Learn how California family courts handle temporary property control orders, mortgage payments, and reimbursement issues during divorce proceedings.
UNDERSTANDING TEMPORARY PROPERTY CONTROL ORDERS IN CALIFORNIA DIVORCE CASES
In California divorce proceedings, disputes often arise over who should pay the mortgage and other carrying costs of a jointly owned home while the case is still pending. The family court routinely issues temporary orders requiring one spouse to contribute only a partial share of the monthly expenses—sometimes just a few hundred dollars—even though the home’s total carrying costs may exceed several thousand dollars.
These interim allocations are not final rulings on ownership or reimbursement. They are designed to preserve the property and maintain fairness under Family Code sections 3800–3802, which authorize judges to issue temporary “property control” orders during a dissolution case.
WHAT IS A PROPERTY CONTROL HEARING?
A property control hearing, usually requested through a Request for Order (RFO), allows the court to determine who has temporary use, possession, and financial responsibility for a home or other marital property.
Unlike a trial, a property control hearing is summary in nature. The judge primarily considers written declarations and exhibits rather than live testimony. The goal is to keep the property preserved—ensuring the mortgage, taxes, insurance, and homeowners association dues are paid—until the court can make final decisions at trial or through settlement.
Under Family Code § 3801(a), the court may determine “the temporary use, possession, and control” of community or jointly owned property, and under § 3802, it may order “one or both parties to make payments or perform acts” necessary to preserve the property.
WHY THE COURT OFTEN ORDERS LESS THAN HALF
Family law judges often order less than a 50-percent contribution for several equitable reasons:
Exclusive Possession and Fair Rental Value
When one spouse has exclusive use of the marital home, the court may offset the fair rental value of that use against the other spouse’s obligation. This principle originates from In re Marriage of Watts (1985) 171 Cal.App.3d 366, where the court held that exclusive post-separation use of a community asset may justify an offset or “Watts charge.”
Preserving Equity and Financial Stability
Judges use their discretion to prevent foreclosure or financial hardship. A smaller interim contribution helps maintain payments while avoiding unreasonable strain on either party.
Limited Evidentiary Record
Because an RFO is not a trial, the evidence presented is often limited to declarations, a few financial statements, and tax documents. As emphasized in In re Marriage of Stallworth (1987) 192 Cal.App.3d 742, family law courts possess broad equitable powers to allocate interim expenses and preserve property until a full evidentiary hearing occurs.
These temporary orders are not findings on ownership or reimbursement. They simply maintain stability during the dissolution process.
THE ROLE OF REIMBURSEMENT AND CREDITS
Once the case proceeds to trial, the court can apply California’s established reimbursement and credit doctrines. The most common include:
• Epstein Reimbursement: In In re Marriage of Epstein (1979) 24 Cal.3d 76, the California Supreme Court held that a spouse who uses separate funds to pay community obligations after separation is generally entitled to reimbursement, absent agreement or contrary order.
• Watts Charges: Watts allows the community to seek compensation for the value of one spouse’s exclusive use of a community asset after separation.
• Moore/Marsden Apportionment: When community funds reduce the principal of a mortgage on a separately owned property, In re Marriage of Moore (1980) 28 Cal.3d 366 and In re Marriage of Marsden (1982) 130 Cal.App.3d 426 establish the formula for dividing appreciation between separate and community interests.
These doctrines are applied only at trial, once the court has full financial evidence and testimony—not at the temporary property control stage.
TEMPORARY ORDERS VS. FINAL PROPERTY DIVISION
It’s crucial to distinguish a temporary property control order from a final property division. The temporary order addresses short-term cash flow and preservation; the final division, made after discovery and trial, determines:
• Ownership characterization (community, separate, or mixed)
• Equity division and reimbursements
• Responsibility for taxes, insurance, and maintenance
• Whether any sale or buyout will occur
Under Stallworth, courts may later adjust equities through accounting once full evidence is presented. Thus, a limited temporary contribution order—such as $500 per month—does not prejudice a spouse’s later right to reimbursement.
PREPARING FOR PROPERTY TRIAL
After disclosures are exchanged and any settlement conference is completed, the court will set a property trial (a bench trial, not a jury trial). During that trial, the judge will:
- Hear testimony from each party and, if applicable, financial experts.
- Review exhibits such as mortgage records, payment histories, rent receipts, and appraisals.
- Apply legal principles from Epstein, Watts, Moore, and Marsden to reach a final equitable division.
This is where parties can recover reimbursements for payments made, seek credits for use, or establish their percentage ownership of the home.
KEY TAKEAWAYS FOR CALIFORNIA DIVORCING HOMEOWNERS
• A property control order is temporary and designed only to preserve assets.
• The judge’s interim decision does not determine final ownership or reimbursement.
• Courts rely on Family Code §§ 3800–3802 and equitable doctrines from Watts, Epstein, and Stallworth when allocating temporary expenses.
• The final accounting and division occur later, at a property trial or through settlement.
Understanding this process helps divorcing spouses focus on long-term strategy rather than reacting to short-term, interim orders.
ABOUT THE AUTHOR
Andy Yang, Esq., is a California family law attorney representing clients in property division, reimbursement, and financial disputes in divorce proceedings throughout the Bay Area.