Legal Question in Real Estate Law in California

Must sell house, co-owner incarcerated

My husband was recently sent to prison for 5 years. The marriage is over, I plan to divorce him soon, and I want to put the past behind me. I want to sell our home, furniture, and second car and move to the Midwest to be closer to my family. The grant deed and mortgage is in both my husbands name and mine in joint tenancy. The car is in both our names. He is against my selling these assets and is fighting me to not do this. Questions:

1. Knowing that the second owner is incarcerated, can a real estate agent legally sell a home in CA with only one owner�s permission?

2. Knowing that the second owner is incarcerated, will a mortgage company and escrow company work with me in processing the paperwork for the house sale?

3. If I have no other choice, must I file a partition lawsuit to force him to sign off on the required documents? Can I make him liable for attorney and court costs for the partition lawsuit?

Please help, I'm at my wits end.


Asked on 10/20/04, 6:01 pm

4 Answers from Attorneys
Michael Johnson

Re: Must sell house, co-owner incarcerated

You need to talk to a divorce attorney.

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Answered on 10/20/04, 6:08 pm
Mitchell Roth MW Roth, Professional Law Corporation

Re: Must sell house, co-owner incarcerated

1. No.

2. No.

3. The best way to proceed is to file for dissolution of the marriage right away and seek an order from the court to sell the house and the car an to allow the placing of his net share of the assets after the divorce into an account for his benefit.

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Answered on 10/20/04, 6:25 pm
Christopher M. Brainard, Esq. C. M. Brainard & Associates - (310) 266-4115

Re: Must sell house, co-owner incarcerated

In my opinion you will need to partition the house if your husband will not sign off. You may contact me.

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Answered on 10/21/04, 12:45 am
Lyle Johnson Bedi and Johnson Attorneys at Law

Re: Must sell house, co-owner incarcerated

You stqted that you are divorcing him. The family court will make orders for the sale of the house and car as a part of the dissolution of marriage process. The court must divide the property equally between husband and wife. The court will order the sale of the house and if he does not sign the deed transferring the property will order it signed by the clerk of the court. Situations such as this where one spouse refuses to sign documents to complete the sale of a house is regularly dealt with in family court. Also if there are children his share of the proceeds can be used to pay court ordered child support.

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Answered on 10/21/04, 10:32 am


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