Legal Question in Real Estate Law in California

Re: Quit Claim Law

I'm somewhat reluctant to second-guess an attorney who already represents you and has (I assume) full access to all the facts including having read, and quizzed you about the accuracy of, all the allegations in this lawsuit. On the other hand, the attorney's advice seems dead wrong based on the version of the facts you've set forth.

First, I note that you seem to have a completed dissolution of your 2005 marriage, and I'm guessing the divorce was final, including disposing of all property issues, before the lawsuit was served. If not, some further explanation would be in order. If so, I would think the dissolution decree(s) would dispose of all property issues, award you this-and-that, etc., including the house.

Second, since the house was quitclaimed to you before you married, it was your separate property going into the marriage and should have been treated as your separate property at the time of the dissolution. To the extent either of you had earnings that contributed to martgage payments during the marriage, the marital community would acquire a sliver of an interest, called in family law a 'pro tanto' interest based on the use of community funds to pay the loan. This would be very small and your settlement would presumably pay it off.

Is the lawsuit an attack on the divorce proceeding, i.e. alleging that the decree(s) therein should be set aside or modified because of (for example) fraud? Or does it raise the mental anguish and title issues from the ground up, without attacking the divorce proceedings?

After two years, what is the procedural status of the case? I would think it would be ready for trial by now.

It also occurs to me that we real estate attorneys are accustomed to defending titles on the ironclad premise that there is valuable equity in the client's property. Recently, this premise is very suspect. When a property is "under water," i.e. when the combination of aggressive borrowing, bad loan terms, and now a couple of years of declining home prices has made many homes a liability instead of an asset worth fighting over. Could this be part of the attorney's reasoning?

Maybe the best advice I can give you is to make your attorney give you 15 or so undivided-attention minutes of his or her time to make you comfortable with what looks like a settlement proposal (is it?).

As a final note, I don't like the idea of putting this guy back on title at all for the two following reasons. (1) As a co-owner, he would have a right of possession, just like you. He would become your roommate of sorts as a matter of law, "de jure," whether he became a "de facto" roommate or not. And (2), as unhappy co-owners, you would both be facing the probable need for future expensive litigation to break up the co-ownership by partition proceedings. However, the suit is respolved, I do not like co-ownership as being part of a settlement or judgment.