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Can I Remain In My Ex-Spouse’s House Even After Our Divorce?


California is well-known as a community property state. This means that in a contested divorce proceeding, the court is required to divide any property co-owned by both spouses equally, unless certain exceptions apply. This rule only applies to “community” property and not any separate property owned by either spouse.

As a general rule, separate property includes any property acquired by a spouse prior to marriage. For example, let’s say you own your own house while still single. You later get married and you and your spouse continue to live in the house. Unless you decide to file a new deed listing your spouse as co-owner, then the house itself remains your separate property. In the event of a divorce, your spouse would not be entitled to claim any community property rights in the house. There are exceptions to this and certain reimbursement claims that might be able to the other spouse, but that is a different topic.

California Appeals Court: Ex-Wife Is Not “Tenant” for Purposes of COVID-19 Protections

But if you do not have any ownership rights in your spouse’s home, could you claim to be their tenant instead? This question came up in a recent California divorce case, In re Marriage of Ayoub and Huang, and was prompted by the ongoing COVID-19 pandemic.

The husband and wife in this case married in 2015. They separated in 2018. Even after the separation, however, the wife continued to live in the husband’s home, which he acquired prior to the marriage.

The separation itself was prompted by the husband’s arrest following a fight with the wife. That arrest led to the husband pleading no-contest to a charge of disturbing the peace, for which he received probation. After that, the parties still lived together, although they apparently never spoke or socialized.

The family court concluded that it was not tenable for the parties to continue living in the same house with their children. The wife had asked to remain in the home with her daughter until the latter graduated high school in another two years. The judge refused that request, however, stating there was no legal grounds to force the husband to allow the wife and daughter to remain in his house without paying rent. (The wife offered to pay part of the utilities but no rent.) The court therefore confirmed the home was the husband’s separate property and he was to demand she leave.

On appeal, the wife argued that she could not be asked to leave as it amounted to an “eviction,” which was prohibited under California laws and regulations designed to protect tenants from eviction during the COVID-19 pandemic. But the California Fourth District Court of Appeal said that was not a valid argument, as the wife was never the husband’s tenant. To the contrary, she admitted to the family court that she paid no rent even after the separation. There was therefore no landlord-tenant relationship to protect.

Speak with a Campbell, California, Property Division Attorney Today

Resolving a family’s living situation during and after a divorce is often complicated. That is why it is best to work with an experienced Campbell divorce lawyer who can help guide you through the process. Contact Hepner & Pagan, LLP, today to schedule a consultation with a member of our team.

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