Legal Question in Real Estate Law in California

Re: Mortgage Divorce

There are some facts missing, but I can give you a kind of general answer.

The missing facts include (1) how is title to the house held? and (2) where do property-division and settlement issues stand in the divorce proceeding?

In general, BOTH owners of co-owned property (true of tenancies in common and joint tenancies and I think also true of community property) have co-equal and co-extensive rights to possess and occupy ALL of the co-owned property at the same time. You are sort of "involuntary roommates" as far as your rights go; of course, right now living together is not your preference even though it may be your legal right.

The foregoing general principle includes the right of both co-owners to farm out or share their rights of possession and occupancy. For example, each co-owner is entitled to have guests or even to lease out his or her right of possession. The tenant and other co-owner would then become sort of "involuntary roommates."

Two other factors may modify or limit the generality of the foregoing: first, there may be orders of the court, or even voluntary agreements, respecting property that the court has divided or will be dividing in order to complete the dissolution of marriage proceeding. Such orders would prevail over general rights. Second, whether there is a divorce situation or not, no co-owner out of possession can create a breach of the peace to establish his or her right of co-equal possession. The co-owner out of possession needs either the peaceable cooperation of the co-owner in possession, or a court order.

So, the answer here is probably that the ex-wife, having moved out, cannot legally prevent the ex-husband, who stayed, from having (for example) his new girlfriend move in.

The longer-term solution is to have and carry out a property settlement that ends the co-ownership.