Can spouse start a civil case and evict me from our home

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Latest post Tue, Nov 1 2016 4:23 PM by Gixxertoyz. 14 replies.
  • Thu, Aug 6 2015 7:49 AM

    • Gixxertoyz
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    Can spouse start a civil case and evict me from our home

    We have a divorce filed in another county and she is trying to start a civil suit against me to have me evicted (California ), . This is community property and judge in other county has grated that I can reside here until divorce is final. She has filed civil suit in another county without disclosing facts that we are in divorce proceedings. What are my rights?

  • Thu, Aug 6 2015 8:26 AM In reply to

    Re: Can spouse start a civil case and evict me from our home

    You have the right to an attorney.

    Get one.

    Your question speaks volumes about your inability to properly respond to the lawsuit.

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • Thu, Aug 6 2015 10:00 AM In reply to

    Re: Can spouse start a civil case and evict me from our home

    I 2nd Jack's suggection of a lawyer.

    I am not a lawyer but I think you sound like you need one.

    As an aside, I cannot imagine the climate in the house if you both live in it while divorcing.  That's got to be something like the movie War of the Roses.  Do you divide up the teritory with common areas like kitchen and bathroom?  I don't know the answers.  

    Hire and talk to a lawyer, but in my mind, it sounds like there's a risk of a domestic violence dispute.  And then there's the usual shot gun approaches that may be used, she'll say you are an alcoholic, you do drugs, you have other women in the house with you.  Whatever.  

    If you have never been through a divorce before, my suggestion is this. 

    Step #1 Hire a divorce lawyer

    Step #2 Listen to him or her and do as the suggest

    Step #3 This one is my person thought, so take it as you want, but I would suggest you tell you lawyer not to bother you with things that he knows are just smoke and you don't need to know about them.  If you read and get upset about it all during this time, you will drive yourself crazy.  She's gonna request you give her the universe and who knows what else.  You have to remain cool and calm in all of this.

    I do not envy you and I wish you the best of luck in this!

     

     

  • Fri, Aug 7 2015 1:45 PM In reply to

    Re: Can spouse start a civil case and evict me from our home

    Gixxertoyz:
    What are my rights?

    An odd question given the facts stated.  Like everyone else, you have dozens of legal rights, and it would serve no useful purpose to try and list them all.

    You wrote that you have a divorce pending "in another county" and that your wife filed a civil suit "in another county."  I'm not sure exactly what you're saying here, but divorces are supposed to be filed in the county where either party has resided for at least three months prior to the date of filing.  Likewise any lawsuit the purpose of which is to evict someone from real property should be filed in the county where the property is located.

    In any event, I suggest you speak with your attorney about filing a demurrer to the civil lawsuit based on Section 430.10(c) of the Code of Civil Procedure (http://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=CCP&division=&title=6.&part=2.&chapter=3.&article=1).

  • Fri, Aug 7 2015 4:44 PM In reply to

    • Gixxertoyz
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    Re: Can spouse start a civil case and evict me from our home

    We bought this house when we were married and we both live in County where she filed suit to evict myself. But we also have a divorce pending in another county. From what I gather the house is community property and the court she filed suit I believe has no jurisdiction based on those facts. She has also stolen my truck so I tried filing a suit against her in divorce county but can't file a civil suit due to truck being community property. Shouldn't the same go for the house? 

  • Fri, Aug 7 2015 4:46 PM In reply to

    • Gixxertoyz
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    Re: Can spouse start a civil case and evict me from our home

    And no she does not live in same house. She left months ago 

  • Fri, Aug 7 2015 5:40 PM In reply to

    • DOCAR
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    Re: Can spouse start a civil case and evict me from our home

    You have to understand.  You may be 100% right, but unless you properly inform the court, there is no way for the court to know and they only do what they are asked.  They do not research for cases filed in all the other counties in the state, unless you tell them.  PG's suggestion that your attorney file a demurrer is a great one in these circumstances.  It is not a do it yourself project.

  • Sun, Aug 9 2015 1:33 PM In reply to

    Re: Can spouse start a civil case and evict me from our home

    Gixxertoyz:
    we both live in County where she filed suit to evict myself. But we also have a divorce pending in another county.

    It sounds like maybe it's the divorce case that was filed in the wrong court!

    I agree with others here that you need a lawyer ASAP.  When you try to act as your own lawyer, most courts treat you the same as all the actual licensed lawyers and expect you to know everything they know - you are not babysat at all.  And when you mess up, you do NOT get a do-over.

    Start with a divorce attorney.  If your divorce attorney thinks you also need a different type of attorney to handle the eviction suit or anything else that your stbx does, he or she will tell you so.

     

  • Mon, Aug 10 2015 1:54 PM In reply to

    Re: Can spouse start a civil case and evict me from our home

    Gixxertoyz:
    We bought this house when we were married and we both live in County where she filed suit to evict myself. But we also have a divorce pending in another county.

    Why did you or she file divorce in a county other than the county where you both live?

     

    Gixxertoyz:
    From what I gather the house is community property and the court she filed suit I believe has no jurisdiction based on those facts.

    Whether or not the court has jursisdiction has nothing to do with whether the house is community or separate property.

     

    Gixxertoyz:
    She has also stolen my truck so I tried filing a suit against her in divorce county but can't file a civil suit due to truck being community property.

    Of course you can file a suit, and I don't know why you think otherwise.  However, it wouldn't be proper to do so because these are issues reserved for the divorce court.

     

    Gixxertoyz:
    Shouldn't the same go for the house?

    It does.  As I said in my prior response talk with your attorney about a demurrer.

  • Mon, Oct 31 2016 7:23 AM In reply to

    Re: Can spouse start a civil case and evict me from our home

    NO.

     

    The easiest way to do this is file a motion for equity in comunity property. In this motion you claim she ousted you from the property and is preventing you from your enjyment of your property. You are both considered joint teneants in common and therefore she cannot exclude you from the property. In this same motion you also claim for rent and mortgage payment reimbursements as she is not allowing you to live there. Be sure and send her rent notices, late notices of not paying rent and notices she isn't paying the mortgage. She is on Obligor to the mortgage note and the banks do not care about your marriage as that has nothing to do with a creditor.

  • Mon, Oct 31 2016 8:19 AM In reply to

    • DOCAR
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    Re: Can spouse start a civil case and evict me from our home

    Interesting response to an over year old post. There is no such motion in california in an unlawful detainer action for equity in community property.  Unlawful detainer is a summary proceeding that 1) ended long ago and 2) only limited filings are permitted.  BTW, community property laws in Texas are not the same as in California. 

  • Tue, Nov 1 2016 8:26 AM In reply to

    Re: Can spouse start a civil case and evict me from our home

    Then just change your motions caption to "Constructive Ousting, Constructive Trust and Breach of Contract"

     

     

  • Tue, Nov 1 2016 9:39 AM In reply to

    Re: Can spouse start a civil case and evict me from our home

    Again, this thread has been dormant for well over a year.

  • Tue, Nov 1 2016 9:44 AM In reply to

    • DOCAR
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    • Joined on Sat, Dec 9 2000
    • NV
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    Re: Can spouse start a civil case and evict me from our home

    Again, there is no such pleading in an unlawful detainer action in California. Besides as we have said, this post is over 1 year old, and the case would be long over.

  • Tue, Nov 1 2016 4:23 PM In reply to

    • Gixxertoyz
      Consumer
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    • CA
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    Re: Can spouse start a civil case and evict me from our home

    Update message.... she lost the unlawful detainer because judge found grounds for dismissal due to it being community property. She tried to say I was there against her wishes but yet she moved out. She said it was a incurable situation or something like that. Anyways she lost and I'm still fighting in divorce court  with her. It's been ongoing since 2013. Thanks for all your replies!

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