The family home is usually the biggest asset owned by a married couple.
If it is community property (in other words, owned jointly by both spouses), can one of you keep it? Very possibly, yes; although a variety of circumstances can affect this possibility. Here are some factors that should be considered when determining whether you can expect to keep the house when divorcing.
Is the house community property?
The first question to ask is whether you and your spouse jointly own your home. In California, property acquired during the marriage is generally “community property,” meaning it is jointly owned by both spouses. If the home was purchased during the marriage with income earned during the marriage, it will be characterized as community property.
Sometimes, an asset such as a home is purchased with both community property and separate property in which case the spouse providing his/her own separate property funds will be entitled to a reimbursement. In other words, that portion of the asset will not be divided equally between the two of you in the divorce.
How can I keep the marital residence if it is owned by both of us?
Although a California court must divide community property equally, this does not mean you cannot keep the house. What it does require is that you offset your spouse’s portion of the home with other assets. For example, you might agree that your spouse will keep all of his/her retirement savings rather than dividing it with you in exchange for your keeping the house.
What matters at the end of the day is that your property is divided equitably overall.
How is the house transferred to my name only?
The two most common ways to transfer a property in a divorce in California are through an interspousal transfer deed or a quitclaim deed.
An interspousal transfer deed transfers the title from the married couple to the single spouse upon divorce. A quitclaim deed transfers whatever interest one spouse has in the real property to the other spouse, without any guarantees or promises. In California, it is crucial that this is accompanied by an order or agreement signed by both parties.
With a quitclaim deed, both spouses could still be liable for the payment of the mortgage. It can be helpful to include a clause that provides for the retaking of the home by the nonresident spouse in the event the spouse who was awarded the property becomes delinquent on the payments. That way, the non-resident spouse will be able to take ownership of the property and either sell it to satisfy debts or bring the mortgage payments current before foreclosure.
Talk to an affordable family lawyer today.
These are a few of the factors to be considered when determining whether you will be able to keep the house in the divorce. At Shoreline Legal Group, we can advise you on property issues and assist you in drafting or negotiating a property settlement agreement. With affordable divorce options and success in helping previous family law clients, you can rely on us for your flat fee divorce needs. For a flat fee, we can offer legal coaching, divorce document preparation, and even tell you how to represent yourself in family court. Contact the low cost divorce attorneys at Shoreline Legal Group where we’re simplifying the legal process step by step. Serving Long Beach, Cerritos, Santa Ana, and Orange, CA as well as surrounding areas.