Divorce Attorney Archives - Page 9 of 9

Can I “Kick Out” My Husband or Wife from the Home?

Unfortunately, some relationships involve violence or threatened violence, the question arises whether the victim can legally get the offending spouse “kicked out” of the home. The answer is yes, under certain circumstances. This article will discuss the process in more detail.

Authority for the Court to Remove a Spouse from the Home. The Domestic Violence Prevention Act (DVPA) and Family Code § 6340, 6321, and 6324 authorize a court to order the restrained party to move out of property and allow the protected party to use and possess the property under specific circumstances. To read these code sections, click the following links:

What Facts Need to Be Presented in Hearing. There are three facts that need to be presented at a hearing:
That the person staying has a reason to be in the home, specifically, “Facts sufficient for the court to ascertain that the party who will stay in the dwelling has a right under color of law to possession of the premises.”
That assault or threat of assault is involved, specifically, “That the party to be excluded has assaulted or threatens to assault the other party or any other person under the care, custody and control of the other party, or any minor child of the parties or of the other party.”
Harm, specifically, “That the physical or emotional harm would otherwise result to the other party, to any person under the care, custody and control of the other party, or to any minor child of the parties or of the other party.”

Does the person staying have to be the owner of the home? Not necessarily. This question was presented in a case from the Court of Appeals in California, Nicole G. v. Braithwaite, which can be found here: https://scholar.google.com/scholar_case?case=17446401920668045282&q=braithwaite&hl=en&as_sdt=4,5

In this case, the Court ordered Braithwaite to move out of the property and granted Nicole’s domestic violence restraining order against Braithwaite. In that case, the title to the home was still a civil case and a disputed issue between the parties, but the Court was able to exercise the power to order Braithwaite out and allow Nicole to take possession of the home temporarily to protect her.

Consult with the Law Office of David Knecht

If you have questions about removing a spouse from a home or any questions relating to divorce or family law, please contact the attorneys at the Law Office of David Knecht, at 707-451-4502. We have extensive experience in family law and can be a knowledgeable advocate for you.

Can I Force My Ex to Sell the House in California?

The question of whether you can force your spouse to sell the home in a divorce seems like a simple one, but the answer can sometimes involve complex analysis. It is an issue that often arises because the home is one of the largest investments many married couples make.

This article will provide some helpful background information to assist you in understanding potential issues, but we recommend seeking legal guidance on your specific situation, given the complexity of the issues and the significant value the home for many families.

California Family Code §2550. California Family Code §2550 governs the division of property in a California Divorce. The full text can be found here: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=FAM&sectionNum=2550.
How does this law apply in practice? This law provides that family court judges must divide the community estate equally, but this doesn’t speak to one specific asset, such as the house. It refers to the whole of the community property estate, which will include other assets, such as money in the bank, vehicles, etc., and also debts, such as credit card debt, student loans, etc.
What is the bottom line? When Section 2550 applies the home, the bottom line is that one party may be awarded the home, but only when there is equality in the totality of the division of assets such that the other party’s right to reimbursement or an equalization payment is honored. It is also true that a judge can order the sale of the home as per the authority provided by this law.
- What is partition and how is it used in a divorce to force the sale of the home
Where is the law governing partition? You can find California Code, Code of Civil Procedure §872.210 here: https://codes.findlaw.com/ca/code-of-civil-procedure/ccp-sect-872-210.html
Can Partition be Used in Divorce? No, unless there are special circumstances involved, a partition action is specifically excluded for divorce proceedings: “an action between spouses or putative spouses for partition of their community or quasi-community property or their quasi-marital interest in property may not be commenced or maintained under this title.”

Consult with the Law Office of David Knecht

If you have questions about how your home will be divided in a divorce or any other family law question, please contact the attorneys at the Law Office of David Knecht, at 707-451-4502. We have extensive experience in family law and can be a knowledgeable advocate for you.