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LawTalk
LawTalk, Attorney and Counselor at Law
Category: Family Law
Satisfied Customers: 37818
Experience:  30 years legal experience. I remain current in Family Law through regular continuing education.
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I am wanting to get a divorce, I live in California married

Customer Question

I am wanting to get a divorce, I live in California married 4 years. I have a 3 year old daugter by my current husband and a 11 year old daughter by my x husband.
My current husband says the house we own is all his because it is under his name. we got married a few months after he bought it.
He insists that this is my house and i must leave this house with my kids. This legally true?
Submitted: 1 year ago.
Category: Family Law
Expert:  LawTalk replied 1 year ago.

Good morning Angela,

I'm Doug, and I'm very sorry to hear of your situation. My goal is to provide you with excellent service today.

No, legally that is not true, and for several reasons.

1. One spouse may never force another spouse to leave the marital residence.

2. While the property may be in his name only, presuming that the mortgage has been paid since marriage with income earned during marriage, the home is a community property asset and you have a right to part of the equity in the home.

In fact, as you are planning a divorce, there are certain things that you might consider. You may well be able to force him to leave---at least while the divorce is still ongoing. Let me explain.

In order to force your spouse to relocate from the marital home, or to pay support either for yourself or your child of the marriage, it will be necessary for you to file for divorce. After doing that, you will want to ask the court to set what is known as a Temporary Hearing. A temporary hearing is a court proceeding held soon after the filing of a divorce action and allows the parties to ask the court to issue orders affecting the other party that will remain in effect, typically until at least the time of the divorce decree.

At that hearing you may ask the judge to order your spouse to move from the marital home, to grant you primary residential custody of your child from the relationship, as well as for an order that your spouse pay you both child support, and spousal support/alimony, until at least the entry of the divorce decree.

This is a very critical hearing to ask for. This hearing is not automatic, and if you do not request it, it may never be held. Another important thing to consider is having a local Family Law attorney assist you at this hearing. What occurs at the Temporary Hearing often signals what will happen after the divorce, both in terms of child custody and child support as well as spousal support. It is important for your future that you do well at the Temporary Hearing.

Presuming that you are the primary caretaker of your children, you can expect that the judge will make the temporary order such that you and the children will remain in the home and your husband moves out---this is pretty common and is really in the best interests of the children. However, as your husband owns the property in his name only, and while you will get some money from your legal community property interest in the property. Eventually he will be granted possession of the home. Most likely this will occur sometime after the decree is issued.

In terms of child support, with 1 child of the marriage, you can expect the court to award you approximately 20% of your spouse's monthly income.

Based on the number of years you have been married, and based on the presumed difference in your respective incomes, it is likely that you will qualify for spousal support, for at least a number of years.

Issues the court will generally look at in determining spousal support include:

1. The present respective incomes of the parties;

2. The education levels and earning capacities of the parties;

3. The ages and the physical, mental and emotional conditions of the parties;

4. The duration of the marriage;

5. Whether either party will be caring for children of the marriage;

6. The standard of living established during the marriage.

While the amount of spousal support you might be awarded can be virtually impossible to determine based on the facts you have provided, when spousal support is awarded in similar situations it generally amounts to 15% to 25% of the higher earning spouse's income. The duration of spousal support often runs approximately 50% the number of years of the marriage. In long term marriages of 10 years and longer, spousal support can be made permanent by the court---terminating usually on the remarriage of the receiving party or upon their cohabitation with a new partner.

You may reply back to me using the Reply link and I will be happy to continue to assist you until I am able to address your concerns, to your satisfaction.

Please be so kind as to rate my service to you. That is the only way I am credited for assisting you.

I wish you and yours the best in 2016,

Doug

Expert:  LawTalk replied 1 year ago.

Good afternoon,

Do you have any additional questions that you would like me to address for you? In case you would like a phone call to further discuss these issues you have raised, I will make that offer to you. You are certainly not obligated to accept a call offer, but many people do find it helpful for clarification purposes, as well as to allow them to ask additional questions.

If I have provided you with the information you were seeking, would you please now rate my service to you?

Please keep in mind that, even though you have already paid your deposit money over to JustAnswer, until you rate me highly for my service, I will not be paid for having assisted you with your questions.

Thanks in advance,

Doug