Lawyer Richard Marcus

IS YOUR HOUSE COMMUNITY PROPERTY EVEN THOUGH THE DEED SAYS IT BELONGS TO YOUR SPOUSE AS HIS OR HER SEPARATE PROPERTY?-by Richard A. Marcus? A situation occurring frequently in family law cases is where after the parties are married they decide to put the family residence in one spouse’s name for the purpose of refinancing with the intent of getting a better interest rate based upon one spouse’s bad credit. The parties eventually split up and the question in the dissolution pr...oceeding is whether the house is community property despite the fact that the deed says the house belongs to one spouse as his or her separate property. The legal issue presented in this fact pattern is a conflict between the title presumption created by the Evidence Code which essentially says that title is as title says absent clear and convincing evidence to the contrary and the presumption in family law cases that all property acquired during the marriage is community property. Case law basically says that where these dueling presumptions exist, the later presumption trumps the former presumption. Thus, the spouse advantaged by the transaction (the person whose name is on the deed) has the burden of demonstrating that the property was put solely in his or her name through no undue influence. This of course is a presumption which may be rebutted by the advantaged spouse. Absent settlement, this is an issue which has to be resolved by the family court judge at trial. If one party freely and voluntarily quit-claims the property to the other to with the purpose and intent of obtaining a lower interest rate (which arguably benefits the community), courts have determined that the property is nevertheless a spouse’s separate property. In perhaps over simplistic words, there can be no undue influence if you know what you are doing and why you are doing it. Two recent cases however, have held that a spouse cannot overcome the presumption of undue influence despite the fact that he or she freely and voluntarily agrees to quitclaim the property to obtain a lower interest rate where one spouse makes an oral promise to the other that the property will be deeded back after the refinancing, but the property is never deeded back. One of these cases will shortly be the subject of a Petition for Supreme Court of California Review. It is my belief that a conflict will continue to exist in the case law unless and until the Supreme Court of California resolves the issue. For all of your family law needs, contact the Law Offices of Richard A. Marcus (661) 257-8877.

When A Picture Is Worth More Than A Thousand Words- By Richard A. Marcus, Esq. I have two daughters. One is in middle school and the other is in elementary school. When my older daughter started middle school, I attended an orientation session of sorts for new parents. There we were warned about the potential hazards of middle school. One such hazard to be avoided starts with the child taking an inappropriate picture of himself or herself and sending it to anyone. We were war...ned of the obvious: once the genie is out of the bottle, it cannot be put back in. The message was well received. Prior to attending the orientation, my wife and I had instilled the dangers of such photographs to both of our children. We stressed that a picture should never be taken in the first place if the photo could cause embarrassment if it would up in anyone else’s hands. The headlines are rife with the tragedy of celebrities who have had their intimate photos stolen and distributed. I am sorry but it is hard to feel sorry for anyone who has put themselves in such a situation for the simple reason that intimate photos have no place on cell phones. And if you are not living to live with the risk, don’t take the photo. Unfortunately, celebrities are not the only ones making these stupid mistakes. Family law litigants do it too. Sometimes it is in the form of one spouse sending intimate photos of themselves to the other spouse. Sometimes it is one spouse sending intimate photos of someone else to the other spouse. Sometimes it is an intimate photo of one spouse with someone else which ultimately finds itself into the hands of the other spouse. If ten year old children are taught about the dangers of such reckless conduct, why do we keep hearing about adults making the same mistakes? After all, these kinds of pictures are worth much more than a thousand words, especially in family law proceedings. For all of your family law and business law needs, contact the Law Offices of Richard A. Marcus, Esq. (661) 257-8877. This e-mail message contains information that may be confidential and privileged. Unless you are the addressee or authorized to receive messages for the addressee, you may not use, copy, or disclose this message or any information contained in it to anyone. If you have received this message in error, please advised the sender by reply e-mail and delete this message. Nothing in this message should be interpreted as a digital or electronic signature that can be used to authenticate a contract or other legal document. Richard A. Marcus, Esq. Law Offices of Richard A. Marcus 28494 Westinghouse Place, Suite 204 Valencia, CA 91355 (661) 257-8877 fax: (661) 775-9423

New articles will be posted frequently on many subjects that may be of interest to you.

NEW RENTERS BEWARE: THE MONTH TO MONTH TENANCY-by Richard Marcus, Esq. With the condition of the housing market and over all state of the economy, more and more people are renting homes and apartments. A number of them are former home owners, who may have never rented as an occupant before. The month to month tenancy is a great concept for tenants who do not want to be locked into a long term lease. They want to be able to leave when it is convenient for them. Before the coll...apse of our economy, landlords were content with such an arrangement and were happy to fill their vacancies, even if only for a short term basis. As long as a tenant paid the rent timely, a landlord was happy with the tenant staying as long as the tenant wanted. Well times have change. People fleeing their homes because of short sales and foreclosures are becoming the new renters. And now it is the landlord and not the tenant who is demanding a month to month tenancy. If you find yourself in such a situation as a new renter, you may have to leave a lot sooner than you think. With more and more frequency I am receiving calls from clients who find themselves in this precise predicament after learning that the home they are renting is in foreclosure and that the landlord isn’t paying his or her own mortgage. Because of the nature of a month to month tenancy, the landlord has the right (just as you do) to serve a 30 day notice. If you as a renter are presented with an offer by a landlord to enter into a month to month tenancy, it is important for you to find out why the landlord is making such an offer. I suggest that you ask the landlord whether the home you are renting is in foreclosure and whether the landlord is current with his or her mortgage obligations. Better yet, the landlord should make this representation in writing. The last thing that you want to be involved in after losing your own home is being evicted from your new rental because your landlord is not making his mortgage payments. As I said at the outset, month to month renter, beware. For all of your business, personal and family law needs- contact the Law Offices of Richard A. Marcus (661) 257-8877.

RICHARD A. MARCUS is an aggressive trial attorney who possesses an attractive blend of professionalism, warmth and humanity.

The Marcus Law Firm is exhibiting at the VIA show at the Hyatt in Valencia. If you are in the neighborhood please stop by.