Divorce in California - Who Gets the House?

The family home is not only the most valuable asset in most divorces, it’s also the most emotional, especially when there are young children. California law treats the marital home as either community property to be divided 50-50 or as the separate property of one spouse, but there are many factors to consider in making this determination. If keeping the house is important to you, consulting with an experienced, aggressive Marin County divorce attorney is a must.

Community Property or Separate Property?
California law presumes that any real estate acquired during the marriage is “community property” that is owned equally by both spouses. A major exception is when a house is given to one of the spouses as an inheritance or a gift, which would be presumed to be the property of that spouse. A more complicated situation arises when a home is owned by one spouse prior to the marriage. The spouse that is not on the title may be able to rebut the presumption of separate property by showing that mortgage payments and improvements were paid for with marital funds.

Options for the Family Home in a Marin County Divorce
If the home qualifies as separate property, the titled owner will simply get the house. There are several options when the house is community property. Most of the time, the house is sold and the profits are divided because neither spouse can afford to keep up the payments on the house on their own.

Another option is a “buy out,” with one spouse paying half the value of the house to the other, and becoming the sole owner. The buy-out is an attractive option, but it’s important to consult an experienced Marin County divorce attorney to determine whether you will be able to afford the entirety of the upkeep. Be sure to consider the tax implications and all of the expenses such as:
• Mortgage Payments
• Utilities
• Repairs
• Gardening
• Property Taxes
• Maintenance for specific items such as a pool or tennis court

Sometimes, when the spouses have young children, the child will issue a “deferred sale of home” order. This will require the spouse that is not living in the home to make payments towards the mortgage and upkeep for a limited amount of time, allowing the children to continue to live in the home.

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