Q. I am recently separated, but neither my wife nor I have filed anything
with the Court. I just learned she renewed the lease for a rental property
we own in Joshua Tree, without my consent. I don't want to tie the
property up with a long term lease, given that we will soon divorce and
we may have to sell it. Can she do this?
Eddie, Twentynine Palms, CA
In the absence of a divorce having already been filed, either spouse has
the right - acting alone - to make decisions affecting the management
and control of community property. This rule is codified in
Family Code section 1102. In answer to your question, subsection (a) requires that both spouses
join in executing any instrument by which any leased community estate
real property is rented for a period
exceeding one year. This means that she can execute a lease without your express
consent for one year or less. Section 1102 exists partly to protect the
rights of third parties who do business with one spouse, as with the tenants
of your rental; otherwise, they could not rely on the assumption of uninterrupted
possession because at any time the other spouse (i.e., you) could step
out of the shadows and declare the extension or renewal void despite the
fact the tenant knew nothing about the status of their landlords'
marriage. Despite her
authority to unilaterally re-let the property, however, your wife's conduct must
still meet her
general fiduciary obligation standards per
Family Code section 721 even though no family law case is yet pending.
Once the dissolution is filed, the
Family Code section 2040 "ATROS" spring into existence by operation of law. However, they don't contain
any limiting language concerning leases, although subsec. (a)(2) restrains
"both parties from transferring, encumbering, hypothecating, concealing,
or in any way disposing of any property, real or personal, ..., without
the written consent of the other party or an order of the court, except
in the usual course of business or for the necessities of life,..."
Given the wording of
section 1102, it is likely that unilaterally extending a year's lease will not be
viewed as a violation of the ATRO's. It is certainly something you
might obtain temporary restraining orders to prohibit, before the deed
is done so to speak. But you will have problems getting an order undoing
an already consummated lease extension, because if successful this would
negatively impact the rights of third party renters who are not a party
to your case without due process being afforded to them.
Keep in mind that interspousal fiduciary duties are ongoing, notwithstanding
separation and/or divorce proceedings.
Family Code section 2102(a), (b) expressly provides that the 721 fiduciary duties continue from the date
of separation until each joint asset in question has been actually distributed
or awarded to one or the other of you as part of the final resolution.
Your best remedy therefore, assuming that this lease extension actually
causes you financial or other injury instead of being merely an insult
(we frequently see spouses flexing different muscles as power dances),
is going to be a
721 based claim. For instance, if the re-let is below fair rental value to
her daughter from a former marriage, certainly you have a claim based
upon the wife's self-dealing. If, on the other hand, your wife's
daughter has been living there for the past five years and this is a simple
expression of business as usual, your for damages recovery becomes less
compelling. Spouses who ignore their fiduciary duties tend to act out
on a number of fronts, giving rise to combined claims of repeated misconduct
towards more than one asset or debt. Chasing the other spouse for one
breach of fiduciary duty may be prohibitively expensive in terms of time
and attorney fees but as with all other of life's struggles, there
are tipping points; and often pushing back is the only way to get the
other side to stop it, but then we know how shoving matches too often end.
In all cases where you want to protect your remedies against a financially
abusive spouse as part of your divorce recovery, you want to make your
objections clear and memorialize them as soon as you know you have reason
to object. Silence implies acquiescence, so don't sit on your rights.
At the same time, keep it simple. Rants invariably play into the side's hand.
Author: T.W. Arnold