Answer Applies to: Nebraska
    Replied: 8/20/2012
    William L. Welch, III Attorney | William L. Welch, III
    Anyone may be charged. If you have documents that prove your ownership or possession of the place, then that would be a defense to burglary. However, if a court has ordered you to stay out of the place, you might be held in contempt of the court order.
    Answer Applies to: Maryland
    Replied: 8/20/2012
    Timothy J. Thill P.C.
    Timothy J. Thill P.C. | Timothy J. Thill
    Hire a good defense lawyer, and insist on a trial. If there was no court order preventing you from being in the apartment, you should win this case easily.
    Answer Applies to: Illinois
    Replied: 8/20/2012
    Law Office of Phillip Weiser
    Law Office of Phillip Weiser | Phillip L. Weiser
    No, it would not be usual to charge someone with burglary of their own dwelling.
    Answer Applies to: Kansas
    Replied: 6/26/2013
    The Law Office of Harry E. Hudson, Jr.
    The Law Office of Harry E. Hudson, Jr. | Harry E. Hudson, Jr.
    Your problem, if any , might be the soource of the money you took, the fact that you are separated and if there is a restraining order re your presence in the apartment. Burglary is the entry into a structure for the purpose of committing any theft or felony. Cannot burgle your own house. There are proof problems, based on your post, for the DA. If filed, could be a fun case. Hire an attorney. Situation is a first degree burg which is a potential sentence of 2, 4 or 6 years in state prison [not county jail under the realignment] and it is a strike. No more talking to cops.
    Answer Applies to: California
    Replied: 8/20/2012
    Law office of Robert D. Scott | Robert Scott
    Burglary requires a breaking and entering of the dwelling of another. If you live there and had a key, it seems doubtful that a burglary charge will lie.
    Answer Applies to: Maryland
    Replied: 8/20/2012
    Law Office of Gregory Crain | Gregory Crain
    Yes but they probably won't stick.
    Answer Applies to: Arkansas
    Replied: 8/20/2012
    THE LOCKHART LAW FIRM | CLAYTON LOCKHART
    The police can arrest you and charge you with just about anything these days. However, that doesn't mean that they will get a conviction. If your name is on the lease and you have a key to the place, then you have a lawful right to be there, assuming there has been no prior court order entered to prevent you from being there, Thus, there is no breaking and entering and I would bet that a smart DA would not be willing to take this to a grand jury with this set of facts. Now, you may face some kind of charge for taking the money that was not yours. But that's a different story all together.
    Answer Applies to: Mississippi
    Replied: 8/20/2012
    Connell-Savela
    Connell-Savela | Jason Savela
    You have the defense of recovery of your property.
    Answer Applies to: Colorado
    Replied: 8/20/2012
    Law Office of Edward J. Blum
    Law Office of Edward J. Blum | Edward J. Blum
    Was there a restraining order?
    Answer Applies to: California
    Replied: 6/28/2013
    Buchholdt Law Offices | Jon M. Buchholdt
    No, unless she has been given exclusive possession of it, then yes.
    Answer Applies to: Alaska
    Replied: 8/20/2012
    James M. Osak, P.C.
    James M. Osak, P.C. | James M. Osak
    You may have a lawsuit against wife for: defamation and filing a false police report on you.
    Answer Applies to: Michigan
    Replied: 8/20/2012
    Beaulier Law Office
    Beaulier Law Office | Maury Beaulier
    No. A burglary requires that there was an entry that was not authorized b the occupant. If you are the legal occupant, you cannot be charged with burglarizing your own residence.
    Answer Applies to: Minnesota
    Replied: 8/20/2012
    Nelson & Lawless
    Nelson & Lawless | Terry Nelson
    Anybody CAN do anything they like. Whether police accept and file the charges is a different question. Apparently, they have. A little free advice: exercise the 5th Amendment right to SHUT UP and do NOT talk to police or anyone about the case except with and through an attorney. So, now, when charged with any crime, the proper questions are, can any evidence obtained in a test, search or confession be used against you, can you be convicted, and what can you do? Raise all appropriate defenses with whatever witnesses, evidence and sympathies are available for legal arguments, for evidence suppression or other motions, or for trial. If you don't know how to represent yourself effectively against an experienced prosecutor intending to convict, then hire an attorney who does, who will try to get a dismissal, charge reduction, diversion, program, or other decent outcome through plea bargain, or take it to trial if appropriate.
    Answer Applies to: California
    Replied: 8/20/2012
    Law Office of James Gandy
    Law Office of James Gandy | James Gandy
    If you left the apartment, it could be argued that you no longer live there and that you committed burglarly when you re-entered with the intent to take something. This would particularly be true if what you took was arguably not yours.
    Answer Applies to: California
    Replied: 8/20/2012
    Law Office of Richard Williams
    Law Office of Richard Williams | Richard Williams
    I do not feel the charge should necessarily have been burglary as you had a right to be there. However, if the apartment was not in your name, and you were told not to come back, and you did so without regard to same, and took something that you had no right to take and was not yours, you may have committed the act of burglary.
    Answer Applies to: Alabama
    Replied: 8/20/2012
    Law Office of Ronald G. Draper | Ronald G. Draper
    Well the first question I have is whether the divorce proceedings gave your estranged wife exclusive possession of the marital home through a court order. If that occurred you might be criminally liable for theft or burglary.
    Answer Applies to: Illinois
    Replied: 8/20/2012
    Dunnings Law Firm
    Dunnings Law Firm | Steven Dunnings
    Whose name was on the lease?
    Answer Applies to: Michigan
    Replied: 6/28/2013
    Harden Law Offices
    Harden Law Offices | Leonard D. Harden
    You may be charged but it is unlikely you will lose.
    Answer Applies to: New Hampshire
    Replied: 8/20/2012
    Gregory Casale Attorney at Law
    Gregory Casale Attorney at Law | Gregory Casale
    If you live in a Community Property state, then you are not living in Massachusetts. Unless you are charged in MA, I am unable to help you since the laws differ in every state and I am in MA. Having said that, it sounds like you do not live with your ex. You may or may not have legal right to access the property. Regardless of your rights to access the real property, it is highly unlikely that you have legal access to her personal property (i.e. money). If you are charged in MA and would like to discuss this in more detail, you are welcome to call. If you are not charged in MA, you should contact an attorney in the state in which you are charged. It sounds like there are more facts and details to disclose that would have bearing on what can and should happen.
    Answer Applies to: Massachusetts
    Replied: 8/20/2012
    Musilli Brennan Associates PLLC
    Musilli Brennan Associates PLLC | John F Brennan
    If you are charged, you have answered your own question. See and attorney NOW.
    Answer Applies to: Michigan
    Replied: 8/20/2012
    Thomas C. Brandstrader Attorney At Law | Thomas C. Brandstrader
    No.
    Answer Applies to: Illinois
    Replied: 5/24/2013
    Law Office of Neal L. Weinstein
    Law Office of Neal L. Weinstein | Neal L. Weinstein
    They cannot charge you with stealing your own property. The DA will probably throw the case out, but since it is a felony, you should still get a qualified attorney to represent you.
    Answer Applies to: Maine
    Replied: 8/20/2012
    Mace J. Yampolsky, LTD
    Mace J. Yampolsky, LTD | Mace Yampolsky
    Can my ex press charges against me for burglary of my own apartment? Technically yes. Question Detail: I'm being charged for burglary in my own apartment. I went in into my own apartment to get things that I forgot to get when I left the apartment. I left the apartment because of marital problems. I'm legally married and when I went to get my things I also got some money that was there also. Now my soon to be ex-wife is charging me with burglary from the money that I got. I already talk to the police that I got the money.. but it was never with the intent of theft or harming anyone. When I went to the apt. no one was there and I had the key to the apt. How come the police still press charges against that. Since I live in a community property state. They can press charges about anything, but the question is can they convict you beyond a reasonable doubt.
    Answer Applies to: Nevada
    Replied: 8/20/2012
    Palumbo and Kosofsky
    Palumbo and Kosofsky | Michael Palumbo
    Yes.
    Answer Applies to: New York
    Replied: 5/28/2013
    Law Office of Brian K. Wanerman
    Law Office of Brian K. Wanerman | Brian K. Wanerman
    The police cannot "press" charges. Only the D.A. can do that. The D.A. cannot convict you of burglary unless he can prove beyond a reasonable doubt that, when you entered the apartment, you had the intent to commit a felony. So, if you didn't intend to take the money when you went into the apartment, but thought of it afterward, you are not guilty of burglary. But, you may be guilty of theft if the money wasn't yours. Whether or not you were married at the time is not dispositive (meaning it doesn't automatically make a difference one way or the other). But, it might be a factor in convincing a jury that you had no intent to steal. The fact that you used a key to enter the house is not dispositive. Burglary requires that you enter the building. Even if the door is wide open and you walk in, it is enough. But, to be burglary, it must be someone else's property, not your own. It's unclear from your description what the ownership rights to the building were at the time you entered. The fact that California is a community property state is irrelevant to the criminal charge. Because criminal charges have been threatened, you should consult a criminal defense attorney IMMEDIATELY! Do not disucss the case with police or anyone else without your attorney present.
    Answer Applies to: California
    Replied: 8/20/2012
    Law Office of Jeff Yeh
    Law Office of Jeff Yeh | Jeff Yeh
    You better hire an attorney before your mouth gets you in more trouble. You should never be speaking to law enforcement unless your attorney is present!
    Answer Applies to: California
    Replied: 8/20/2012
    Myles Hahn III Attorney at Law | Myles Hahn III
    "Community Property" applies to distributing assets between married persons (not to criminal law). Whose name is on the deed or lease? Is it a rental? An owner of property usually cannot burglarize their own property. It is possible in some jurisidictions, however, that an owner could commit a criminal offense against a rightful tenant. If you are charged, retain a qualified criminal attorney in that area.
    Answer Applies to: Illinois
    Replied: 8/20/2012
    Steven Alpers | Steven Alpers
    This is a difficult area. Technically, you cannot be charged for burglary, a strike, unless you entered the house with the intent to steal. The question is then if you intended to steal money before you went into the house. There is a second question which is whether a divorce is pending, or whether you are legally separated because you have the intent to live separate. If so earnings after separation are separate property and they could be subject to theft. You should never give a statement to the police. They often read things into your statement that you did not intend then you have to try to explain them at trial. If they have proof they don't need a statement. If they don't have proof don't help them. The answer is they can charge you with burglary, but it would be hard to prove. They can probably prove a theft.
    Answer Applies to: California
    Replied: 8/20/2012
    Clos, Russell & Wirth, P.C. | Gary A. Russell
    You can be charged, that does not mean you will be convicted. If you are on the lease and had a key, they will have a hard time proving unlawful entry. Of course, if you moved out a year ago and decided to return, that could be a problem. Also, there is the issue of taking money that may or may not be marital property.
    Answer Applies to: Michigan
    Replied: 8/20/2012
    Pietryga Law Office | Russ Pietryga
    First, your x-wife files a police report. The officer fills out a police report and submits it to the prosecuting attorney. The prosecuting attorney decides if there is enough evidence to charge you with a crime. *Degree-* Depending on the facts, burglary can be charged as a 2nd or 3rddegree felony. *Elements-*A defendant commits a 2nd degree felony burglary when they *enter or remain unlawfully[1] * in a *dwelling[2] * or any portion of the dwelling with the intent to commit: a *felony*; *theft*; an * assault* on any person; *lewdness*; *sexual batter*, *lewdness involving a child*; or *voyeurism*. A defendant commits a 3rd degree felony burglary when they enter or remain unlawfully in a *building[3] * or any portion of a building with intent to commit: a* felony*; *theft*; an *assault* on any person; *lewdness*; *sexual battery*; *lewdness involving a child; *or * voyeurism*. *Fine-*3rd degree felony: A fine not to exceed $5,000[4] , plus a 90% surcharge.[5] 2nd degree felony: A fine not to exceed $10,000[6] , plus a 90% surcharge.[7] *Restitution-*The court may order a defendant convicted of this crime to pay restitution.[8] *Imprisonment-*3rd degree felony: A term of imprisonment not to exceed 5 years.[9] 2nd degree felony: A term of imprisonment not less than 1 year nor more than 15 years.[10] *DNA Specimen Analysis-*A defendant convicted of a 2nd or 3rd degree felony burglary must provide a DNA specimen.[11] * * *Firearms-*A defendant convicted of a 2nd or 3rd degree felony burglary may not posses, use or have control of a firearm or ammunition for life.[12]
    Answer Applies to: Utah
    Replied: 8/20/2012
    Natty Shafer Law
    Natty Shafer Law | Nathaniel Shafer
    It sounds like you have a pretty good case. If you were legally entitled to enter the apartment, and the money was yours, you have a good defense. That does not mean, however, that you won't be charged. Sometimes prosecutors and police officers are misguided and move forward with bad charges. Hire a talented attorney and you'll likely prevail.
    Answer Applies to: Utah
    Replied: 8/20/2012
    Law Offices of Lee and Baghoomian, P.C.
    Law Offices of Lee and Baghoomian, P.C. | Joseph Lee
    Was your name on the lease of the apartment? If so, then there is no reason for you to be charged with burglary. If not, then it is questionable.
    Answer Applies to: California
    Replied: 8/20/2012
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