divgradcurl said:
You didn't read what HomeGuru wrote. The property was acquired during the marriage, therefore the presumption is that the property is community property. It may be possible to overcome the presumption IF it can be proved that the house was a "gift" to the son -- however, if ANY community property was used to pay for or maintain the house, you'll never be able to overcome the CP presumption.
If the house was paid for in full prior to the quit claim to the son, then (based solely on the facts you've given) theres probably a pretty fair chance of proving that the quit claim was a gift, and the presumption of CP would be overcome, especially if the parents filed a gift tax return when the quit claimed the property originally.
However, if the house was still subject to a mortgage when it was transferred to the son, and the mortgage was paid by the son (or the son and wife) with money earned from their jobs, then forget about it -- the house is community property, and therefore you'll need the wife's permission to quit claim the property back. Just because the wife's name isn't on the deed doesn't mean that she doesn't have rights to the property.
My response:
Well, that's not entirely true. He doesn't need her permission since her name wasn't on the Deed. However, if there's a Dissolution case pending, he had better read the back of his Summons. There's a mutual Restraining Order on the back, that reads - -
WARNING: California law provides that, for purposes of division of property upon dissolution of a marriage or domestic
partnership or upon legal separation, property acquired by the parties during marriage or domestic partnership in joint
form is presumed to be community property. If either party to this action should die before the jointly held community
property is divided, the language in the deed that characterizes how title is held (i.e., joint tenancy, tenants in common, or
community property) will be controlling, and not the community property presumption. You should consult your attorney
if you want the community property presumption to be written into the recorded title to the property.
STANDARD FAMILY LAW RESTRAINING ORDERS
Starting immediately, you and your spouse or domestic partner are restrained from
1. removing the minor child or children of the parties, if any, from the state without the prior written consent of the other party or
an order of the court;
2. cashing, borrowing against, canceling, transferring, disposing of, or changing the beneficiaries of any insurance or other
coverage, including life, health, automobile, and disability, held for the benefit of the parties and their minor child or children;
3. transferring, encumbering, hypothecating, concealing, or in any way disposing of any property, real or personal, whether
community, quasi-community, or separate, without the written consent of the other party or an order of the court, except in the
usual course of business or for the necessities of life; and
You must notify each other of any proposed extraordinary expenditures at least five business days prior to incurring these
extraordinary expenditures and account to the court for all extraordinary expenditures made after these restraining orders are
effective. However, you may use community property, quasi-community property, or your own separate property to pay an attorney to
help you or to pay court costs.
4. creating a nonprobate transfer or modifying a nonprobate transfer in a manner that affects the disposition of property subject to
the transfer, without the written consent of the other party or an order of the court. Before revocation of a nonprobate transfer can
take effect or a right of survivorship to property can be eliminated, notice of the change must be filed and served on the other
party.
Our writer's wife retains a Community Property interest in those 5 years worth of ownership, even though her name isn't on the Deed. So, what this means is that:
1. He'll be fined and possibly jailed for transferring the house; and
2. Someone is going to have to buy out her 5 year interest in the house.
IAAL