I've decided to start a new section I will call "Legal Conundrums." These will be fact patterns I or other lawyers I know have had to deal with. I hope that you, gentle readers, will find them interesting. Listening to people's stories and pulling out the relevant legal material and applying it to the correct procedure, is the true essence of legal practice. I love the quote: "There is much here that is true and much that is relevant. Unfortunately, that which is relevant is not true and that which is true is not relevant.
So, fact pattern for the day:
Man and woman are married. Woman and woman's mother tell man that woman owns a piece of property, which is right next to momma's property. Man is a contractor, so he builds them a house on this piece of property. A nice big fancy home. He's a contractor so he doesn't have to borrow any money, and he's only got a 4th grade education, so he never even thinks about who owns the property. Besides, his wife told him she owned it, and they're married so its all good.
Only now, 5 years later, she wants to get a divorce.
And of course, she wants the house.
(Note: Alabama is an "Equitable division" state for marital property.)
It turns out that woman doesn't own the property. Her momma does.
Now, the question is, how do you bring Momma, a non-party, into this Divorce case?
Property (in this case the house) affixed to the land becomes part of the land, so he can't just go in and truck "his" house out of there. If he built it on momma's land, its Momma's house. (and that's a pretty settled bit of case law.)
So far I've come up with: Detrimental reliance, which would work fine to sue momma separately... but may fail because he did no review of the situation and doesn't help in the divorce case.
If woman did own the property but transferred back to momma after the house was built then that could be brought as a fraudulent transfer which would be a necessary ancillary proceeding...
You could do a request for admissions including something about the home and its necessary land being part of the marital estate subject to division by the court...A request for admissions is when one party sends a list of statements to the other party and unless you object to them within 30 days they are deemed admitted.. So surely her lawyer will nix that...
He could get her on tape saying she had done it just to defraud him, but that's criminal (Theft by deception) with a civil edge (suit to recover fraudulently acquired property?) I guess it would effect her culpability in the divorce, but still, the divorce Judge would have no ability (jurisdiction) to issue any order with regards to a non-party's property... And I don't think there is enough other property to make up for the house.
So, when the other lawyer told me that the couple was considering reconciliation, I said that was his best bet: get back together and get his name on the deed. : )
2 comments:
What about constructive and resulting trusts? I'm not sure how that would work, since he's not married to Momma and sheowns the house... but maybe there's something there?
Maybe he could go after Momma for Unjust Enrichment?
Absolutely, both of those are good avenues to get momma into Court, but we wanted to try it all at once so we're trying to join the claims.... MadDog's final, and in my opinion brilliant, idea was cross claim against mother for unjust enrighment/detremental reliance and then do indespensable joinder because the result of the one case would necessarily effect the outcome of the other... luckily our Circuit Judges do both DR and civil stuff so the Judge would have Jurrisdiction... We'll see.
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