Sole Possession of the Family Residence – How? When? Why?

Are you separating from your spouse and want sole possession of the family residence?housepic

Not everyone has enough savings to move out immediately, especially families with young children (or none!) that are competing for housing in the Bay Area.  Many parents may also find it difficult to move because they have children who are enrolled in school and comfortable in their surroundings.  Perhaps there is another reason you want to stay in your home, such as a domestic violence situation.  There are many reasons.

Generally, there are two grounds for sole possession and use of the family home.  They can be largely differentiated by the length of sole possession sought.  One tends to be short term, and one more long term.  The first scenario, often more short term, is when a restraining order is in place.  The protected spouse, under California Family Code §6321, may retain immediate and temporary possession of the residence.  The second ground for, generally over a longer period, is when the parent of a minor child seeks to stay in the family home with the child for that child’s best interest.  (Cal. Fam Code §3800.)

Additionally, in any separation or divorce the issue of “separate property” versus “community property” usually comes into play.  In a dispute over the martial home, a first consideration is whether the home is community property (or jointly owned), since sole possession in that case would result in depriving one spouse of their own property.   For many couples, the home is the largest and sometimes only asset, and depriving one spouse of their only asset can be a significant issue.  Since assets acquired or paid for by earned income during the marriage are usually community property, you will need specific circumstances, such as a restraining order or minor children in your care in order to justify temporarily retaining your spouse’s community property interest in the home.  The court extends its jurisdiction in such cases, for example, to make orders for exclusive possession even when it impacts a joint tenancy (or property where both spouses have an equal right of ownership.)  (Carter v. Carter, 148 Cal. App. 2d 845 (1957).)

1. Domestic Violence Situation

If violence (or a credible threat of violence, harassment, or a physical altercation) has occurred in the home, you may be able to get immediate orders to exclude your spouse from the home.  An attorney can help you file a request to exclude the abusive spouse from the home, or you may do so on your own.  Exclusion from the dwelling is based on California Family Code §6321, which states that:

The court may issue an ex parte (emergency) order excluding a party from the family dwelling… the common dwelling of both parties, or the dwelling of the person who has care, custody, and control of a child to be protected from Domestic Violence for the period of time and on the conditions the court determines, regardless of which party holds legal or equitable title or is the lessee of the dwelling.

In order to be protected under this section the party seeking possession needs to show:

1)      They have some right to be in the dwelling (i.e. already living there with spouse.)

2)      That an assault or threats were actually made by the other party.

3)      Physical or emotional harm is likely to result to the requesting party, or their children, without the requested order.

2. Care and Protection of Minor Children in the Marital Dwelling

What if there is no domestic violence between you and your spouse, but you have minor children in the home?

Under Family Code §3800, a parent may ask the court to make an order to defer the sale of the home, “and award temporary exclusive possession of the family home to a custodial parent of a minor child, whether or not the custodial parent has sole or joint custody in order to minimize the adverse impact of dissolution of marriage or legal separation of the parties on the welfare of the child.”

What does the court look at to determine if the sale of the home should be deferred?  In two words – “economic feasibility.” (Cal. Fam Code §3801.)  The court wants to ensure that the party staying in the home can cover the mortgage, property taxes and insurance.  Child support and spousal support may be requested to ensure this, as well.  To determine economic feasibility, the court looks at these factors:

1)      The resident parent’s income.

2)      The availability of spousal and/or child support from the other party.

3)      Any other funds available to make payments.

The intention of the court in examining these things is to ensure that defaults or foreclosures do not occur, which jeopardize both spouses’ community property interest in the home.  If the court determines that it is economically feasible to defer the sale of the marital home, sometimes until the child is 18 (or 19 and out of high school), they will then examine the following under California Family Code §3802:

1)      Length of time child resided in the home.

2)      Child’s school and grade level.

3)      Accessibility of home to child’s school/child care.

4)      Physical disabilities of child.

5)      Possible emotional detriment to child from change in residence.

6)      Location of the home to enable parent to continue employment.

7)      Financial ability of each parent to obtain suitable housing.

8)      Financial consequences on the parties.

9)      Economic detriment to the nonresident parent.

In one authoritative California case, the court examined these factors and ordered that deferring the sale of the marital home was appropriate until the minor child reached the age of 18, since it was in the best interests of the child.  (In re Marriage of Braud, 45 Cal. App. 4th 797, 807 (1996).)  This tells us that the court will often make a determination based on the best interests of the child and then follow this up with an economic feasibility determination.  In the Braud case, the court found that deferral of the sale of the home was feasibile because there was no outstanding mortgage balance, and the father of the children had enough income and separate property to obtain his own housing.

3. Conclusion

What if you don’t know if you meet these conditions?  It is likely worth a review and consultation, as often things can be done to reach a settlement or examine the facts to see if one of these, or a substantially similar situation may apply.  If you would like to schedule a consultation, please call our offices at (415) 795-3840.  We are happy to answer your questions.


This site and our blogs are for informational purposes only and do not constitute legal advice.

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