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Case/Statue Laws - Separation

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D

dollfini

Guest
What is the name of your state? California

This is a rather complex situation.
I need to know if anyone knows of any statue cases that could be applicable towards determining whether or not a couple could be considered legally separated by the court, based upon evidence provided to the court for review. There are a couple of California 3rd district appellate cases that did rule that a couple could be considered legally separated if they knowingly acted as truly separated/single individuals without a formal declaration or petition for separation/dissolution of marriage being filed with the court (the cases are from the mid-1980s).

My father recently passed away. We found out he married someone in 2001 in Nevada.

Facts in evidence:

1)The home's title he inherited from his parents was kept in his name only as separate property before and during this marriage.
2) My father took out a refinance mortgage on the house earlier this year - all the paperwork states my father as an unmarried (not separated or married) man.
3) Statements were made to both the sheriff's department and another party by his 3rd wife that they were separated many years ago and had planned on getting a divorce but hadn't filed yet.
4) The wife owns her own larger separate home within the same state so would not be considered "destitute".
5) All tax records, including property tax, so far, show my father as a single person, not married or married-filing separately.
6) There is no final judgement of dissolution of marriage on record of the wife's former divorce in California - this has been varified by the court clerk.
7) The wife plans on filing a homestead probate petition with the court to allow her to use the home as the estate is being filed as intestate - even though her attorney also informed the sheriff's dept. and another party that there was indeed a will with my father's children being the only parties named in the will - and that the will did not state who was to inherit the property; the attorney is now claiming there is no will. The attorney informed the wife that it would probably be o.k. for her to go ahead and move into the house as it could take years for my father's children to be found and that by that time, we probably wouldn't contest anything.
8) The wife claimed on the death certificate that her residence at the time of death was my father's house - even though we have legal evidence that shows she was definitely not living in the house for quite a long time.
9) Within the same month, my father died on the 3rd, his death certificate states he was buried at sea on the 13th, yet I have a receipt from the mortuary that is dated for the 22nd - when she signed for his ashes. She has yet to provide a receipt or details of what company provided the burial at sea.

My father was ordered by the court during my parent's final divorce decree to pay lifetime alimony to my mother unless she died or remarried - my father stopped paying the alimony in 1991 - my mother became ssi disabled several years later - during the interim between the time he stopped paying and she became officially disabled, her health/medical conditions deteriorated to the point where she was unable to work and I covered the alimony payments my father was legally obligated to pay - she was/is my legally declared dependent on my federal/state income tax filings during this time. I am seriously considering filing a lien against the property to be reimbursed for the funds I paid out on his behalf. There was no formal agreement or written agreement between my father and myself for me to cover these expenses - I did it entirely on my own without his firsthand knowledge.

My attorney has filed the formal petition for probate and requesting that I become administrator of the estate - the funds from the refinance mortgage are not accounted for (most of it was used for debt consolidation but there is a large amount left over that was paid directly to my father before he died (he died 3 months after taking out the mortgage). It is my contention to have my father's complete estate accounted for either by or to the court and most likely, the court will rule to have the home sold to pay off the refinance mortgage and what is left is to be divided up by the court's discretion only.

I do not feel it's ethical nor legally sound for the wife to get to use the house as a homestead when she already has her own home, has the means to care for her own home, statements made to the authorities of being separated, and possibly having gotten access to the remaining funds from the refinance mortgage - to state she'd be willing to buy out my father's children's shares of the estate once the court determines the value - especially when tax assessment value etc., is not market value.

Any information is greatly appreciated. I am also going to post this on the Probate forum.
 



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