Three’s a Crowd – Navigating a Third-Party

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When you married, you and your spouse planned on a lifetime of just the two of you—and perhaps children.

When it doesn’t work out for you as a couple, there is pain and stress in the dissolution process. Without question, divorce is even thornier when there are children.

But in some instances, there is yet another complicating factor: someone outside your marital unit that becomes legally involved in your divorce. A third party with a legal interest or claims in your proceedings may need to be added to the divorce through a process known as joinder.

Joinders are rare and complex and should only be undertaken when necessary.

The California Family Code states that “the only persons permitted to be parties to a proceeding for dissolution, legal separation, or nullity of marriage are the spouses, except as provided in (3), a third party who is joined in the case under rule 5.24, or a local child support agency that intervenes in the case.” (The same rule holds for domestic partnerships.) Code 5.24 grants the court authority to join a third party to a family law proceeding when an interest is claimed.

In typical third-party situations—when at least one spouse believes a third party has an interest at stake, and the court finds it appropriate to involve that third party to determine a particular issue—the third party will be issued a permissive joinder, which gives them a 30-day notice to respond. Sometimes, a third party intervenes, seeking the court’s permission to join the proceedings to assert or protect their interest in an asset, property, or custody dispute. There are a few situations in which a joinder is mandatory.

Although each case is different and involves unique and nuanced circumstances, there are two primary areas in which a third party may have a vested interest in a divorce: asset division and child custody. A third party may have a claim to marital property subject to division in the divorce.

Here are some common examples:

Businesses: Suppose one spouse owns a business 50/50 with a partner. The business and partner may need to be a third party in the divorce to a) protect the interests of the business/partner and b) ensure that the non-business-owning spouse receives their fair share of community property. Such scenarios are common in high-net-worth divorces.

Property: If a married couple bought a family home together, but one spouse’s parents gave a substantial sum of money toward the purchase, the parents may have a claim toward a portion of the home value and therefore be added as a third party in the divorce.

Typically, a jointly owned property is an honest arrangement among friends. However, it’s essential to be aware that in some instances, one spouse may attempt to use this type of joint property to shield assets in a divorce. Another example would be a divorcing couple that owns a vacation property with another couple; the other couple may need to be a third party in the divorce if all jointly hold the property.

In cases where the division of an employee benefit plan is in dispute, the plan must be joined as a third party so the court can issue an order.

Trusts: A couple may find themselves in a dispute over trust assets (depending on the type of trust). Suppose, for example, there is an irrevocable trust in which neither party in the divorce is the trustee, but one party alleges that the trust assets or income are marital property subject to community property laws; the legal trustee of that trust may need to be added as a third party to resolve the issue in court.

Child Custody: Custody, visitation, and support matters are complex. In typical divorce cases, a married couple is presumed to be the parents of their child, and the court prefers to award custody to the parents. However, in unusual circumstances, the court may award custody/visitation rights to a third party with legal standing who has been added to the case through a mandatory joinder. For example:

  • If a close relative or grandparent has been the child’s primary physical custodian for several years before the divorce and petitions for custody, the court must add them as a third party.
  • Or suppose the wife had an affair and became pregnant by a man other than her husband. After paternity is confirmed through a DNA test, the biological father will be joined to the case as a third party so the court can settle custody and support.

Third-party interests can create significant challenges in your marital dissolution process. The veteran family law attorneys at SFLG specialize in complex property division and custody cases. We can help you navigate your unique circumstances to achieve a favorable outcome.

By Debra Schoenberg


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