ExpertLaw.com Forums

At What Point Can You Change the Locks on the Marital Home

Printable View

Show 40 post(s) from this thread on one page
Page 1 of 3 1 2 3 Next LastLast
  • 12-29-2017, 10:04 AM
    WhoDonnit
    At What Point Can You Change the Locks on the Marital Home
    My question involves a marriage in the state of: California

    Hi and thanks in advance for any advice or comments. December 1st my wife of 7&1/2 years announced that she no longer wanted to be married. She requested a quick and civil parting. I've been in the house for 32 years and she stated that she wants nothing to do with "your house". Since we agreed on pretty much everything I used a highly recommended paralegal to get the paperwork started. Papers were drawn up, filed and she was served on the 6th. By the 8th we were working on our property declarations, etc. She doesn't even want to spend the money to file a response. We sent the rest of the paperwork off to the paralegal to draw up the agreement and it should be filed next week. So far, so good....

    One day after making her announcement, she moved out to her mother's house. She has been out now for nearly a month and has filed a change of address with the post office. She texts me each morning to say either she is coming to get some of her stuff or that she can't make it. She is moving out a trunk-load at a time. It is becoming very difficult as it seems that she often times plans to come and then cancels at the last minute or says I will come after work. I am waiting around to see if she is coming or not. At this rate it is going to take 9 months for her to pick up her belongings. She is supposed to rent a U-Haul and hire a couple of guys to move furniture but when I ask her when she says "I want to move all of the small stuff first".

    I guess my question is two-part: Can I change the lock on the front door to make sure she isn't there taking things when I am not there? Can I go out and rent a storage unit for two months, move all of her stuff and give her the key? I am doing my best to be cooperative and peaceful but I think she is intentionally taking advantage of my time.....
  • 12-29-2017, 10:10 AM
    flyingron
    Re: At What Point Can I Change Locks
    Absent acquiescence with her on either of those options, I would recommend you not do it.

    If she won't agree to that, you need to do is run all this by your attorney. More than a "paralegal" or an internet bulletin board is required in that case.
  • 12-29-2017, 10:41 AM
    budwad
    Re: At What Point Can I Change Locks
    It's your house, she has moved out, and you are in the process of divorce. There is no reason that you can't change your locks so that she has to coordinate with you to pick up her property. Just make it reasonable.
  • 12-29-2017, 11:10 AM
    flyingron
    Re: At What Point Can I Change Locks
    And there's no reason she can't call a locksmith or otherwise break in. The house is her property as well. She has perfectly valid rights to enter the community property AT WILL until the divorce is approved or you have otherwise gotten exclusivity granted by the court. Budwad's advice is counter to proper legal advice.

    Again, I recommend you get COMPETENT legal advice before either changing the locks or removing community or the spouse's personal property.
  • 12-29-2017, 11:16 AM
    budwad
    Re: At What Point Can I Change Locks
    Quote:

    Quoting flyingron
    View Post
    And there's no reason she can't call a locksmith or otherwise break in. The house is her property as well. She has perfectly valid rights to enter the community property AT WILL until the divorce is approved or you have otherwise gotten exclusivity granted by the court. Budwad's advice is counter to proper legal advice. .

    What in OP's post says that the house is community property? She moved out and he owned the house before the marriage.

    Quote:

    I've been in the house for 32 years and she stated that she wants nothing to do with "your house".
    Quote:

    December 1st my wife of 7&1/2 years announced that she no longer wanted to be married.
  • 12-29-2017, 12:14 PM
    Taxing Matters
    Re: At What Point Can I Change Locks
    Quote:

    Quoting budwad
    View Post
    It's your house, she has moved out, and you are in the process of divorce. There is no reason that you can't change your locks so that she has to coordinate with you to pick up her property. Just make it reasonable.

    It is not that simple. They are not yet divorced. California Family Code (FC) section 753 states: “Notwithstanding Section 752 and except as provided in Article 2 (commencing with Section 2045), Article 3 (commencing with Section 2047), or Article 4 (commencing with Section 2049) of Chapter 4 of Part 1 of Division 6, neither spouse may be excluded from the other's dwelling.” (Bolding added.) Article 2 deals with the situation where a court has entered an ex parte order, in this situation one prohibiting access. (Ex parte, by the way, means something a little different in California than in a lot of other jurisdictions.) Articles 3 and 4 deal with situations in which a court has entered a protective order against one of the spouses. In short, the statute says that in California a person may not prevent his/her spouse from entering his dwelling unless there is some ex parte court order granting one spouse exclusive possession of the home or there is a protective court order against one of the spouses in favor of the other spouse. Note that this right of entry does not turn on whether the dwelling is community property.

    There is however a possible judicial exception:

    By voluntarily leaving the house, giving up his house keys on January 31, 2004, and heeding the directives of T.G. to stay out of the family home, defendant waived his unconditional right to enter the home. By obtaining the house keys voluntarily from defendant, T.G. exerted possessory control over the family home to the exclusion of others, specifically the defendant. (Smith, supra, 142 Cal.App.4th at p. 932, 48 Cal.Rptr.3d 378.) Defendant's subsequent conduct demonstrated that he gave up his right to possessory interest in the house and understood he did not have the right to enter the residence at will.

    People v. Gill, 159 Cal. App. 4th 149, 161, 70 Cal. Rptr. 3d 850, 867 (2008). Thus, if it can be clearly shown that wife has waived her unconditional right to enter the home the OP might be able to exert exclusive possession of the home and bar his wife from reentry. The problem is that this case is a criminal one, not a family law decision and it is not clear how this might play out under a different set of facts in a divorce contest. Thus, given the right of entry given by FC § 753, I agree with flyingron that the OP really ought to consult a family law attorney before changing the locks and denying his wife entry to his home.
  • 12-29-2017, 12:37 PM
    budwad
    Re: At What Point Can I Change Locks
    The problem with lawyers ( and please don't that this the wrong way) is that a consult about changing the locks when there is no indication that there would be a problem with changing the locks is not worth a $500 or $600 bill for an answer when the parties are agreeing and working out the settlement on their own. It would only be a problem if the parties in the divorce are not agreeable on the spouse getting their property.

    Here, the OP says that there is no problem with his/her spouse getting the property. The question is can he/she change the locks so that they have some control about when it happens in light of many scheduled pickups and cancelations.

    I don't think that OP has to consult an attorney to answer that question as long as he/she is willing to cooperate and allowing the spouse to get their property. This is not a lock-out.
  • 12-29-2017, 01:02 PM
    WhoDonnit
    Re: At What Point Can I Change Locks
    I appreciate all of the comments and responses. I had not idea that this would be such an interesting subject. I did search Google for answers before I posted here and the consensus on Google posts was "don't do it". I have a friend that is going through a long and arduous divorce and when he left his wife changed all of the locks and he is afraid to go back. He was trying to tell me that I could change the locks but I think that his attorney told him to stay away just to prevent potential law enforcement action. We are still cordial but it is driving me nuts that she is preventing me from leaving by constantly changing her schedule of "stopping by". This morning she texted me that she wasn't going to make it at lunch time but maybe after work. I replied "I am thinking Tuesday" and she replied "No, after work". So I am afraid to leave.....

    When she does come I am going to ask her to commit to a fixed schedule for next week. Maybe I'll will lead her to believe that I am changing the locks but won't really change them. I will see how receptive she is to a schedule. I believe that she is trying to keep secret her new boyfriend and has only told her mother and doesn't want anybody else to know right now. She also does not want to spend any money, didn't even file a response to the divorce filing as it would cost her $435.00. So maybe she will "go along" with a fixed schedule. Thanks again for all of the advise.
  • 12-29-2017, 01:04 PM
    Highwayman
    Re: At What Point Can I Change Locks
    Since both parties are saving thousands in attorney fees by doing this on their own I would say it's well worth a couple of hundred bucks to get proper legal advice.

    A consultation might be had for free or certainly a more reasonable price than $500-600.

    It would certainly be money well spent - the wife could turn around at any time and makes things unreasonably difficult.
  • 12-29-2017, 01:49 PM
    LegalWriter
    Re: At What Point Can I Change Locks
    Neither of the cases you cited Tax are dispositive or even relevant by any means. They are both criminal cases dealing with a burglary charge which, in CA, simply requires entry with intent to commit theft or a felony. In Smith, the wife had a restraining order and a court order giving her exclusive possession--he entered with the intent to commit several felonies, including trying to kill her. In Gill, the defendant surrendered his keys and then broke into the house where he raped his wife and tried to kill her. The OP has given no indication that his wife has surrendered the keys, only that she expects him to be there when she comes to get stuff. At this point, the property is considered the marital home until the divorce is filed and he lists it as his separate property and she doesn't contest it. At the time the petition is filed, he can also file a ex parte request for exclusive possession pending the divorce being final. THEN, he can change the locks.
Show 40 post(s) from this thread on one page
Page 1 of 3 1 2 3 Next LastLast
All times are GMT -7. The time now is 02:17 PM.
Powered by vBulletin® Version 4.2.4
Copyright © 2023 vBulletin Solutions, Inc. All rights reserved.
Copyright © 2004 - 2018 ExpertLaw.com, All Rights Reserved