What if a person were to buy a house as community property (husband & wife) but weren't married?

Question

Dick and Jane are married with a house. Dick and Jane get divorced and she leaves the house and all debt associated with it to him. Dick pays off his house. Dick and Jane reconcile but never remarry. Dick uses the proceeds from sale of the old house to buy a new house with Jane. Jane contributes nothing financially. They sign the deed as Husband and Wife Community Property with right of survivorship. Jane stays a year or two and then runs off with the cableguy. Years go by and Jane never returns.
Admittedly Dick is an idiot. But can he do anything? Does Jane automatically get the house upon Dick's death? Can he sever the right of survivorship and leave at least half the house to his kids? Better yet can he remove her entirely from the deed in that they were not married (and signed that they were) and Jane contributed nothing into the purchase of the house? (Arizona is the hypothetical state by the way.)

Answer 1

I don't know Arizona community property law specifically, so this is just general community property law.

A deed that is facially defective is invalid. Since Dick and Jane are not married when they buy the new house, it cannot be CP, nor would it be quasi-CP since it was purchased in a CP state.

The judge would have two options. First, reform the deed to be Joint Tenancy with Rights of Survivorship (treating it as quasi-marital property in a putative marriage). JT can be severed normally by a partition action (skipping the strawman step, as most states do) after separation, resulting in Tenants in Common.

Alternately, if Dick can show fraudulent inducement, he may be able to get the deed set aside entirely, in which case he owns the house based on the land sales contract (assuming there is one).

A third alternative (of the two) is that Dick can file an unjust enrichment equitable action against Jane, as a quasi-contract claim based on the defective deed and the imputed contract that Jane would contribute to the house maintenance costs.

Of these, I consider the JT reformation most likely, since the court is probably not going to feel too sorry for Dick being an idiot.

Answer 2

A judge cannot enforce an illegal contract. Signing the deed as husband and wife when they were not makes the contract illegal because it can't be community property if they are not maried. The only way Jane could possibly have made it stick is if she had stayed for 7 years; the time it would take for her and Dick to be considered common law husband and wife. Dick needs to pull all his paperwork together regarding the first divorce and proof that Jane left him for someone else. He should be o.k. even though it may take a fight.

Answer 3

If Jane's name is on the deed, she is 1/2 owner. The house cannot be sold, refinanced or anything else, without her permission, hypothetically, that is.