third party in divorce

You, Your Spouse, and…. (3rd Parties Joined to Divorce Actions)

Most people are aware that in Divorce or Domestic Partnership Dissolution, certain employee benefit plans can be joined to the action to ensure that retirement accounts are divided prior to the completion of the case. However, there are additional ‘joinder provisions’ in the Family Code that provide for ‘interested parties’ to be joined to a case in certain situations. While not commonly utilized, joinder provisions can be crucial to protecting rights and/or limiting a spouse’s exposure in divorce. Once joined, the third person effectively becomes a party to the case.

You, Your Spouse, and…..

When might a party have a recognizable interest in a marital action?

Interest claimed in marital property: If third persons hold title to or otherwise claim an interest in real or personal property that is subject to disposition in the proceeding, the court may join such persons to the action. The court may also join a third party if they are necessary to the enforcement of an issue. Examples? (1) Say Husband has an affair during the marriage and lavishes his girlfriend with gifts paid for with Wife (or Husband’s) earnings during the marriage. The wife might seek to join the girlfriend in the action. (2) Wife and her business partner own 30% of a corporation. That 30% is community property and the corporation may need to be joined to the action to ensure its interests are protected and/or Husband receives his equity share in the asset.

When deciding whether or not the court will join the party(ies), the court considers the following factors: (1) whether it would be appropriate to determine a particular issue in the proceeding and (2) whether the party to be joined is indispensable to a determination of the issue or necessary to the enforcement of any judgment rendered on that issue. Cal Rules of Ct 5.24(e)(2). Assuming the Judge joins the person(s), the court has the power to decide the rights of anyone who claims an interest.

The claim of custody or visitation rights over a child: Although the court prefers awarding custody of a minor child to his/her parents, the court may (in limited circumstances) award custody or visitation rights to a third party in a marital action (such as a grandparent or sibling). Either parent or a third party may apply for a joinder. If the court ‘discovers’ that a third party has or claims custody, control, or visitation rights with respect to the child, the court must join that party to the action. Example? A third party who has taken on the essential role of a parent may have a basis for joinder in a family law action.

The person served with a restraining order: Property restraints (like restraining a person from transferring, concealing or disposing of real or personal property) may sometimes be directed to nonparties. Example? A trustee of a trust that contains a property that may be owned by either or both spouses may be restrained from distributing the property in that trust until the court determines the parties’ respective interests in the trust corpus. The person who is sought to be restrained may contest the restraint at a court hearing in the family law proceeding without actually being joined as a party. However, if the order involves a substantial right of the restrained party that should only be determined after trial (a full evidentiary hearing), a joinder will likely be necessary to protect that person’s rights.

Joinders are rare in Family Law cases but are sometimes very important for protecting the rights of a spouse in a divorce, child custody action, or domestic partnership dissolution.

**Please note that this blog pertains to existing California law and is meant for informational purposes only. Please do not make decisions that will affect your future based on things you’ve read on our website. Instead, consult with a Certified Family Law Specialist, like those of LFLG – or any other you prefer – but be sure to seek out sound legal advice that pertains specifically to the facts of your case.

Schedule your free 15-minute intro callCLICK HERE