For many Los Angeles divorce clients, the family home is one of their most significant assets. Yes, the value of real estate in Los Angeles is substantial. But it can also be difficult to bear the thought of losing one more thing, especially a home.
It's normal to have questions.
Does the wife get the house in a divorce?
No. A common misconception is that the wife automatically gets the house in a California divorce. This is not true.
Who gets the house in a divorce?
The first step in figuring out who will keep the home or whether it will be sold to a third party is to determine who owns it. The home might be the separate property of either spouse, or it may be community property.
Generally, in a California divorce, property acquired during marriage is presumed to be community property.[i] Such assets are split evenly in divorce. Property owned by a person before marriage, property acquired by gift or inheritance, or property acquired after marriage is separate property.[ii]
How is the family home divided in a divorce?
Once ownership is determined, the parties can look towards dividing the home.
If the home is one spouse's separate property, it will likely remain separate property, subject to reimbursements or community ownership interests, if any. [iii] It is possible to inadvertently create community property interests in separate property real estate.
The next step is to determine the value of the home. The simplest way to do this is to list the home for sale. Once sold, the value of the home is finalized, and the parties can move towards the final step of determining the division of the equity based on community property and separate property interests.
If, rather then sell the home, the parties agree for one spouse to buy out the other, the home will likely need to be appraised in order to determine its value.
Who gets the house in a divorce with children?
In a divorce with children, one spouse can buy out the other's interest, the home can be listed for sale, or sale of the home may be deferred to protect the children's status quo.
If the parents agree, they can submit a written agreement to the court for the judge’s signature. Once the judge signs, the agreement becomes a court order. Generally, the court will not get in the way of a parties’ agreement for a buy out, sale, or deferral of the sale.
If the parties do not agree to defer the sale of the home, one parent can request a court order for deferred sale of home.[iv] The purpose of the order is to minimize adverse effects of the divorce on the children's wellbeing.
The court must first determine whether it is economically feasible to maintain mortgage, property tax, and insurance payments during the period of deferred sale and to maintain the home in a condition comparable to that at the time of trial.[v] The court then looks at other factors, such as the length of time the children have lived in the home, the children's placements or grades in school, and the emotional detriment to the children associated with a change of residence. [vi]
Normally, the resident parent is responsible for all mortgage payments, property taxes, homeowner's insurance, and reasonable maintenance. Title is generally held as tenants in common, and not as joint tenants.[vii]
[i] California Family Code §760
[ii] California Family Code §770
[iii] See, Marriage of Moore (1980) 28 C3d 366 and Marriage of Marsden (1982) 130 CA3d 426)
[iv] California Family Code §§3800–3810
[v] California Family Code §3801(a)
[vi] California Family Code §3801(b)
[vii] See, Marriage of Stallworth (1987) 192 CA3d 742, 747 n2
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