Posts Tagged ‘Sacramento’
What to do when the house is in the other spouse’s name. Use of a “Notice of Pendency of Action” in California Divorce Cases.
by Chris Dietrich
For many divorcing couples, what will happen with a house after the divorce is a critical concern for both spouses. These concerns only increase when title to the house is only in one of the spouse’s name. For the spouse who is not on the deed, it is important to take steps to protect their interest in the house to prevent the other spouse from borrowing against, selling, or losing the house to foreclosure prior to a final Judgment.
One of the best tools a spouse can use to protect their interests in a house that titled in the other spouses’ name is to file and record a “Notice of Pendency of Action” against the house. This document becomes a public record, which when properly drafted and recorded gives notice to the other spouse, and anyone else that there are pending court proceedings regarding this house. With this notice, the other spouse will not be able to effectively sell the house to a third party. This notice will come up on any title search and will be flagged to the attention of any buyer of a house or any bank who might lend funds to purchase the house. It also provides a mechanism for you to be notified about important occurrences with the house, such as default and foreclosure, allowing you to step in and take other actions to protect your interests. Also, this Notice of Pendency of Action may work to prevent a party from borrowing against the equity in their house during the divorce, either through a home equity line of credit or a Family Law Attorney’s Real Property Lien.
The Notice of Pendency of Action is a tool which can be used in conjunction with the Standard Family Law Restraining Orders to prevent one spouse from taking actions to unilaterally undermine the other spouse’s interest in a property item away during a pending family law proceeding. Use of the notice of pendency of action gives additional “teeth” to the Standard Family Law Restraining Orders and allows for additional remedies which you may not have been able to use otherwise.
The Notice of Pendency of Action is a valuable tool and should be used carefully and properly. This document puts a “cloud” on title and once the family law proceeding is finished needs to be removed to avoid future hardship for both parties. Further, there are circumstances when the court can remove the Notice of Pendency of Action from the house.
A final related note, it is important to remember that in California community property law that whose name is on a house is not the final determinative issue in deciding who gets the asset and whether the other spouse has to be “bought out” from the house. Rather, there are multiple ways in which the spouse not on title can claim an interest, including seeking a determination that the asset is community property in spite of its title, seeking a percentage of the house under a Moore/Marsden theory, or requesting reimbursement for expenses paid towards another spouse’s separate property home. Therefore, it is important to consult with an experienced family law attorney to discuss the use of this tool and what interest, if any, you may have in a house in the other spouse’s name.
by Chris Dietrich
One of the most pressing concerns for any parent going through a divorce, legal separation, or break up is what will happen with the children. Even in the most amicable of breakups numerous new challenges arise, including changes in housing, finances, scheduling, work, and many other areas of life, all of which must be considered and addressed to create a parenting plan in the children’s best interest. In more contentious breakups there may be additional serious issues present such as neglect, abuse, addiction, as well as other serious concerns.
California Family Code §3170 requires that in any contested custody case that the parties first participate in mediation to attempt to resolve custody disputes with an agreement before the issues are tried in front of a judge. This requirement is imposed under the belief that an agreement which the parties come up with themselves for their children is usually better and will be more successful in the long term than one imposed by the courts. To assist the parties in working through these various difficult issues the mediation is conducted with the assistance of highly trained therapists who are familiar with the common issues that need to be addressed in custody disputes.
In some counties, commonly referred to as “recommending” counties the mediator has an additional role when the parties are unable to reach an agreement. In these counties the mediator will present a written recommendation to the court regarding a parenting plan for the minor children. In these counties the mediation process has increased significance as the mediator’s recommendations are often adopted in whole or in large part by the court. Many local counties, including Sacramento, Placer, Yolo, San Joaquin, and Stanislaus counties are recommending counties. In other counties, the mediation process is entirely confidential and the mediator does not make recommendations to the judge if the parties are unable to reach an agreement.
All courts in California have an office called Family Court Services to provide mediation services to the parties in contested custody cases. Most custody mediation is handled through these court offices that provide their mediation services at no cost to the parties. As an alternative parties may request (either with an agreement or without) that the parties be referred to private Child Custody Recommending Counseling (CCRC) to assist parties in resolving contested custody issues and if needed, to investigate and prepare a recommendation to the court regarding custody. This counseling is done by an experienced therapist within special training dealing with contested custody issues. The expense of the private CCRC is paid by the parties, usually with the party who requested it advancing or paying 100% of the cost upfront with the court reserving the ability to divide the cost between the parties at a later date. Due to limited resources in the office of Family Court Services, most mediation sessions last between 15 minutes to one hour, whereas when the case is set for private CCRC the parties will spend multiple hours with the counselor who will also invest time outside of these meetings investigating and preparing recommendations. While it is not necessary or affordable for parties in all cases, private CCRC provides a valuable service to resolve difficult custody disputes.
If you are facing decisions regarding custody issues it is important that you contact an experience family law attorney who can advise you regarding your options and strategies to obtain a custody order in your children’s best interests.
by Chris Dietrich
The fundamental purpose of child support in California is to ensure that the needs of children are provided for. Under California law each parent has an obligation to financially support their children (Family Code §4053(b)). Practically, the state has adopted a uniform guideline formula to calculate the amount of support that should be paid keeping in mind each parent’s obligation to support their child. Simply speaking, the guideline formula calculates support based upon each parent’s income and the amount of time each parent has with her child.
To ensure that a child is supported, in the appropriate case the court may count a new spouse’s income in calculating support. However, under the law a new spouses’ income should not be considered except in an extraordinary case (Family Code §4057.5(a)(1)). The family code lists examples of these extraordinary cases, including when a parent “voluntarily or intentionally quits work or reduces income” or when a parent “intentionally remains unemployed or underemployed and relies on a subsequent spouse’s income” (Family Code §4057.5(b)). The law recognizes that in this case it is appropriate to use a new spouse’s income to calculate support so that the entire burden for supporting a child does not fall on the parent who is still working. (Marriage of Paulin (1996) 46 Cal.App.4th 1378, 1384, fn. 5).
It is important that if you are facing these issues that you contact an experienced family law attorney to ensure that child support is set in an amount that is fair and proper.