Legal Question in Real Estate Law in California

Re: divorce/real estate

Have your divorce attorney file for an emergency ex parte hearing to enjoin sale of the home until the marital and/or community property issues have been fully resolved.

Re: divorce/real estate

I assume, and hope, that you have retained a good attorney for your divorce. Assuming you have, run this by him/her ASAP, in order to protect your interests.

If not, you need to be represented at once.

It is imperative to stop the sale of the house promptly.

E-mail, or call, if you need more.

Good luck!

Re: divorce/real estate

Your attorney could appear ex parte before a judge of the Orange County Superior Court to ask for a temporary restraining order to halt the sale of the house. The granting of a TRO would be followed in about two weeks by a hearing on whether the TRO should be made into a preliminary injunction. At that point, you would probably be asked to put up a bond, a requirement that the court can waive upon a showing if indigence.

Another way to protect your interest in the house is to have your attorney file a separate suit alleging fraud and violation of the spousal duty of honesty and candor, then record a "lis pendens" a/k/a notice of pendency of litigation, which has the legal effect of prioritizing your claim to the house ahead of any purchaser's claim, a very effective protection.

However, your chances of prevailing in the long run seem to rest upon a very careful evaluation of the facts, including their believeability, the availability of witnesses and documentary evidence to back them up, and the possible strength and weaknesses of your husband's defenses.

A lawyer evaluating your case should also be familiar with, apply and take into consideration, all the dollar figures applicable, such as the currentmarket value of the home, the amount of debt, the sources of the down payment, the relative size of the community and separate property interests, and maybe other factors.

This will not be an easy case. Fraud claims can and sometimes do prevail against record title, but it is an uphill battle and often you encounter the "clear and convincing" standard of proof vs. the usual preponderance of the evidence standard applicable to most civil cases.

I would say you need an attorney with at least ten years' experience and some of that should be in litigation of real property title matters.

Re: divorce/real estate

The property was purchased during the marriage, and is therefore presumed to be community property. Further he probably used money earned during the marriage to purchase the house, and make the payments. At a minimum there should be some community property interest in the house. You can either get a court order to stop the sale or to have the money from the sale placed in a trust account pending further order of the court. His sale of the property without either your consent or a court order is a violation of the automatic temporary restraining order that applies to him when he filed the petition for dissolution and you when you were served.

Re: divorce/real estate

If your attorney is asserting a community property interest in the residence, then this community property interest should have been made clear in the response papers. Many attorneys plead this vaguely and it can have dire consequences down the line. If your attorney did assert a community property interest in the residence, a lis pendens should have been recorded, and then filed in the action.

If your attorney has not done this, or you do not have an attorney, you need to get one immediately in your area who knows what he/ she is doing.

Very truly yours,