Written agreements for unmarried couples in California

Written agreements for unmarried couples in California are the topic of this blog post.

Any unmarried couples in California that are living together should consider the use of a written agreement detailing their rights and obligations to each other.  This type of written agreement is known by several names including a living together agreement and a Cohabitation Agreement.

The main reason for unmarried couples to consider using a living together agreement is the simple fact that most unmarried couples that start living together and set up a household generally will have their own separate expectations regarding their finances and what their obligations to each other are, or will be.  

The basic problem is that most unmarried couples exhibit a lack of communication as to their expectations and that can lead to serious trouble down the road for the simple reason that one partner may expect that each partner will retain their own separate property, and that neither of them will be obligated to support the other partner in the event that they end their relationship. However the other partner may have exactly the opposite expectation. If the couple ends their relationship, these conflicting expectations can lead to tremendous distress and unhappiness in the lives of both partners.

Consider a hypothetical situation where one partner is much wealthier than the other partner, and the relationship breaks up. The wealthier partner may be served with a lawsuit by the other partner for what is commonly known as "palimony", with the other partner claiming that the wealthier partner promised that they would support him or her for life, and/or that all property acquired during the relationship would belong to both partners equally in the event that the relationship ended.

If there is no written agreement governing their rights and obligations, the wealthier partner could be found legally obligated and ordered by a court to divide their property with and/or pay support to the other partner, even if a desire to avoid these obligations was the very reason they did not marry their partner in the first place.

This situation is both quite common and particularly relevant in the State of California which is one of the most litigious States in the United States and is also where the term “palimony” was first used in reference to the landmark California Supreme Court case of Marvin v. Marvin (1976) 18 Cal.3d 660, 674.

To use another common example, one partner may have quit their job to make a home for their partner, who in return promised that they would always be "taken care of," only to find when they break up that all of the assets acquired "together" are in the other partner's name, and the other partner is denying that he or she ever made any promises to their partner.

In the State of California as well as some other States, the courts do generally enforce most agreements between unmarried cohabitants regarding their property. These agreements fall into three categories: implied, oral, and written. Written agreements that are signed by both parties, while they may not be perfect are still much more effective compared to oral and implied agreements in terms of providing the parties with some measure of certainty. Having a written document helps insure that the partners and not a future jury will determine exactly what the terms of the agreement are. They also provide each partner with an opportunity to communicate and clarify their expectations of each other.

To avoid any misunderstandings, both partners should discuss their expectations regarding financial matters before they move in together. When they do, they may find out that the two of them have very different understandings as to what their understanding really is.

Once both partners have talked through the issues and reached a mutual understanding, they should put that agreement in writing.

Attorneys or parties in California who would like to view a portion of a 12 page sample Cohabitation Agreement sold by the author can see below. 

Sample Cohabitation Agreement by Stan Burman

 
The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.

You can view portions of over 300 sample legal documents for California and Federal litigation at http://www.scribd.com/LegalDocsPro

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://freeweeklylegalnewsletter.gr8.com/ for more information.”

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

Over 300 sample legal documents for sale

Over 300 sample legal documents for sale from LegalDocsPro

Sample legal documents for California and Federal litigation available for sale. Over 300 sample documents are available. All documents are in Microsoft Word format and include answers, complaints, demurrers, motions to dismiss, motions to quash, motions to strike, motions to compel, interrogatories, requests for admission and more! The author of these sample documents is Stan Burman, an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995.

Homeowner rights during foreclosure in California

Homeowner rights during foreclosure in California are the topic of this blog post.   

Even though the great majority of foreclosures in California are non-judicial, California homeowner’s do have certain rights which were greatly strengthened when the California legislature passed and the Governor signed the legislation that is commonly known as The Homeowner’s Bill of Rights.

The California statutes that comprise the HBOR are based at least to some extent on the National Mortgage Servicing Settlement that was entered into between the attorney’s generals of the various states and the five largest mortgage servicers in February of 2012. The HBOR became effective on January 1, 2013 and includes sunset provisions for certain statute that will expire on  January 1, 2018 although many of the obligations imposed on mortgage servicers will continue beyond that date.

The HBOR has resulted in some major changes in the non-judicial process in California in that it provides important protections to California homeowners by imposing new requirements on mortgage servicers. The changes in the foreclosure process in California required by the HBOR statutes are listed below.

The first and most important change is that the HBOR requires new notices to borrowers under Civil Code section 2923.55, which both expands the existing pre-foreclosure notice requirements and prohibits a servicer from recording a notice of default until it has informed the borrower of their right to request copies of documents proving the mortgage servicer’s right to foreclose and that the borrower may be entitled to protections under the Servicemembers’ Civil Relief Act.  In addition Civil Code § 2924(a)(5) requires a written notice to the borrower after the postponement of a foreclosure sale for more than 10 business days although a failure to comply is not grounds to invalidate an otherwise valid sale. 

The HBOR also imposes a ban on the widely despised practice known as “dual tracking” as mortgage servicers in California must now place a pending foreclosure on hold and not proceed any further while a “complete” first lien loan modification application is pending, on appeal, or while the borrower is in compliance with an approved loan modification agreement.  A loan modification application is “complete” when the borrower has submitted all required documents “within the reasonable timeframes” set by the servicer.  See Civil Code §§ 2923.6, 2924.11, 2924.18.

Any servicer that services mortgages in California that conduct more than 175 foreclosures per year in California are required to provide a single point of contact by assigning a single individual or team of individuals with knowledge of the loan and status of the possible loan modification and must be available to the borrower as to such things as the loan status, foreclosure prevention options available and the coordination of documentation. A decision maker must also be available to a borrower.   These provisions are found in Civil Code § 2923.7.

Another important change is the provision in the HBOR that allows a homeowner to require any mortgage servicer to document their right to foreclose.  The Act also clearly states that an entity cannot record a notice of default or otherwise initiate the foreclosure process unless it the holder of the beneficial interest under the deed of trust, the original or substituted trustee, or the designated agent of the holder of the beneficial interest.  See Civil Code § 2924(a)(6).

The widespread practice known as “robo-signing” is now banned as representatives of a financial institution or servicer may not process foreclosure documents without verifying them for accuracy.  See Civil Code § 2925.17.

Mortgage servicers are now required to have loss mitigation procedures under the HBOR as it states that unless a borrower has previously exhausted the first lien loan modification process, within five business days of recording a notice of default, servicers that conduct more than 175 foreclosures per year in California must send a written notice advising the borrower regarding foreclosure prevention alternatives pursuant to Civil Code § 2924.9.  Receipt of an application for loan modification or any other documents must be acknowledged within five business days pursuant to Civil Code § 2924.10.  If a loan modification is denied, the servicer must provide information regarding the time to in which to appeal the denial and any reason(s) for the denial pursuant to Civil Code § 2923.6.

California homeowner’s that may be in foreclosure proceedings or are seriously delinquent on their mortgage payments will find the HBOR provides some very welcome relief from an otherwise confusing and frustrating non-judicial foreclosure process.

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.

If you are in need of assistance with any California or Federal litigation matters including foreclosure defense, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

 


*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit Subscribe to FREE weekly legal newsletter for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

You can view sample legal document packages for sale by visiting http://www.legaldocspro.net

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

What can I do about an asset that was not listed in my divorce decree or judgment in California

Assets that were not listed in any divorce decree or judgment in California

Sometime parties in California that have already had a dissolution (divorce) judgment in California  discover an omitted asset many weeks or months later and wonder what their options are.  This blog post discusses the issue of assets or liabilities that were not listed in any divorce decree or judgment in California. These are what is known as omitted assets.

A party can request that the court adjudicate any assets or liabilities that were not mentioned in the judgment of divorce as those assets were not previously adjudicated in the judgment of dissolution of marriage and in most cases were never mentioned in any documents filed with the court or any court orders. The request is filed under the provisions of Family Code section 2556. by the filing of a notice of motion or request for order. 

A request filed under Family Code section 2556 is most often filed in divorce cases but can also be filed in a legal separation or nullity case in California.

If you use this request in the right situations it is very powerful as there are no time limitation specified in the statute although in my personal opinion you should file the motion as soon as possible after discovering the omitted asset or liability is a good idea. I also want to point out that the court will most likely deny any request if you have already filed another motion or request with the court under another code section or legal theory that mentions the omitted asset and the court has denied that request

Family Code § 2556 states that,

“In a proceeding for dissolution of marriage, for nullity of marriage, or for legal separation of the parties, the court has continuing jurisdiction to award community estate assets or community estate liabilities to the parties that have not been previously adjudicated by a judgment in the proceeding. A party may file a postjudgment motion or order to show cause in the proceeding in order to obtain adjudication of any community estate asset or liability omitted or not adjudicated by the judgment. In these cases, the court shall equally divide the omitted or unadjudicated community estate asset or liability, unless the court finds upon good cause shown that the interests of justice require an unequal division of the asset or liability.”

Before this code section was enacted into California law the courts allowed a former spouse to file a separate partition action to divide any assets that were omitted from a divorce judgment. 

Any community estate asset or liability that was not mentioned in the judgment should most likely be considered an omitted asset.

Both the California Supreme Court and the California Courts of Appeal have stated that the doctrine of res judicata does not prevent the division of community property assets that were not adjudicated in any prior judgment.

The California Supreme Court has also stated that the entitlement of a spouse to a share of any community property arises at the time that the property is acquired and any property which is not mentioned in the judgment or any of the pleadings is considered unadjudicated by any judgment and is therefore subject to further legal proceedings as the former spouses are considered tenants in common until the asset can be adjudicated.

The moving party should make a sufficient showing that the omitted asset or liability is in fact a community estate asset or liability as the asset was acquired or the liability was incurred during the marriage.  The California Supreme Court has stated that any property acquired by purchase during the marriage is presumed to be community property.

Attorneys or parties in California that would like to view a portion of a sample 11 page motion to adjudicate an omitted asset under Family Code section 2556 containing brief instructions, a memorandum of points and authorities and sample declaration sold by the author can use the link below. 

   Sample Motion to Adjudicate Omitted Asset Under Family Code Section 2556 by Stan Burman

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.

If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit Subscribe to FREE weekly legal newsletter for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

You can view sample legal document packages for sale by visiting http://www.legaldocspro.net

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

How can I fight my eviction in California

Sanctions award under California Family Code section 271

http://www.legaldocspro.com/blog/request-for-family-code-section-271-sanctions-in-california/

Demanding release of mechanic's lien in California

Demanding the release of a mechanic’s lien in California is the topic of this blog post.  

A California demand for release of mechanic’s lien is sent pursuant to the provisions of Civil Code section 8102. The demand letter must be served on the party that recorded the lien at least 10 days before any petition for release of mechanic’s lien is filed.

The party demanding the release of the mechanic’s lien should wait until at least 90 days have passed since the date that the mechanic’s lien was recorded with the county recorder. The demand letter should only be sent once at least 90 days have passed since the date that the mechanic’s lien in situations where  the person or entity that recorded the lien has not filed any complaint to foreclose on the mechanic’s lien.  The reason for waiting at least 90 days is that Civil Code § 8460(a) states that the mechanics lien expires and is unenforceable after 90 days unless the recording party has filed a complaint to foreclose on the mechanic’s lien.

The demand letter should list the date that the mechanic’s lien was recorded along with the complete document number and the county where the mechanic’s lien was recorded. It should also list the complete street address and the full legal description of the real property including the assessor’s parcel number.

The demand should be served by personal delivery, certified or registered mail with return receipt requested, express mail or overnight delivery using Federal Express or other overnight delivery company pursuant to Civil Code § 8110.

The letter should demand that the lien be released within ten (10) calendar days from the date that the notice is served or the demanding party will file a petition with the Court for an order releasing the mechanics lien and ordering them to pay reasonable attorney’s fees and costs involved in filing the petition.

I need to emphasize that if the demand letter does not contain the required information or is not served correctly that can result in the court denying any petition for release of the mechanic’s lien and ordering the party that filed the petition to pay for the attorney’s fees and costs of the prevailing party.

Attorneys or parties in California that would like to view a sample demand letter for release of mechanic’s lien created by the author available for free download can see below.

   Sample Mechanics Lien Release Demand Letter for California by Stan Burman

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit Subscribe to FREE weekly legal newsletter for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

You can view sample legal document packages for sale by visiting http://www.legaldocspro.net

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.