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Does Common Property Law Take Circumstances Into Account?

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johnharlin

Junior Member
What is the name of your state (only U.S. law)? California

I have a friend who is going through a divorce. The husband moved out of the home a week after she presented him with divorce papers. It was based on him having affairs with other women which he admits to.

He stopped paying the mortgage on the home when he moved out. That left her with $3000 per month in mortgage payments and another $3000 per month in living expenses. The husband was ordered to pay temporary alimony and is not paying it. She has two kids living at home. The divorce has been going on for a year and a half and she said she has gone through $70,000 of her own savings and that she cannot maintain the house much longer at that rate.

Rather than be forced into selling the beautiful home, such a home which she would never again be able to afford, she has decided to rent rooms. But she is afraid of telling anyone that she is doing this including her attorney.

She has tremendous fears about what she has done renting the rooms including that if the judge orders that the home be sold and her husband gets half, she will have to pay the renters to leave because that's the law in California that if renters are forced to leave you have to pay them a pretty hefty amount like 5-10,000 each, something like that.

She is also worried the husband will get half the rent of the rooms which would not help her meet the mortgage payments.

The point is that should not the law also be looking at the fact that this woman is renting rooms not to make a profit but renting the rooms for her own survival. Common property law should not exclude the circumstances that are going on in this case. And that even if the judge awards the husband half the house, then he should give the wife a time period to sell the home after the yearly lease expires so as to avoid even more penalties on this unfortunate woman. It also has to be taken into account that the divorce was due to his infidelities not hers.
 
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Silverplum

Senior Member
What is the name of your state (only U.S. law)? California

I have a friend who is going through a divorce. The husband moved out of the home a week after she presented him with divorce papers. It was based on him having affairs with other women which he admits to.

He stopped paying the mortgage on the home when he moved out. That left her with $3000 per month in mortgage payments and another $3000 per month in living expenses. The husband was ordered to pay temporary alimony and is not paying it. She has two kids living at home. The divorce has been going on for a year and a half and she said she has gone through $70,000 of her own savings and that she cannot maintain the house much longer at that rate.

Rather than be forced into selling the beautiful home, such a home which she would never again be able to afford, she has decided to rent rooms. But she is afraid of telling anyone that she is doing this including her attorney.

She has tremendous fears about what she has done renting the rooms including that if the judge orders that the home be sold and her husband gets half, she will have to pay the renters to leave because that's the law in California that if renters are forced to leave you have to pay them a pretty hefty amount like 5-10,000 each, something like that.

She is also worried the husband will get half the rent of the rooms which would not help her meet the mortgage payments.

The point is that should not the law also be looking at the fact that this woman is renting rooms not to make a profit but renting the rooms for her own survival. Common property law should not exclude the circumstances that are going on in this case. And that even if the judge awards the husband half the house, then he should give the wife a time period to sell the home after the yearly lease expires so as to avoid even more penalties on this unfortunate woman. It also has to be taken into account that the divorce was due to his infidelities not hers.
IF your friend wishes to discuss her situation, she may sign up here and ask.

We aren't here to discuss or debate the merits of each and every law in each and every state: that's a waste of our time. The laws are what they are, and we try to help people today with what IS.

Others: PHX.
 

single317dad

Senior Member
First off, this forum generally prefers to deal with actual parties to the case. It's a lot easier to get direct, accurate answers from those actually involved, and discussing someone else's legal business online (or anywhere) is generally considered bad form. That said, some of us don't mind helping "through a friend" sometimes, so I will try to assist you to the extent I am able.

Your friend's lawyer should be aware of all pertinent information. Keeping secrets from her lawyer does not help her.

Infidelity is not a grounds for divorce in California. What your friend is pursuing is a standard no-fault "irreconcilable differences" divorce. In the vast majority of cases, his infidelity would not play into the final dissolution.

The lawyer should be assisting your friend in enforcing the alimony order. What have she and the lawyer done in an effort to force the husband to pay? Is the husband paying child support?

The husband is indeed probably entitled to his share of the income generated from the marital asset (the home). Hiding these funds puts her on the same shaky ground as him not paying alimony and/or support.

If there is not enough liquidity in other marital assets to divide the equity in the home, the home will likely be sold as a condition of the property division.

In the end, she may just have to accept that she can't afford the home on her own. That's the unfortunate result of divorce in many cases.
 

LdiJ

Senior Member
First off, this forum generally prefers to deal with actual parties to the case. It's a lot easier to get direct, accurate answers from those actually involved, and discussing someone else's legal business online (or anywhere) is generally considered bad form. That said, some of us don't mind helping "through a friend" sometimes, so I will try to assist you to the extent I am able.

Your friend's lawyer should be aware of all pertinent information. Keeping secrets from her lawyer does not help her.

Infidelity is not a grounds for divorce in California. What your friend is pursuing is a standard no-fault "irreconcilable differences" divorce. In the vast majority of cases, his infidelity would not play into the final dissolution.

The lawyer should be assisting your friend in enforcing the alimony order. What have she and the lawyer done in an effort to force the husband to pay? Is the husband paying child support?

The husband is indeed probably entitled to his share of the income generated from the marital asset (the home). Hiding these funds puts her on the same shaky ground as him not paying alimony and/or support.

If there is not enough liquidity in other marital assets to divide the equity in the home, the home will likely be sold as a condition of the property division.

In the end, she may just have to accept that she can't afford the home on her own. That's the unfortunate result of divorce in many cases.
I disagree with the bolded.

The husband might very well be entitled to 1/2 of the PROFIT, if any, generated from the marital asset. He is not entitled to 1/2 of the income unless he is paying 1/2 of the expenses, which he is clearly not doing.
 

single317dad

Senior Member
I disagree with the bolded.

The husband might very well be entitled to 1/2 of the PROFIT, if any, generated from the marital asset. He is not entitled to 1/2 of the income unless he is paying 1/2 of the expenses, which he is clearly not doing.
In the end, by all rights, the rent income should be considered an asset and the ongoing expenses a liability. Husband should get his share of both, rightfully.
 

LdiJ

Senior Member
In the end, by all rights, the rent income should be considered an asset and the ongoing expenses a liability. Husband should get his share of both, rightfully.
Again, I disagree. It doesn't make sense from an accounting or practical standpoint. Lets say, for the sake of discussion that its a gas station instead of a house, and that its owned by two people who are divorcing. Would you think that each person should get 1/2 of the gross income and then have to pay half of every invoice the business receives? Or would you say that the person running the business should pay all of the bills of the business and then give the other owner 1/2 of the profit?

It would be impractical and unwieldy your way.
 

Zigner

Senior Member, Non-Attorney
Perhaps the easiest way to sum up what you (both) are saying is this: Income, as used above, means net income.
 

stealth2

Under the Radar Member
I see it as more of an issue wrt the kids. I know that I would not be at all cool with my kids living primarily in a house with a load of strangers. Basically a boarding house.
 

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