October 2006

Monthly Archive

Does Helping to Pay for Property Not in Your Name Entitle you to any Legal Rights?

Summary

My son-in-law and his uncle inherited a peice of land with a mobile home on it, my daughter who has been married to him helped him payoff his uncle for the land recently. My son-in-law actually took her end of year bonus (this year 2006)and paid his uncle off so that the land would be all his but with them divorcing we don’t know if my daughter has any legal right to the land since it was left to my son-in-law.

Dear Esq. is not intended as direct personal legal advice. For direct personal legal advice regarding your own state and situation you should consult a local attorney. → You should not and may not rely on anything on this website as legal advice.

“My son-in-law and his uncle inherited a peice of land with a mobile home on it in Pennsylvania, my daughter who has been married to him for 10 years helped him payoff his uncle for the land recently and now he doesn’t love her anymore and making her life miserable and a divorce is what is coming in the next few months. What happens to the land and mobile home on the land inwhich they are living in with 2 children? My daughter and 2 grandkids will be moving in with us due to he won’t leave the mobile. My son-in-law hasn’t had a fulltime job for 3 years and my daughter has been the major income provider and also provides the family health insurance and pays most of the bills. My son-in-law actually took her end of year bonus (this year 2006)and paid his uncle off so that the land would be all his but with them divorcing we don’t know if my daughter has any legal right to the land since it was left to my son-in-law. and his uncle till his uncle was paid off. They were renting the mobile out and splitting the rent between my son-in-law and his uncle before my son-in-law brought his uncles share of the land and moved my daughter and grandkids into the mobile home. His uncle who willed the land and mobile to my son-in-law passed away after they were married. I believe the deed is in my son-in-laws name also. We never expected this to happen to them and there were no signs of any trouble till he got the land all to himself…no-one really knows what is happening to him and no-one expected this but the mental abuse he is putting my daughter through is just too much for her to handle so if you could just answer me as to if she helped to payoff his uncle”s share of the inherited land does she have any legal right to this land? We live in Pennsylvania.”

Pennsylvania is an equitable distribution state, so the Court will divide assets equitably (fairly). The land and improvements your soon-to-be-ex-son-in-law inherited started out as his separate property. However some of it was purchased with marital property (the bonus for the uncle’s interest). The land and improvements will be of mixed character - some of it marital property and some of it non-marital property. So your daughter would likely have some interest in the land based on the amount of marital property that went into buying out the uncle’s portion.


Michael Durgavich is an accomplished attorney and mediator. Maintaining a general practice in the San Jose, California area, Mr. Durgavich specializes in family law, bankruptcy, and alternative dispute resolution. Mr. Durgavich can be reached through his website at http://www.MichaelDurgavich.com. Contact This Author

State laws vary, and the above is intended as general advice, and not direct legal advice regarding any one particular situation in any one state. For direct personal legal advice related to your own situation you should consult an attorney familiar with the laws of your state and with your situation.

 

Can a Step Parent Gain Custody Over a Biological Parent?

I have a 5 year old, my husband (stepfather) has been in her life since 14months old. I am terrified that if something were to happen to me, that our child would go to her biological father, who does pay minimal support and maybe sees her once a month for 4-5 hours.

Dear Esq. is not intended as direct personal legal advice. For direct personal legal advice regarding your own state and situation you should consult a local attorney. → You should not and may not rely on anything on this website as legal advice.

“Does a step parent have any legal rights over a step child? I have a 5 year old, my husband (stepfather) has been in her life since 14months old. I am terrified that if something were to happen to me, that our child would go to her biological father, who does pay minimal support and maybe sees her once a month for 4-5 hours. My fear is that she would be taken out of her emotionally and financially stable life that her stepfather provides. I honestly do not believe that her biological father could provide a stable life for her, he is single, has had quite a past criminally, hasn’t had a drivers license for 7years, and is just not emotionally able to care for her the way her stepfather does. Is there any kind of legal paper I can file, to state my wishes, to make it harder for the biological father to get custody, in the case of my death?”

Biological father’s right will be superior to stepfather’s rights shoud anything happen to you unless in a guardianship proceedig it was shown by “clear and convincing evidence” that custody with biological father would be detrimental to the child.

Here’s California Family Code section 3041: “(a) Before making an order granting custody to a person or persons other than a parent, over the objection of a parent, the court shall make a finding that granting custody to a parent would be detrimental to the child and that granting custody to the nonparent is required to serve the best interest of the child. Allegations that parental custody would be detrimental to the child, other than a statement of that ultimate fact, shall not appear in the pleadings. The court may, in its discretion, exclude the public from the hearing on this issue. (b) Subject to subdivision (d), a finding that parental custody would be detrimental to the child shall be supported by clear and convincing evidence. (c) As used in this section, “detriment to the child” includes the harm of removal from a stable placement of a child with a person who has assumed, on a day-to-day basis, the role of his or her parent, fulfilling both the child’s physical needs and the child’s psychological needs for care and affection, and who has assumed that role for a substantial period of time. A finding of detriment does not require any finding of unfitness of the parents. (d) Notwithstanding subdivision (b), if the court finds by a preponderance of the evidence that the person to whom custody may be given is a person described in subdivision (c), this finding shall constitute a finding that the custody is in the best interest of the child and that parental custody would be detrimental to the child absent a showing by a preponderance of the evidence to the contrary.”

If your husband wants to step up and adopt, and take current financial responsibility and work with biological father to terminate parental rights and responsibilities that would be another story. I am not suggesting that, but that is the only realistic way I can think of to put your husband in superior custodial position to a biological father who is paying his court-ordered support and exercising visitation (other than the detriment bit in FC3041) should anything happen to you.


Michael Durgavich is an accomplished attorney and mediator. Maintaining a general practice in the San Jose, California area, Mr. Durgavich specializes in family law, bankruptcy, and alternative dispute resolution. Mr. Durgavich can be reached through his website at http://www.MichaelDurgavich.com. Contact This Author

State laws vary, and the above is intended as general advice, and not direct legal advice regarding any one particular situation in any one state. For direct personal legal advice related to your own situation you should consult an attorney familiar with the laws of your state and with your situation.