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Hello and thank you for contacting us. This is Dwayne B. and I’m an expert here and looking forward to assisting you today. If at any point any of my answers aren’t clear please don’t hesitate to ask for clarification. Also, I can only answer the questions you specifically ask and based on the facts that you give so please be sure that you ask the questions you want to ask and provide all necessary facts.
When were you served with the papers from the small claims court?
You may have a problem because you MUST file an answer to the petition or the court may not let you argue anything and may issue a default judgment against you in which case you have to appeal.
You still would want to file the answer today and get a copy to him somehow.
You will want to argue that since this truck was purchased during the marriage then the divorce court is the one that has jurisdiction over it as an "undistributed asset of the marriage" and that the proper thing to do is for him to file the case in that court asking the divorce court to award the truck to him.
I usually don't do case law research because it costs so much but if you'll give me just a few minutes I'll see if I can find you a case cite to use.
Ok, what you are looking for is in Section 2556 of the California Code which you can see at http://law.justia.com/codes/california/2010/fam/2550-2556.html
No, when it says no assets it doesn't mean there are no assets since there wasn't a hearing on the assets and since you state in your facts the truck did exist during the marriage then it should have been addressed in the divorce papers. Your lawyer should have included a listing of all community property and divided it and all separate property and confirmed it.
However, the section I just gave you says that the divorce court is the court with jurisdiction to hear the case, not the small claims court.
That is also the correct way to handle this since he is claiming it is a marital asset, you go back to the divorce court and have it decide whether it is or is not a marital asset that wasn't divided.
Usually, yes. Giving the title is what is known as "specific performance" and I don't see in the petition where he asked for that and normally a small claims court judge doesn't have the power to award specific performance.
You would have also been entitled to counter-sue for the amount of value he received for the use of the truck but, again, it is likely too late for that unless you can get the judge to delay the proceeding. By arguing that the other court has jurisdiction over the truck it allows you to get your "ducks in a row".
That's not something I can advise on since it depends on so many factors. Most courts don't like for people to "self help" in case like this because there are so many chances for things to go wrong.
Yes, a court retains jurisdiction to divide marital property that existed and wasn't divided in the divorce. You usually see this with things like pensions someone forgot about or property someone hid.
It doesn't mean he can get it, anything purchased before the marriage is still separate property but if he claims it is community/marital property then the divorce court is the place to hear the dispute, not another court.
You're very welcome.
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