“Who gets the house?” is one of the most common questions people ask when considering a divorce. It is an understandable concern, as the family home is often the most valuable asset in a couple’s possession—not to mention all the memories associated with it.
Let’s take a closer look at how property division works in California divorce court and how the process may apply to your house.
Understanding California Property Division Laws
California is a community property state. Under the state’s divorce law, any assets and debts acquired during the marriage belong to both spouses for property division purposes. This rule includes the family home.
Family courts in California typically allocate community property on a 50/50 basis, regardless of considerations such as whether one spouse’s fault (i.e., infidelity) led to the dissolution of the marriage.
Community Versus Separate Property: Which One Applies to Your House?
Your house won’t count as community property if you purchased it in your name before the marriage, and the title is in your name only. Your spouse may have a small interest, but typically, you would keep the property.
On the other hand, if you purchased your house together with your spouse or added your spouse’s name to the title of a house you already owned, it would be considered community property and subject to the 50/50 division principle.
Any prenuptial agreement you and your spouse may have signed can also influence property division.
Inherited and gifted property
What if the house is inherited or gifted property? Under California law, gifted and inherited assets count as separate property during division.
The issue might become more complicated if the inherited or gifted property was commingled. Let’s say that one of the spouses inherited the property, but later, both spouses used their communal funds for significant repairs and improvements that increased the house’s value. In this case, the other spouse has acquired interest in the property.
The Differences Between a Contested and Uncontested Divorce
An uncontested divorce refers to a situation in which both spouses negotiate a mutually acceptable, legally binding agreement covering issues such as property division, alimony, child support, and custody.
Such an agreement is almost always preferable to going to court, as it allows both spouses to retain some control of the property division process. A family attorney can assist you with divorce mediation and help all involved parties reach an agreement regarding vital issues, including the division of family property.
3 Options to Consider for Your House in a California Divorce
Divorcing couples in California usually choose one of the following options to determine who keeps the family home:
1.Buying out. Often, California divorce settlements result in one spouse buying out the other’s interest in the house. If you buy out your spouse, you will remain the sole owner of the property.
2. Selling and dividing net proceeds. You may also decide to sell the house and divide the proceeds. Depending on your agreement, that split might be 50/50 or based on other factors. For example, if you have considerable debt, you might agree that one spouse keeps a larger share of the profits in exchange for taking on the debt.
3. Staying in joint ownership. In some cases, it may make sense to remain in joint ownership of the property after the divorce, especially if you have minor children living in the home.
Should I Fight to Remain in the House?
Among the uncertainty and confusion of a divorce, doing everything possible to remain in your home may be an almost visceral reaction. However, when planning for your future, it’s best to take practical considerations into account.
Depending on your finances and the state of the property, it may make more sense to sell the house and downsize to a smaller, more manageable living unit. Downsizing can allow you to adjust expenses to income while enabling you to make a fresh start in a new home.
The Family Home and Custody
Often, the custodial parent is the one who remains living in the family home to reduce any disruptions to the lives of minor children. However, property division and child custody are two separate matters.
Considering a Divorce in California? Contact Seabrook Law Offices to Schedule a Consultation with a Family Lawyer
At Seabrook Law Offices, we give our clients a dedicated, empathetic, and knowledgeable legal service. We understand property division during divorce can be a nerve-racking, stressful experience. Our hardworking legal team can help you protect your rights, reach a reasonable settlement, and regain your freedom.
The family court system is a sewer system, and although you may feel tempted to fight it out with your spouse, it is in your best interest – and your children’s best interest – to get out of it as soon as possible. During this dangerous time, you must put on your “grown-up pants” and handle your divorce responsibly and carefully. Our reliable, experienced attorneys and legal staff focus on getting you to settle wherever possible to resolve the burdensome issues and pave the way for your new life.
Your search for a “divorce attorney near me” ends here. To book a consultation with an experienced divorce lawyer in San Jose and receive the support of our knowledgeable and compassionate legal team, call us at 408-703-1563.
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The information in this blog post (“post”) is provided for general informational purposes only and may not reflect the current law in your jurisdiction. No information contained in this post should be construed as legal advice from the individual author or the law firm, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in or accessible through this post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction.
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6840 Via Del Oro, Ste. 265
San Jose CA 95119