Am I entitled to a house my husband acquired during marriage using his power of attorney?

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Am I entitled to a house my husband acquired during marriage using his power of attorney?

My husband used his power of attorney to acquire a house during our marriage. Whom he has power of attorney over is not deceased. We are now divorcing and I am filing a default judgement due to the fact he has not responded to any of the filings. Is this house community property? Its not a gift nor is it and inheritance because the person is not deceased.

Asked on February 21, 2019 under Family Law, California

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 2 years ago | Contributor

It would be community property and you would have a right to it as commuity property since it was acquired durig marriage IF it was acquired legally--which means that your husband paid fair market value over it. It would be treated like any other home bought during marriage.
However, he did not pay fair market value for it but simply used the POA to take over property owned by the person who gave him the POA, he almost certainly breached his fiduciary duty and very possibly committed a crime as well: an agent or attorney-in-fact (the person given power by a POA) may not benefit himself at the expense of the principal (person giving him the power) or put his interests ahead of the principal. If your husband improperly took this property, neither of you will ultimately have a right to it, since an illegal transaction or one in violation of fiduciary duty can be undone or set aside, and the house transferred back to the person to whom it belongs.


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