Most people know that in divorce or domestic partnership dissolution, certain employee benefit plans can be joined to the action. In so doing, the retirement accounts are divided before the case is complete. But not everyone knows about other "joinder provisions" in the Family Code that help interested parties in other situations.
While uncommon, joinder provisions in divorce can serve to protect a party's rights or limit a spouse's exposure. Once joined, the third person effectively becomes a party to the case.
When might a party have a recognizable interest in a marital action that prompts a joinder provision?
Let's explore some scenarios.
Scenario: A third party has an interest in marital property
If a third party holds title to or claims an interest in real or personal property subject to disposition in the proceeding, the court may join that party to the action. The court may also join a third party if they are needed to enforce an issue. Here are a few examples:
- A husband engages in an affair during the marriage. He lavishes his girlfriend with gifts and pays for them with his wife's (or his) earnings. The wife seeks to join the girlfriend in the action.
- A wife and her business partner own 30% of a corporation. That 30% is community property. Thus, the corporation may need to be joined to the action to protect its interests.
Criteria for joining a party
When deciding whether to join a party, the court considers the following factors:
- Whether it would be appropriate to determine a particular issue in the proceeding
- 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 party or parties, the court has the power to decide the rights of anyone who claims an interest.
Scenario: There is a claim of child custody or visitation rights
The court prefers awarding custody of a child to their parents. In limited circumstances, however, it may award custody or visitation rights to a third party, such as a grandparent or sibling.
Either parent or a third party may apply for a joinder. If the court learns that a third party has or claims custody, control, or visitation rights of a child, the court must join that party to the action. For example:
- A grandparent who has assumed the essential role of a parent may have a basis for joinder in a family law action.
Scenario: A party has been served with a restraining order
Property restraints (like restraining a person from transferring, concealing, or disposing of real or personal property) are sometimes directed to nonparties. For example:
- A trustee of property owned by one or both spouses may be restrained from distributing the property until the court determines the parties' respective interests in the trust corpus.
The person to be restrained may contest the restraint at a court hearing in the family law proceeding. They can do this 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 needed to protect their rights.
Joinders are rare in family law cases. However, they sometimes prove essential in protecting rights in a divorce, child custody action, or domestic partnership dissolution.
