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Brandon M.
Brandon M., Family Law Attorney
Category: Family Law
Satisfied Customers: 12471
Experience:  Attorney experienced in all aspects of family law
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My wife and I are having problems. She asked me to move out

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My wife and I are having problems. She asked me to move out for a while so we could sort things out. Am I at risk for moving out? My house, my kids?  I agreed to move across town for an initial 2 month period of time.  Tonight is my first night away.  She felt so bad for our son that she suggested he do a sleep over with me.  I really think she is truely confused but I don't want to do something stupid.  We live in California, county of San Mateo.

Brandon M. :

Hello there.

Customer:

Hi, is this a robot or a real person?

Brandon M. :

Thank you for your question. Yes, I am a real person. I am an attorney licensed and practicing family law in California. To rephrase, the question is how moving out of a home might affect a spouses rights, including custodial rights. I will start by saying that, because the nuances of every case are different, you should not rely on this information as advice or apply it to a specific situation without a more thorough consultation with counsel.

Customer:

Are you waiting for me?

Brandon M. :

I would address the issue with the kids first, since that is the easy part. Moving out of the marital home generally does not affect custody rights. Custody is ordered according to the best interests of the children. If mom and dad live together and it isn't working out, the courts prefer that the couple live separate in peace instead of live together in conflict. Moving out of the home generally would not affect custody.

Brandon M. :

I can type around 80 words per minute, and around 50 words per minute when I am choosing my words carefully. Please bear with me. :-)

Brandon M. :

Has what I said made sense so far?

Customer:

No problem, sorry for being impatient.

Customer:

Yes, I think I follow you. Do you need more background info on my situation?

Brandon M. :

For the questions at hand, I do not think that I need much additional information, but let's see how the conversation develops.

Customer:

Ok, I'll patiently hold my breath. Lol.

Brandon M. :

Another common misconception is that moving out somehow forfeits the spouse's right to their share of the community equity in the home. That is simply false. Moving out does not affect each spouse's property rights in the home.

Brandon M. :

Actually, moving out usually benefits the person moving out, if anyone, due to some California-specific rules: namely, Epstein credits and Watts charges.

Brandon M. :

I'll explain Epstein credits and Watts charges as best I can:

Brandon M. :

Let's say that both spouses have a property right to their marital home and one spouse moves out. That means that the remaining spouse has exclusive use of the home even though both spouses have a property interest in the home. The spouse who moved out is entitled to reimbursement for the value of his portion of the home that was used exclusively by the wife. So, if half the home is the husband's and if the fair rental value of the home would be $1,000 per month, the wife would have to reimburse the husband $500 per month during the period of her exclusive use post-separation. These are called Epstein charges.

Customer:

My battery is dying, I have to run and get a power cord don't go away

Customer:

Im back, that was close. Let me read your answer now.

Brandon M. :

Furthermore, let's say that the husband continues paying the mortgage on the home post-separation. Since husband's post-separation funds are being used to pay a debt owned 1/2 by the wife, the husband is entitled to partial reimbursement of the amount paid toward the mortgage. These are called Watts charges.

Brandon M. :

So, in this hypothetical scenario, the husband might be entited to $500 in Epstein credits and $500 in Watts charges if he paid the mortgage, for a total reimbursement due of $1,000 per month.

Customer:

is "post-seperation" refer to filing legal separation papers or does it also apply to my situation in which I have voluntarily agreed to give my wife some space?

Brandon M. :

Separation, meaning the time when it is decided that irreconcilable differences have arisen in the marriage and that decision is communicated directly or indirectly from one spouse to the other.

Brandon M. :

Post-separtion meaning any point thereafter.

Customer:

Ok, we have not verbaly thrown in the towel. No one has said we are through and she is not claiming she wants a divorce.

Brandon M. :

I am not a fan of divorce in most cases, so that is good.

Brandon M. :

Has everything that I have said made sense?

Customer:

Yes, I'm following you. She is feaking out because of her questionable behavior lately that has broken the camels back. She doesn't have a job and I'm the sole bread winner, but she mentioned the other day that we could rent out the back room in our house. Can she change the locks and not let me back in, legaly?

Brandon M. :

Well, again, because the nuances of every case are different, you should not rely on this information as advice or apply it to a specific situation without a more thorough consultation with counsel. So, that said, where the husband has moved out of the marital home, as long as there is no third party who has a right to occupy the space (e.g. a rental agreement) and as long as the spouse who has moved out is on the title (and in most cases, even when he is not on the title), he can return to the home. I suppose that the wife could still change the locks, but the husband could hypothetically legally kick the door in to get access to his home again (not that I recommend it in most cases).

Brandon M. :

To clarify a bit on when the date of separation is, from an evidentiary standpoint, the critical inquiry is whether the parties’ conduct evinces a complete and final break in the marriage relationship.

Customer:

evidentiarty, critical, evinces...can you say that in laymans terms? Im thinking that in 2 months if she can't figure out what's going on or worse case, she asks me for a separation/divorce I'm inclined to move back in and make the back bedroom my apartment. I cannot afford a mortgage and external rent.

Brandon M. :

Well, although I have basically forgotten how to talk like a human, I will try. (Maybe you really are talking to a robot. But seriously...)

Brandon M. :

I just wanted to touch on the date of separation issue. I previously said that the date of separation is when the decision is made that irreconcilable differences have arisen in the marriage and it is communicated directly or indirectly to the other spouse. I basically just said the same thing, only phrased it in legalese. Some people like to know the language used by the courts, and that is what I was doing. Instead of dumbing it down, I was trying to smarten it up.

Brandon M. :

Does that make sense?

Customer:

Ok, but given what I've told you, that neither of us has said its over, do agree that there has been no date of separation established?

Customer:

Oh, and I understand that this is not legal advice. If I have to move forward I will consult a local lawyer.

Brandon M. :

I have no way of making that assessment with one piece of one half of a story involving people I have not met and a relationship I have not evaluated, so my assessment is basically worth less than yours, but you have not indicated to me that both of you are characterizing this as a 2 month cooling off period, of sorts, which would be inconsistent with an intent to permanently separate.

Customer:

so...what you just said was, by simply moving out temporarily as sort of a cooling off period, that would not constitute the intent to permanently separate? Right?

Customer:

And, yes. I see your point about not knowing me, my wife, etc. thus you cannot make the assessment that I was asking about.

Brandon M. :

A cooling off period is not an intent to permanently separate. If there is no dispute that it is a cooling off period only, it is not a separation.

Customer:

Ahhh, good.

Brandon M. :

Great. Let me know if further clarification is needed, and please keep in mind that the experts are not credited for unaccepted answers; even where I cannot solve every problem in a case, my hope is that you can at least feel confident in your knowledge of your rights so you can get the best legal outcome under the circumstances, whatever that outcome may be. Please remember to click accept once you are finished. Thank you.

Customer:

If I want to come back and have you specificaly answer more questions do I search for you on this site or is there a different means for contracting your answers?

Brandon M. :

The best way is actually to ask for me by name. That way, the other attorneys will set the question aside for me in case I am not online. For example "Attention Brandon M." works just fine.

Customer:

This is pretty late, would I be able to get you during the day?

Brandon M. :

I am not on at any specific time of day. I basically get online when I have free time, which also includes when things are slow during the work week. Today, for example, I was on from around 9:30a.m to noon, then since 11:00 this evening. I am on pretty much every day, but my hours are erratic. If you post a question, I will answer it as soon as I become available.

Customer:

OK, thanks. I'll be hitting the accept button now. I have some piece of mind from our conversation.

Brandon M. :

My pleasure.

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