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socrateaser, Lawyer
Category: Family Law
Satisfied Customers: 39139
Experience:  Retired (mostly)
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I have gone through a very difficult divorce. I own my home.

Resolved Question:

I have gone through a very difficult divorce. I own my home. My boyfriend and his two children are going to move in with me in the next three weeks. He does not have any assets. What precautions, if any, should I take before they move in with me?

Thanks in advance.
Submitted: 8 years ago.
Category: Family Law
Expert:  socrateaser replied 8 years ago.

Under Family Code Sec. 4323(a)(1), cohabiting with a person of the opposite sex creates a rebuttable presumption that a the cohabiting spouse has a reduced need for spousal support. So, there is a risk.


Also, once your boyfriend is moved in, you would have to evict him with 30 days notice to remove him and the children (60 days, if living there for one year or more), and then an unlawful detainer action, which is a real civil action, not small claims, so it's expensive. And, there is no way to avoid this outcome.


Finally, under California law, cohabiting parters can sometimes be forced to pay support, if the complaining partner can prove a contract for something other than sex between the parties. And, if the boyfriend helps pay the mortgage or improvements in the property, then he would obtain an "equitable" interest in reimbursement for those contributions.


The only way to avoid the downside of the last paragraph above is to enter into a signed contract detailing the relationship rights and duties. Most people cannot manage to do this, because it's too emotionally charged. But, that's what you would have to do.


On the other hand, if you never leap, you never love. And, there are no guarantees in life.


Hope this helps.


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Customer: replied 8 years ago.
If they moved in with me and he paid a certain amount of money to split expenses . . . should I write up a co-habitation agreement for this? Also, if we should eventually break up, could he legally take a portion of my real estate . . . even though my property is in my name only?
Expert:  socrateaser replied 8 years ago.

1. Cohabitation agreement: You could do this. You could also set up a separate checking account into which any funds to pay joint expenses would go, and then never commingle any other money or assets, or pay bills from any other account. Then, there would always be a clean audit trail of every money transaction concerning the relationship.


2. Piece of your real estate: not title, but equity, i.e., a lien against the value of your property, which could require you to refi, and pay him is portion, just as if he had title. The only way around this is a lease, same as any other tenant, so he knows what he owes for "rent."

Customer: replied 8 years ago.

Thanks. XXXXX write up a co-habitation/lease agreement will I have to report his payments to me as income?


Forgive me please for all of my questions, I am a new Paralegal (I guess I'm one of the worst ones to ask you guys questions . . .) and am trying to get my life back in order after my divorce five years ago. I have worked very hard for what I currently have and don't want to put myself in a position where I could possibly loose some of it. Please advise



Expert:  socrateaser replied 8 years ago.

Sharing expenses is not considered taxable income, whereas a rental agreement would be. But, I'm not sure how the IRS would know the difference, since the rent check from your boyfriend for shared expenses would look the same as the check from a tenant.


The lease agreement is more of a fallback position, anyway, in case everything falls apart. Until then, you're just sharing expenses.



Customer: replied 8 years ago.
O.K. Thanks for your assistance!
Expert:  socrateaser replied 8 years ago.
You're welcome and good luck!
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