Divorce and Property

Mani con chiave sfondo azzurroMum is the word- sometimes, unfortunately. That was the case for one woman, who ran into multiple questions regarding the condo she and her hopefully soon to be ex-husband share. The catch, however, is that the loan for the condo is carried under his mother’s name.

In detail, she and her husband have lived together in this condo since 1999. Her name is not on the title or the loan of the condo, which is carried, again, by her husband’s mother. The couple make the house payments and claim them on their taxes together. They both also pay the property taxes. She wants to know how she can ensure that she gets “her half” in the property division of the condo property after they divorce.

Let’s be blunt. Based on what she’s told us, there’s probably no way to “make sure” she gets “her half” of the condo. It sounds like the husband’s mother bought the home for him, and left her daughter-in-law intentionally off of the deal. If that’s true, “her half” doesn’t exist so there will be no property division. What she can do: talk to a lawyer and give him or her all the facts she knows. She should bring a copy of the deed with her. If she doesn’t have a copy of the deed, she can get one at the recorder’s office. I expect the only way to create a half interest in the condo in her favor would be for the husband to deed half of it to her. She might ask him to do so and see what happens- it couldn’t hurt if that’s the only option.

For more information on property in divorce, please visit our website: http://stanprowse.com/property-division-in-divorce

 

Landlord Tenant Law – Tenants Rights

Tenancy agreementReconciliation. Making amends. Getting back together. For some divorced couples, it isn’t just a laughable notion or a vastly unlikely fantasy. For some, it can actually happen. This seemed to be the future for one potential client, a woman who reports she and her ex-husband have agreed that their parting of ways was a mistake and that they’re currently trying to get back together. However, an outside force is blocking the couple and their son from coming together under the same roof. What is this outside force? The landlord of the ex-husband’s apartment.

The woman states that the landlord “will not allow me in or on the lease because they don’t want a divorced couple living together. They think it will cause domestic violence which was never the case or ever happened.” She has been sneaking into the apartment at night to see her family, otherwise, the landlord will evict her ex-husband and son. Her question is this: can the landlord really refuse to allow her to move back in just because she and her husband are divorced, and are trying to reconcile?

If the lease agreement is in her ex-husband’s name and she is not listed as an approved occupant, the landlord could terminate the lease if her ex-husband lets her stay there. However, simply not wanting a divorced couple to live there is by itself probably a violation (at least arguably) of some California fair housing laws. She should find a lawyer that handles landlord-tenant law, specializing in representing tenants rights, and see how best to tackle this situation. We all know it often takes a court case to split up, but who knew it could take another to get back together?

For more on landlord and tenant related real estate law, please visit our website:  http://stanprowse.com/landlord-tenant-law

 

 

Property and Divorce

concept of section of property after divorce.

A woman reports that when she and her ex-husband divorced, they agreed to let their family home foreclose. Since then, he has filed for bankruptcy to delay the foreclosure, he began once again to pay the mortgage, and has organized for a friend to become a renter. This woman asks us if she is entitled to half of the rent he receives from the tenant. She states that she was indifferent when she knew that the money was going towards a community debt, but now that she knows it is not she believes she deserves a share of the profit.

Assuming that the property is still in both names, this woman is entitled to half the rent her ex is receiving. We told her it sounds as though she should take him to small claims court, which is a local court where claims for small sums of money can be tried and resolved quickly and inexpensively without legal attorneys. It also sounds as if the home in this situation is not an adjudicated asset (or their judgement doesn’t say who gets it). In that case, if it ever becomes worth anything, she might want to go back to divorce court and ask for it to be sold and the proceeds divided. If the house is in fact an adjudicated asset, there is a possibility that the small claims court has no jurisdiction to deal with who gets the rent, and that a small claims court judge might refuse to hear her case and send the pair back to divorce court. In either case, she should consult with an attorney to develop a plan of action for receiving the profit she is entitled to.

For more information on real estate and property in divorce, please visit our website: http://stanprowse.com/property-division-in-divorce

 

Infidelity and Divorce

AdobeStock_89927467.jpegAs much as some of us wish it would, the law has no sympathetic ear. It is black and white, numbers and figures. There is no special stipulations for unfortunate individuals who simply just were played a bad hand of cards. In a nutshell, the Court doesn’t care if someone “hurt your feelings”.

But that doesn’t stop people from approaching us with their story of how their spouse did them dirty and left them out to dry. And of course, that’s understandable. Everyone wants to be heard. Perhaps that’s what one man really wanted when he sought advice about his “immigrant wife” of two years cheating on him. He informed us that his wife recently filed for her 10 year green card but it has not yet been granted. Based off of his recent discovery of her affair, he no longer believes the marriage was in “good faith”. In fact, he wishes to pass this information along to immigration officials. His question: what would be the best protocol to ensuring a favorable settlement in the divorce process with the current information regarding her falsification of a “good faith” marriage?

This is where we had to break it to him: the divorce court doesn’t care if you’ve been cheated on. They also won’t take into consideration whether his wife is legal or not. All the court cares about is dividing the couple’s community property and whether either spouse gets spousal support (which is highly unlikely). The feds may care if the marriage was phony, but using the threat of reporting her to get her to give up anything she’s entitled to would be extortion. A no-no, although people do it anyway. This man needs to see the matter of divorcing this woman and his vendetta for seeing about her deportation as two separate subjects, or else he will most likely be unsuccessful in both.

For more information on questions in divorce, including those regarding cheating, please visit our website: http://stanprowse.com/divorce-attorney-questions

Domestic Violence and Spousal Support

AdobeStock_73154055.jpegA woman approached us with questions regarding issues with spousal support in her marriage that involved domestic violence. She reports that throughout the couples’ four year marriage she was unemployed. There were several instances of domestic violence and several police reports made, but no arrest of the husband ever occurred. Still, she was granted a DVTRO, or a domestic violence temporary restraining order, by their family court judge. However, she has been unable to locate her ex-husband to have him served with the restraining order. He is now suing her for spousal support. Her question: since she was a victim of domestic violence by him, can he still be granted spousal support and attorney fees? She continues to struggle to find a job and has been living on no income.

We advised her not to worry- because she is unemployed and has no income, no Court is going to make her pay spousal support, so that needn’t concern her until she gets a job. Even then, if he’s employed, chances are he would be making more money than his ex-wife, and he would be paying her spousal support. Nonetheless, she probably would not get more than two years of support from the date the couple separated – they had a short marriage. Unless she knows he’s working and getting a paycheck he can garnish, her first order of business should be to find work for herself.

For more information on domestic violence and spousal support, please visit our website: http://stanprowse.com/spousal-support-california

Change of Venue: A How To

Judge Reading Documents At Desk In CourtroomIn divorce, one of the most common questions we hear is howHow do I file? How do I get child custody? How do I come out of the other side of this mess? With so many hows, sometimes our most important job is to find the best of many possible hows for each individual client, because decades in this line of work has shown us that no client is identical to another. In one such case, a woman wanted to know how to file for a change of venue in her divorce. Her estranged husband, whom she’s been separated from for over four years, filled for divorce in Ventura County. However, she and the couple’s seven year old daughter have continued to reside in Los Angeles County, where the child was born. This woman explains that Ventura is just too far for her to travel. She goes on to note that her daughter’s school, doctor, activities, friends and family, and anyone else that she may need to testify on her behalf are all in Los Angeles. Her question: what forms must she fill out to ensure that her divorce case be moved to Los Angeles.

We informed this woman of her ability to request an order to change venue based on the circumstances she described, and that with all things considered the order would likely be granted. We advised her to use the standard RFO or Request for Order form to get this done (FL-300). She then must prepare and file the form when she goes to the hearing, and be aware that there will be a filling fee. We suggested she conduct some research on CA Code of Civil Procedure 397, where she will find the authority for her request for venue change. She will lastly need to file a proof of service proving that she served her husband. A date will be set to hear her RFO.

For more information on planning for divorce, please visit our website: http://stanprowse.com/planning-for-divorce-2

 

 

 

Abandoned Marriage: Grounds for Divorce?

Bride lets a Balloon with Text burst with a needle

It always seems that when we actually really need something, we can’t seem to find it. When you’re late for a meeting with the boss, you can’t locate your keys. When the pizza man is at the door you realize you haven’t seen your wallet all day. Well, a man recently approached us with a case where he couldn’t locate something (or someone) he really needed. However, for this man, it wasn’t car keys or a crisp $20 for the pizza boy. He couldn’t find his wife.

He relayed to us that they had married in Las Vegas so he could obtain a green card. But, she disappeared before they could finish going through that process. He has no way to contact or locate her. Here’s his main concern: he now wants to marry “for real”. Of course, he first needs to divorce this M.I.A. wife. His question was whether or not he could file for divorce with claim of abandoned marriage, and how quickly he could get through that process.

First things first: he cannot file for divorce based on spousal  abandonment. If he satisfies the residency requirements, he can file for divorce in San Diego County and serve her by publication. Service by publication entails that you publish the Summons or other documentation in a newspaper in the area where your spouse is likely to be. This would require a payment to the newspapers to publish the document. There is also service by posting, where a court clerk posts the Summons or documents in a visible place designated for court notices at the courthouse. To serve by posting, you must qualify for a court fee waiver. This man would then need to file a request for default and then file a default judgement. Still, this is a consuming process, and he should hire a divorce attorney to walk him through it. The soonest he can get a divorce is 6 months after he files.

For more information on divorce and what one should do before filing, please visit our website: http://stanprowse.com/divorce-five-steps-before-filing

Lease Agreements: What Happens in Divorce?

Mani con chiave sfondo azzurroA man recently approached us with a complicated situation. Though he and his wife mutually agreed that divorce was in their family’s best interest, her reaction was negative to say the least when he served her with divorce papers.  She promptly threatened to give 30 day notice to dissolve the lease agreement on the condo the couple rent, which, problematically for the husband, is leased only in her name. After those 30 days, she plans to move to another town, into an apartment where she has already cosigned a lease with her new boyfriend. To add fuel to the fire, the couple share a 12 year old daughter who wishes to remain with the father because she is afraid of her mother’s boyfriend. Of course, the mother wants custody of the daughter. This man states he can’t afford the rent on his own, and he believes his wife is trying to put him on the streets. His questions: Can she just throw him out? Can she just end the lease?

The leasehold interest, although hers as far as the landlord is concerned, is community property, so it therefore belongs to both the wife and the husband. Legally, her ability to evict him as a subtenant is exceedingly dismal. If she proposes to stop paying the rent and move out herself, that might be prohibited under the automatic restraining orders printed on the second page of his petition, because she’d be disposing of community property without his consent. However, we of course had to give him the honest truth about this situation. This type of discrepancy is highly technical and academic; dealing with it in a divorce case would be time consuming, and the result problematic. The reality is that if no one is paying the rent, he’ll have the landlord evicting him, no matter the status of his wife. The best thing for this man to do for himself and his daughter is to find a place to live that he can afford. That way, he isn’t dependent on the actions of his soon to be ex wife.

For more information on community property, as well as tenant protection, please visit their following respective pages on our website: http://stanprowse.com/community-property and http://stanprowse.com/real-estate-law/landlord-tenant-law

 

Alimony: What’s taken into (or out of your) account?

moneyGoing through a divorce is never fun. There’s no sense in denying that. The best thing you can do is work hard to succeed in other aspects of your life. For example, a potential client recently came forward with some good news despite his in-process divorce. He’s been promoted, and starts a new job with a signifciantly higher salary next week. His concern regards alimony. When he filed for divorce earlier this year, he was making considerably less money. The couple has yet to go before the judge and finalize their divorce; the date is set for later in the month. So, will alimony be calculated from his reported earnings when he initially filled for divorce, or will it be based on the higher salary he is about to receive?

We started by informing this man that he is under a fiduciary responsibility to inform his soon to be ex-spouse regarding his change in income. The question of whether his new income will be the exclusive number considered in setting spousal support is another matter. The average of the last twelve months earnings is statutorily presumed to be a proper basis. Some judges stubbornly stick to that even under situations such as the one this man is in.  Since he will have already started his new job, and if it is likely to be a long term position, I expect his judge will probably use his prospective income when it comes to his ability to pay, one of the factors the judge must consider. However, the primary factor is the standard of living during the marriage, which was undoubtedly based on this man’s previous income. There is no computer formula used for spousal support awarded in a final judgment, so there is in fact no “calculation” to be made by the judge. It’s a matter of weighing a number of factors set forth in Section 4320 of the Family Code.

For more information on calculating alimony and spousal support, please visit our website: http://stanprowse.com/spousal-support-california

 

 

Spousal Support: A Case of Waived Rights

Couple problem

Is a piece of paper sufficient protection? Are words signed in ink adequate defense against an ex-spouse going against his or her word?

Let’s take a look. A woman recently approached us with the following question: can a spousal support ruling be reversed despite the fact that both parties signed the waiver? In her specific case, she and her ex-husband signed that they “voluntarily, knowingly and intelligently” waived their rights to spousal support. It was specifically stated that neither party could change his or her mind, even if circumstances changed.  But then, the issue of child support arose.  This woman’s ex-husband threatened to return to court for spousal support if she seeks out child support for their children. Is this threat a water gun spray painted black, or can he actually reverse their agreement?

When this couple mutually agreed to forever waive their rights to spousal support as part of their divorce agreement,  the court’s ability to order spousal support was terminated. This woman need not fear; the court would not be able to grant her ex-husband’s request if he files a Request for Order.

For more information on spousal support and possible modifications to spousal support, please visit our website: http://stanprowse.com/modifying-child-support