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Who Gets The House In A Divorce In California

Divorce can be a process marked by legal and emotional turmoil. Central to many disputes is often the question of who gets the house in a divorce. In California, where community property is a key consideration, the marital home can be of particular concern for divorcing couples. Read on to delve into the intricacies of what happens to the house in a divorce in California.

Renee White
Written by Renée White
  / September 12, 2023

Renée White is a top-producing real estate broker with over 20 years of experience and an annual average of 200 sales. Clients are drawn to Renée for her deep knowledge of the local Contra Costa market.

Table of content
    KEY TAKEWAYS
    • Community property laws are central to deciding who gets the house in a divorce in California.
    • A process of discerning between community and separate property often occurs during divorce.
    • A marital home is usually community property, though it can get quite complex.
    • Property titles play an important role in property division.
    • There can be special considerations like interspousal transfer deeds.
    • If both parties want the house, disputes are usually settled in court.

    Who Gets The House In A Divorce In California

    In California, community property laws are the primary consideration for what happens to the house in a divorce. ‘Community property’ generally refers to assets and debts acquired during the marriage, and there are several potential scenarios in relation to the marital home:

    • Joint ownership: The house is considered community property if both spouses are listed on the title or deed, so the house would have to be equally divided.
    • Separate property: If the house was owned by one spouse before the marriage, and it demonstrably remained separate property throughout, it may not be divided. This would not be straightforward, however.
    • Agreement: Spouses can sometimes reach an agreement on the division of a house without adhering entirely to community property rules. This is called a settlement agreement.
    • Court decision: If no agreement can be reached, it falls to the court to make a decision. This will take various factors into account to reach a fair conclusion.

    California’s community property laws can make property division complex, so it is wise to consult with an attorney.

    man and woman sat separately on a couch for who gets the house in a divorce california

    California’s Property Division Laws.

    As mentioned, community property laws are the main factor in deciding who gets the house in a divorce in California. ‘Community property’ refers to most property and debts acquired during the marriage, and these are usually divided equally between spouses during a divorce. Separate property is anything that was owned by either spouse before the marriage or acquired as a gift/inheritance during the marriage. It is not subject to equal division, but you will need to demonstrate that it was not used in any way to benefit the marriage. If you need to sell your home quickly in Contra Costa to divide the property, we can help.

    One important thing to understand is the Community Property Presumption. This is a legal doctrine that, by default, presumes that property acquired by a couple during the marriage is community property. If you wish to argue otherwise, you will need to provide comprehensive proof. This presumption is a fundamental principle of California’s community property framework.

    How Is Property Divided After Divorce In California?

    To understand who gets the house in a divorce in California, you need to explore the way property is divided. Let’s take a look at the steps involved to get a stronger comprehension of the processes involved.

    1. Identifying community vs separate property: Based around the Community Property Presumption, anything acquired during the marriage will be considered community property unless you can prove that it is separate.
    2. Valuation: All community property will be valued as of the date of the separation to determine the assets and debts that will be subject to division.
    3. The equal division principle: In accordance with California state law, each spouse is entitled to a 50% share of the value of all community property, including debts.
    4. Considering separate property: Separate property remains with the spouse it belongs to. But if any of that separate property gained value during the marriage, that additional value may be considered community property.
    5. Alimony and child support: Property division may come into the equation when determining alimony and child support.
    6. Settlement agreements: If a spousal settlement agreement can be reached on the division of property, this is usually accepted by the court as long as legal requirements are met.
    7. Court intervention: In cases of bitter dispute where agreements cannot be met, the court will intervene and make a decision based on many factors.
    8. Property sale: In some cases, where it is difficult to divide assets, it may be necessary to sell the marital home and divide the proceeds. We can help make a swift sale to move things along.

    The process of property division after divorce in California can be lengthy and complex. The outcome is never guaranteed, as every divorce case is unique. It is wise to seek legal advice from an experienced family law attorney to help reach an agreement. In some cases, you may choose to transfer the property title to one spouse to avoid disputes.

    Is A House Community Or Separate Property?

    The criteria for determining whether a house is community property or separate property are central to the question of what happens to the house in a divorce in California. There are various factors involved, and it can be quite complex. The most critical factor is the date of acquisition – if the house was purchased before the marriage or after the separation date, it is typically considered separate property. Here are some other considerations:

    • The source of the funds: If the house was acquired using money earned by one spouse before the marriage, or received via inheritance/gifts, it may qualify as separate property.
    • Commingling: Any time separate property funds are commingled with community property funds, matters can become complicated. For example, if money considered separate property is used to make substantial improvements to the marital home, the increase in value to the community property will not be considered separate. It makes it difficult to distinguish between separate property and community property, and it may become necessary to trace the source of funds.
    • Use and contributions: If a house is initially separate property, but both spouses use community resources to maintain or improve it, the home may become community property to some extent.
    • Rental income: If one spouse receives rental income from a separately-owned property, that income is separate property as well. However, if those funds are then commingled with community funds, they can become part of the community property.

    As you can see, unless you consciously maintain separate property throughout a marriage, it is very easy for it to become community property. The processes for tracing this can be complex and can lead to disputes, so it is often more favorable for an agreement to be reached. If you want to buy a house in California and keep it as separate property, work with us to find the right property and get the advice you need to maintain its separate status.

    The Role Of Title In Property Division

    The property title can be pivotal in deciding who gets the house in a divorce in California. It is an important document for determining the ownership status of a house when divorce proceedings get underway. Here are some of the roles the property title can play during property division:

    • Documenting ownership: A property title is a legal document that serves as the official record of property ownership. In many cases, it serves as strong evidence of ownership, so if both spouses are named on the property title then it is very likely to be considered community property. Similarly, if only one spouse’s name is on a property title, it is likely that home will be considered separate property.
    • Rebutting community property presumption: The property title is compelling evidence, but there are avenues for challenging this if either spouse has evidence to the contrary. If there is proof that the home was purchased using separate funds, there is a chance it could be considered separate property.
    • Transfer of ownership or property sale: The title will be a factor if the decision is reached to either transfer ownership of the property or sell it. If you want to sell a house fast in order to divide the proceeds, contact us and we can help make it happen.

    Understand that while the property title is a central piece of evidence for property division, it is not always the only determining factor. Other considerations include the source of funds, contributions made during the marriage, and any existing legal agreements between spouses. Seek advice from your attorney to help navigate the property division process.

    two people exchanging paperwork and a pen for who gets the house in a divorce california

    Special Considerations In Divorce Property Division.

    In the question of how to get the house in a divorce in California, there can be some special considerations. An interspousal transfer deed is a legal document for transferring real estate between domestic partners or spouses. When one spouse/domestic partner wishes to transfer their ownership interest to the other spouse or partner, this can be a mechanism to facilitate changing the name on the title. This is a legal document, so it must be prepared correctly to be considered valid.

    There are several scenarios where one spouse may qualify to keep the house by agreement in California. These can include:

    • The house is deemed to be separate property
    • An agreement is reached between the spouses
    • One parent may be awarded the family house as part of child custody
    • Homes can sometimes be allocated to one spouse as part of the alimony settlement

    If you want to buy a new house in California in the midst of a divorce process, you should be extremely careful. The new house could be deemed community property unless specific circumstances apply, so you would need to seek legal advice for an answer to the question ‘Can I buy a house during a divorce in California?’

    You should also consider how the financial commitment would affect your financial status and your ability to pay things like alimony and child support. Given the complexity of property division during a divorce in California, it is unwise to make any major financial decisions without seeking expert legal advice first.

    What Happens To The House In Divorce: Major Options And Scenarios

    In most cases, there are three things that may happen to the house during a divorce. In some cases, one spouse may transfer their interest in the property to the other, or it may be awarded to one individual. However, the most common scenarios are a sale, a buyout or a deferred sale.

    • Sale: The house is put on the market and the proceeds from the sale are divided equally between the spouses in accordance with community property laws.
    • Buyout: One spouse uses separate property funds to buy out the other’s interest in the house so that they can continue living in it.
    • Deferred sale: This is where the divorcing couple agrees for one spouse to remain in the family home for a specified period. This is usually done for the benefit of minor children, and the house is sold at a later date for the proceeds to be divided equally.

    How Do You Ensure That You Get The House In A Divorce In California?

    If you want to know how to get the house in a divorce in California, the only way to be certain is to have already made a legally binding agreement ahead of time. In other words, there would need to be a pre-/post-nuptial agreement in place, or you would have had to buy the property with separate funds and kept a record of how you have prevented it from becoming community property.

    Beyond this, there is no way of ensuring that you get the house. It will come down to whether or not your ex-spouse is willing to transfer their interest to you, or whether the court will award you the home.

    What Happens If Both Parties Want The House?

    If both parties want to get the house, there is likely to be a dispute. If an agreement cannot be reached amicably via mediation or in private, the court will have to intervene. Both parties will need to present their cases to the court, with legal representation to protect their interests.

    This can become a long and complex process and may well result in the house having to be sold to divide the assets. It is often not the ideal route to take, but it can be unavoidable if both parties want the house.

    a gavel in a courtroom for who gets the house in a divorce in california

    Frequently Asked Questions

    Who Gets The House In A Divorce In California

    This is determined by community property laws. In many cases, the house must be sold to divide its value equally, but there can be circumstances where this doesn’t happen.

    What Happens If Both Parties Want The House?

    If an agreement cannot be reached, the court will have to intervene to settle the dispute. This can be a complex and expensive process.

    How Is Property Divided After Divorce In California?

    In most cases, property that is deemed ‘community property’ is divided equally after a divorce. However, separate property and issues relating to childcare and alimony can complicate matters.

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