How to Divide Interests in Real Property When the Property Is Not Community

• Jurisdiction: California,United States
• Author: Nancie Yomtov
• Publication year: 2016
• Citation: Vol. 38 No. 4

How to Divide Interests in Real Property When the Property is Not Community

Nancie Yomtov

Nancy Yomtov graduated from Ohio State University, received an MA in Social Psychology from John Jay University and her JD from Santa Clara University School of Law in 1980. She is a Certified Family Law Specialist. 90% of her practice is in family law; the other 10% is probate, conservatorships, and guardianships.

Why would a family lawyer be interested in how to divide the property of unmarried people? We are divorce lawyers, not civil lawyers. Don't we deal in dissolutions? Why would we care, and what difference does it make? This article answers these questions and more.

Over the years, I have done several partition and accounting actions under Civil Code sections 872.010, et seq. They were interesting and fit into my family law practice in an indirect way, as they often involved siblings who jointly inherited property or other people in close relationships. These actions were brought in civil court when there was no pending dissolution action in family court.

Also, there are at least two other situations in which a partition action is the only way to deal with real property. One is a confidential parentage action. Those cases have limited jurisdiction, including custody and child support, and that action does not include jurisdiction over property, real or personal. Another situation has been of recent interest among the family law community: what do you do about real property in California when the divorce was in another state? It is my opinion that the real property must be dealt with in California, as no other state has jurisdiction over California real property. Similarly, in a probate action in California, the California court has no jurisdiction over property in another state. In these probate actions, one has to commence an ancillary probate action in the state where the real property is situated.

Another case sticks in my mind. It involved what I had thought at the time was an older couple. (In their seventies! My, how times change.) He was married and his wife had Alzheimer's. After he and his girlfriend bought a house together, the girlfriend talked him into signing the property over to her to protect her interest should he die. He deeded the property to her on the promise that she would deed his interest back when it was "safe" to do so. Guess what? The house was in a gated community, and he couldn't even visit it. A friend of mine had filed an action and the court awarded the client a half interest in the property, but she couldn't get the property sold. She gave up on it and asked me to take over. The girlfriend and the realtor were good friends and never had any intention of selling the property. They had listed it at an unrealistically high asking price and never lowered the price, leading other realtors to conclude that because it had been on the market for so long, there must be something wrong with it.

After the case was referred to me, I filed a partition and accounting action. Normally, the partition process has several steps. First, the plaintiff must establish that he has an interest in the property. Next, the court decides to split it in kind, if possible, or order it either sold or appraised so that one co-tenant can buy the property from the other co-tenant. I wanted to shorten the process, so the first thing I did when I filed the action was to also file a motion asking the court to change the realtor. I told my client that this was a gamble, as it was not really time to ask for this sort of relief, but the other side did not make that argument, and the gamble paid off. We got our preferred listing agent to deal with the property. We also told the girlfriend that if she cooperated with the sale, we would not ask her for rent. My client got his money out in relatively short order.

I learned a lot about doing partition and accounting actions, and some of what I learned was helpful in dividing community property residences in my dissolution practice. For example, I learned what to do when the in-spouse refuses to cooperate in selling the property. In one civil partition and accounting action, I had a referee appointed, but I didn't at first ask for sufficient powers to move the property. As the referee described it, I had gotten him all of the powers of a "wet noodle." I then got another order giving the referee any and all powers to list, sell and convey the property, including getting such things as termite reports. I have since used those same orders in family court, but gave the powers to the out-spouse - my client - after a showing of non-cooperation in getting a property sold.

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A partition and accounting action under the Civil Code is an equitable action and the judge has much greater discretion in dividing the property then than would a judge under the Family Code. A few years ago, a woman involved in a Confidential Parentage (CP) case hired me to deal with the property she and her...