In CA: How to evict my wife from my sole and separate property while we are going through divorce and contending property status

Asked almost 3 years ago - Fairfield, CA

We had a legal separation and a judgement was issued 12 years ago stating that all properties from this point on will be separate. I bought a property a few months ago and she signed a quit-claim deed on top of legal separation judgement. She recently filed for divorce contending that legal separation 12 years ago was a fraud and the property is a community property. There was never any commingling of funds throughout 12 years. After filing for divorce, first she got a restraining order against me for no reason and then she broke into the property when it was vacant and took over. Is there any way to have her evicted immediately without waiting for court's decision on the status of our legal separation judgement?

Attorney answers (3)

  1. Nadine Marie Jett

    Contributor Level 16
    Best Answer
    chosen by asker

    Answered . Interesting situation. You do not mention if the Restraining Order is Temporary or if you had a hearing. If you have not yet gone to the hearing, fight this first, in an attempt to regain control of the property. You may need to file your own Restraining Order to get her out. If you lose on the Restraining Order, you will most likely be stuck with the situation until the dissolution issue is resolved.

    Please note that this answer does not constitute legal advice, and should not be relied on, as each situation is fact specific, and it is not possible to evaluate a legal problem without a comprehensive consultation and review of all the facts and court pleadings filed in the case. This answer does not create an attorney-client relationship

  2. Cristin Michelle Lowe


    Contributor Level 13

    Answered . The key will be in your restraining orders--if the orders are silent as to who has temporary exclusive use of the property, since she does not own the property, I don't see why you wouldn't be able to evict her.

    That being said, you have an obviously complicated situation and need to address several other issues immediately:

    1) You need to respond to the divorce petition within 30 days after service;

    2) If the restraining order is temporary and you have an upcoming hearing date, you need to respond to the request;

    3) You need to fight setting aside the legal separation judgment. She has a certain window of time to allege fraud, but you definitely don't want to take any chances that it would be set aside.

    The reason for addressing these issues now, rather than later, is to set yourself up for success with getting your property back.

    Good luck!

  3. James Louis Miller


    Contributor Level 16

    Answered . I agree with my colleague. Did you attend a hearing on the restraining order? If not you need to deal with that first. You can also file your own restraining order to get your ex out of your house. (see Family Code 6200 - 6409.

    Contact an attorney in your area for assitance

    Note this answer does not constitute legal advice, and should not be relied on. Each situation is fact specific... more

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