Legal Question in Family Law in California

Re: Divorce/Spousal rights as a tenant/He's trying to kick me out with my kids-w

His house is separate property and upon the finalization of the divorce, he will have a right to the house and you will have to leave, as will the kids if you get sole or joint custody. However, while you remain married, all of you have a right to remain in the family residence unless and until a court order removes you. If he attempts to physically throw any of you out, or otherwise assaults anyone, you would have a right to file a domestic violence complaint against him and he could be jailed. You could also call 911 and they will arrest him for assault or battery. If he locks you out, you have a right to come back in. If he changes the locks, you will need a lawyer to file a petition to have him ordered to allow you back in.

If you think it would help, I would be glad to send your husband a letter on your behalf explaining his legal obligations in this matter. Feel free to e-mail me at [email protected] if you desire further assistance.

Although I presently practice in Georgia, I have been a member of the California Bar since 1979, so your question was referred to me.

Re: Divorce/Spousal rights as a tenant/He's trying to kick me out with my kids-w

Oh, one thing I overlooked. To the extent your husband has been making payments on the house from his earnings since you were married, the house is partiallly community property. It is not a very large interest, but you are entitled to 50% of that small amount and it is an additional grounds for you to be entitled to remain.

Re: Divorce/Spousal rights as a tenant/He's trying to kick me out with my kids-w

Also, you will get sole custody because they are not his kids. Sounds like he wants no part of them anyway.

Re: Divorce/Spousal rights as a tenant/He's trying to kick me out with my kids-w

It appears that it is prudent for you to retain a California attorney, immediately in order to tone down your husbands rhetoric and/or behavior. The court will not force you and the kids out at this juncture. You need someone to voice and protect your rights and you. As to the purchase of your own home, I see nothing that would stop you from taking such action and if you buy it with your own funds I see nothing your husband can do. Your own funds, however, means your own funds, not earned during marriage. Please call and I will be happy to discuss all this with you. 800-685-6950.

Reply: Divorce/Spousal rights as a tenant/He's trying to kick me out with my kid

While the house is separate property (purchased before the marriage), there will be a community property interest in it, based upon the payments made during the marriage and the increase in value during the marriage (Moore\Marsden calculation). The family law court will not evict you unless you become violent with him.

I suggest that you consult with an experienced family law lawyer. Experience is not expensive, it's priceless!

You will find some valuable information on various family law issues at my web site.

Good luck to you!

Brian Levy, Esq.

www.calattorney.net