Who Gets the House in a California Divorce?


One of divorcing couples' most pressing questions is "Who gets to keep the home?" Unfortunately, the answer isn't always straightforward. If the couple cannot agree on who stays in the home, a judge will decide based on property division laws. California is a community property state, which means that anything the couple acquired during the marriage belongs to both equally. Thus, if the couple bought the house together or jointly paid the mortgage, it would be split equally between them. However, if the residence is considered separate property, the spouse who owns it gets to keep it.

If you're going through a divorce, it's important to ensure that property division is done fairly, especially when splitting the home. At the Law Offices of Makupson & Howard, our Pasadena attorneys work to protect our clients' rights. Contact us at (888) 328-2734 today.

California's Property Division Laws

Before discussing how a home may be divided in a California divorce, let's first explore how assets, in general, are distributed.

The state follows the community property doctrine. The principle provides that any assets or debts the couple owned or acquired while married are community property. Each spouse has an equal interest in it. In a divorce, community property is subject to a 50/50 split.

In contrast to community property is separate property. This includes assets or debts one of the spouses individually held before the marriage. It also includes gifts or inheritance one party got while married. The spouse who owned or owed it gets to keep it in a divorce.

Is a House Community or Separate Property?

Whether a home is considered community or separate property depends on the couple's situation. It would be community property if it were purchased with money earned during the marriage or if the spouses took out a mortgage for it while married.

A home is separate property if one of the spouses owned it before the marriage. Yet, things can get complicated after the marriage, as separate and community property can become commingled.

To illustrate, suppose one spouse purchased a house before getting married. So far, the house is separate property. But let's say after the couple gets married, they each use their earnings to pay the mortgage. The couple may acquire a community interest in the house based on mortgage payments made during the marriage. If one of the spouses used their separate funds to put a down payment on the home, which was purchased while married, they are entitled to receive the down payment off the top before equity is divided.

What Happens to the Home in a Divorce?

Which spouse gets to keep the house (if either does) depends on a few factors. The couple can agree together about who stays in it. Although they might establish this agreement jointly, the court must still review it and make the order official.

If the couple disagrees on who the house goes to, California's property division laws will come into play. Thus, if it's separate property, the spouse who owns it keeps it. If it's community or commingled property, it must be split between the spouses. How this happens depends on the situation.

The couple's options include:

  • Selling the home: With this avenue, neither spouse keeps the house. Instead, the couple sells it, and they divide the profits equally (after considering any portions considered separate property). Generally, couples go this route if it would not be financially possible for either spouse to maintain payments, taxes, and other costs on their own.
  • Buying out: One spouse may keep the home, but they must pay the other spouse their share of the value.
  • Deferring sale: Couples with minor children still living at home might elect this option to mitigate the effects of the divorce on the kids. The spouses remain joint owners, but the custodial parent has exclusive access to the house for a set period. After the allotted time, the couple sells the home.

How an Attorney Can Help

Dividing a home can be complicated. Before deciding how to move forward, speak with one of our Pasadena attorneys. We can explain property division laws and your rights and discuss the advantages and disadvantages of your different options for splitting your house.

To schedule a consultation with a member of our team at the Law Offices of Makupson & Howard, please call (888) 328-2734 or submit an online contact form today.

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