Lawyers Handling Family Residence Issues in San Diego

Who Gets the House in a Divorce?

Divorce is never easy. It can be a time of tremendous stress that upends the lives of everyone involved with lasting repercussions. This is especially true when determining who gets the family home, which can be a bitter and costly process if not handled properly.

If you are going through a divorce, it is critically important to fully understand all of the legal issues involved with dividing a household and any real estate you owned before or after your marriage. Property division is an extremely complicated process, which is why you should contact a knowledgeable San Diego divorce and real estate lawyer at Mattis Law, A.P.C. We can utilize our years of experience to review your case, explain your rights, and advocate for a beneficial outcome so that you and your spouse can come to a fair and equitable resolution. We offer every potential client a free initial consultation to answer questions, so there is no cost to calling our office at (858) 328-4400 to schedule an appointment.

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When Are Houses Community Property?

While you might assume that a house is solely owned by the person whose name is on the deed or who paid the majority of the mortgage, these cases are often much more complicated than that. You also have to consider when the house was purchased in relation to your marriage, whether or not you inherited the property, and if there is a written or oral agreement about who owns the property. In addition, you are also subject to California’s divorce laws.

California is one of several states that recognize community property, which is similar to a business arrangement between two parties. According to state law, "Property that a couple acquires during marriage/partnership is 'community property.' And debt that a couple acquires during the marriage/partnership also belongs to the 'community debt.'" Community property is essentially everything that spouses or domestic partners own together, including everything you acquired while you were married or in a domestic partnership (with the exception of gifts or inheritance).

If you purchased your house after marriage, it would be considered community property, as well as community debt if you have a mortgage. Often, one of the most contentious aspects of a divorce proceeding is how to divide communal property, especially as it pertains to residences. Sometimes, couples are able to reach a mutual agreement on how to divide all assets, and there is no dispute that requires contentious litigation. Unfortunately, in many instances, couples find it is difficult to come to a consensus on how to split their family homes and real estate. Even when two spouses wish to separate amicably, the complicated nature of assessing who should get what requires outside arbitration.

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What If I Owned a House Before Marriage?

If you purchased a home or owned real estate prior to marriage, it can be considered separate property, and you may maintain full ownership. This can include any real estate you purchased, received as a gift, or inherited from family members. In addition, any rent or profit you earn from your separate property is also considered separate property.

Determining what is community property and what is separate property can heavily impact the nature of your divorce. You might assume that everything prior to the date of your wedding is considered separate property, but it is much more complex. For example, if your mortgage is carried over into your marriage and marital income paid into it, your spouse may have an interest in the property’s value. This can make your divorce much more contentious if you do not come to an agreement about how that interest should be paid out.

This mixing together of community and separate property is called commingling. When you are going through divorce proceedings, trying to divide property that is commingled can be extremely complicated. This is particularly true when it pertains to homes, military pensions, and other large assets. If you want to ensure that you are fully and fairly compensated during your divorce, then you need to seek the counsel of an experienced complex property division lawyer.

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Out-of-State Real Estate and Divorce

In complex, high-asset divorces, it is not uncommon to have real estate in multiple states. While you may assume that a vacation home in Colorado or a plot of land you own in Utah would be subject to your local real estate laws, that is not always the case. In general, California judges do not have jurisdiction over property in other states, but they do have jurisdiction over parties in a California divorce. This means the judge overseeing your divorce can order you to divide your out-of-state real estate in a divorce.

Out-of-state real estate is also considered quasi-community property, which is basically the same as community property, except it covers any residences or property that was acquired while living in a different state. The basic rule of thumb is, if it would have been considered community property in California, then when you move to California, it becomes quasi-community property. It is still subject to the same rules about community property and property division.

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How Are Houses Divided in a California Divorce?

Generally, if a house is considered separate property without any commingling, then it would remain with the original owner after a divorce. But even with communal property, there are several solutions that a skilled divorce attorney can utilize to help divide your real estate, including:

• Premarital Agreements: If you have a prenuptial or postnuptial agreement that specifically includes any real estate you own, these agreements can provide clear guidance about how the properties are divided and who retains ownership. While they can be disputed, they can bear great weight in your divorce.
• Sell and Divide: While it may be heart-wrenching to sell your home, it can be the quickest and most effective way for you and your spouse to divide it. Once it is sold, you can divide the profits accordingly so that you have a fair and reasonable split. This is often the best option if you neither of you can afford to own the home on your own.
• Buy Out: Beyond selling a house, you may be in the position to purchase your spouse’s share of the property or be able to trade properties. For example, if you own both a family home and vacation home, one partner may get the family home while the other gets the vacation home. This may cause some contention if the value of the houses is different, but it can be a viable solution if you want to avoid selling them.
• Deferred Sales: There are situations where you may be barred from selling your home. This is often because a court has issued a “Temporary Defer of Sale” order which requires that you both retain ownership of the home and must avoid selling it until a certain date. These orders are common in cases where you have minor children, and the judge overseeing your case does not want to force the children to move during a school year. There are several other factors a judge can consider as well, but the main focus of these orders is to protect your children from turmoil. During a deferred sale, the parent who has physical custody will remain in the home.

Not every solution will work for your situation, especially if you have a large amount of real estate. Your best option is to review your cases with a team of highly experienced attorneys who can determine how your property should be divided.

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Speak with a San Diego Family Law Attorney

Going through a divorce is a difficult process. You have to take a hard look at your finances, review your taxes, and carefully split up every piece of property you own. Whether you own a single house or have multiple plots of land, you may have a difficult time dividing your property between you and your spouse.

Working with an experienced and knowledgeable lawyer is the best option, which is why you should not hesitate to contact Mattis Law, A.P.C. Our San Diego divorce lawyers have the experience and resources to ensure you get the professional representation you need to protect your future. We can work through your finances to determine how your real estate should be divided and who should retain ownership. Our office's standard of high-quality service means your needs will be met and you can rest assured that your interests and your children are being protected. Contact us today at (858) 328-4400 to schedule a free consultation.

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Additional Information

• Property and Debt in a Divorce or Legal Separation