Legal Question in Family Law in California

I've am divorced & during separation, & until the divorce was final and currently (total of 2.5 years) have been living in our jointly owned home as the custodial parent of our daughter. Our daughter lives full time with me and has. My ex is 5 months behind in child support and refuses to reimburse me (or pay for) any of our mortgage payments, which I have solely paid, plus maintenance and upkeep, family pets expenses etc. I want him to reimburse me only 50% of the mortgage I've paid and back child support out of his equity when we sell our home. I'm not asking for any additl money to cover maintenance and upkeep or family pet expenses. He refuses. I am ready to take him to court over this. He says he is not responsible for any of the mortgage since separation, and is still entitled to 50% of equity. I believe I have a strong case in my favor since I am the custodial parent and have been paying the entire mortgage all of this time. Do I?


Asked on 7/07/10, 5:59 pm

1 Answer from Attorneys

Yes and no. You certainly have a claim for back support, and you should take him back into court on that if he will not pay the arrearages with interest. On the mortgage, however, you are probably out of luck. When one spouse retains sole posession and use of the family home during the pendency of the divorce, they owe the community rent for it. There is a rebuttable presumption that the rental value is equal to the cost of ownership - mortgage, taxes, insurance, maintenance, etc. In other words, it zero's out. You have been maintaining a community asset out of your seperate income, but owe the community the same amount in rent. So unless you think you can prove the rental value is substantially less than the costs of occupancy, you have no case for reimbursement for the house expenses.

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Answered on 7/08/10, 8:55 am


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