{"id":363,"date":"2013-10-01T09:54:04","date_gmt":"2013-10-01T16:54:04","guid":{"rendered":"http:\/\/familyfirstlegal.com\/?p=363"},"modified":"2014-10-19T23:43:53","modified_gmt":"2014-10-20T06:43:53","slug":"sole-possession-of-the-family-residence-how-when-why","status":"publish","type":"post","link":"https:\/\/familyfirstlegal.com\/?p=363","title":{"rendered":"Sole Possession of the Family Residence – How? When? Why?"},"content":{"rendered":"

Are you separating from your spouse and want sole possession of the family residence?\"housepic\"<\/a><\/p>\n

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.\u00a0 Many parents may also find it difficult to move because they have children who are enrolled in school and comfortable in their surroundings.\u00a0 Perhaps there is another reason you want to stay in your home, such as a domestic violence situation.\u00a0 There are many reasons.<\/p>\n

Generally, there are two grounds for sole possession and use of the family home.\u00a0 They can be largely differentiated by the length of sole possession sought.\u00a0 One tends to be short term, and one more long term.\u00a0 The first scenario, often more short term, is when a restraining order is in place.\u00a0 The protected spouse, under California Family Code \u00a76321, may retain immediate and temporary possession of the residence.\u00a0 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\u2019s best interest.\u00a0 (Cal. Fam Code \u00a73800.)<\/p>\n

Additionally, in any separation or divorce the issue of \u201cseparate property\u201d versus \u201ccommunity property\u201d usually comes into play.\u00a0 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.\u00a0 \u00a0For many couples, the home is the largest and sometimes only asset, and depriving one spouse of their only asset can be a significant issue.\u00a0 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\u2019s community property interest in the home.\u00a0 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.) \u00a0(Carter v. Carter<\/i>, 148 Cal. App. 2d 845 (1957).)<\/p>\n

1. Domestic Violence Situation<\/h1>\n

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.\u00a0 An attorney can help you file a request to exclude the abusive spouse from the home, or you may do so on your own.\u00a0 Exclusion from the dwelling is based on California Family Code \u00a76321, which states that:<\/p>\n

The court may issue an ex parte (emergency) order excluding a party from the family dwelling\u2026 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.<\/p>\n

In order to be protected under this section the party seeking possession needs to show:<\/p>\n

1)\u00a0\u00a0\u00a0\u00a0\u00a0 They have some right to be in the dwelling (i.e. already living there with spouse.)<\/p>\n

2)\u00a0\u00a0\u00a0\u00a0\u00a0 That an assault or threats were actually made by the other party.<\/p>\n

3)\u00a0\u00a0\u00a0\u00a0\u00a0 Physical or emotional harm is likely to result to the requesting party, or their children, without the requested order.<\/p>\n

2. Care and Protection of Minor Children in the Marital Dwelling<\/h1>\n

What if there is no domestic violence between you and your spouse, but you have minor children in the home?<\/p>\n

Under Family Code \u00a73800, a parent may ask the court to make an order to defer the sale of the home, \u201cand 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.\u201d<\/p>\n

What does the court look at to determine if the sale of the home should be deferred?\u00a0 In two words \u2013 \u201ceconomic feasibility.\u201d (Cal. Fam Code \u00a73801.)\u00a0 The court wants to ensure that the party staying in the home can cover the mortgage, property taxes and insurance.\u00a0 Child support and spousal support may be requested to ensure this, as well.\u00a0 To determine economic feasibility, the court looks at these factors:<\/p>\n

1)\u00a0\u00a0\u00a0\u00a0\u00a0 The resident parent\u2019s income.<\/p>\n

2)\u00a0\u00a0\u00a0\u00a0\u00a0 The availability of spousal and\/or child support from the other party.<\/p>\n

3)\u00a0\u00a0\u00a0\u00a0\u00a0 Any other funds available to make payments.<\/p>\n

The intention of the court in examining these things is to ensure that defaults or foreclosures do not occur, which jeopardize both spouses\u2019 community property interest in the home.\u00a0 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 \u00a73802:<\/p>\n

1)\u00a0\u00a0\u00a0\u00a0\u00a0 Length of time child resided in the home.<\/p>\n

2)\u00a0\u00a0\u00a0\u00a0\u00a0 Child\u2019s school and grade level.<\/p>\n

3)\u00a0\u00a0\u00a0\u00a0\u00a0 Accessibility of home to child\u2019s school\/child care.<\/p>\n

4)\u00a0\u00a0\u00a0\u00a0\u00a0 Physical disabilities of child.<\/p>\n

5)\u00a0\u00a0\u00a0\u00a0\u00a0 Possible emotional detriment to child from change in residence.<\/p>\n

6)\u00a0\u00a0\u00a0\u00a0\u00a0 Location of the home to enable parent to continue employment.<\/p>\n

7)\u00a0\u00a0\u00a0\u00a0\u00a0 Financial ability of each parent to obtain suitable housing.<\/p>\n

8)\u00a0\u00a0\u00a0\u00a0\u00a0 Financial consequences on the parties.<\/p>\n

9)\u00a0\u00a0\u00a0\u00a0\u00a0 Economic detriment to the nonresident parent.<\/p>\n

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.\u00a0 (In re Marriage of Braud<\/i>, 45 Cal. App. 4th 797, 807 (1996).)\u00a0 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.\u00a0 In the Braud<\/i> 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.<\/p>\n

3. Conclusion<\/h1>\n

What if you don\u2019t know if you meet these conditions?\u00a0 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.\u00a0 If you would like to schedule a consultation, please call our offices at (415) 795-3840.\u00a0 We are happy to answer your questions.<\/p>\n

DISCLAIMER<\/h4>\n

This site and our blogs are for informational purposes only and do not constitute legal advice.<\/p>\n","protected":false},"excerpt":{"rendered":"

Are you separating from your spouse and want sole possession of the family residence? 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.\u00a0 Many … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-363","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"jetpack_featured_media_url":"","_links":{"self":[{"href":"https:\/\/familyfirstlegal.com\/index.php?rest_route=\/wp\/v2\/posts\/363","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/familyfirstlegal.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/familyfirstlegal.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/familyfirstlegal.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/familyfirstlegal.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=363"}],"version-history":[{"count":5,"href":"https:\/\/familyfirstlegal.com\/index.php?rest_route=\/wp\/v2\/posts\/363\/revisions"}],"predecessor-version":[{"id":404,"href":"https:\/\/familyfirstlegal.com\/index.php?rest_route=\/wp\/v2\/posts\/363\/revisions\/404"}],"wp:attachment":[{"href":"https:\/\/familyfirstlegal.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=363"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/familyfirstlegal.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=363"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/familyfirstlegal.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=363"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}