Splitting shared property is often one of the most contentious parts of a divorce. Property does not represent just a thing or a place but memories and experiences. Figuring out how to fairly distribute the things you have shared with your spouse for years can lead to serious disagreements when both of you value or have sentimental attachments to the property.
You can often resolve the division of your property through negotiation or mediation. Since this allows both parties to compromise, attempting an agreement can allow both parties to walk away with the things that matter most to them. At Pakpour Banks LLP, we focus on finding reasonable solutions to issues that can seem unfair. Although we do not shy away from trial when it becomes necessary, we are avid negotiators. Contact us today!
What Is Divided in a Divorce?
When you get divorced, you divide shared property and shared debts. But what is property in this context?
Property includes the tangible things most people typically think of when they hear the word. It includes real property, like a house or a commercial building. It also includes personal property, like furniture, vehicles, or other physical items. Beyond those tangible items, property also includes less tangible things, like bank accounts, investments, and retirement accounts.
In addition, married couples may also share liability for each other’s debts. This includes typical situations like mortgages, car loans, student loans, or credit card debt.
Community Property vs. Separate Property
The first thing you must determine when determining who gets the house in a California divorce is whether the house is community property or shared property. In California, divorcing spouses usually split community property evenly. However, each spouse can generally keep their separate property.
Community property is property obtained during the marriage. This includes debts and assets, though spouses can agree in writing that certain items belong to only one person.
Separate property is obtained before marriage, after separation, or through individual gifts or inheritance. And once you file for divorce, your newly acquired property typically becomes separate property.
Community Property Division
An even and fair distribution of the tangible and intangible property shared by spouses can be complicated. You must put a value on all community property, and each spouse is entitled to walk away with half of that amount. House ownership in a California divorce ultimately depends on how the totality of community property is divided.
Although California divorce property rights entitle each spouse to an equal share of community property, spouses can choose to accept an unequal distribution of assets. A judge must agree that the “uneven” distribution is fair, but the spouses can negotiate freely as long as the agreement they reach is not unfair to either party.
Unequal distribution of assets may be fair when one spouse has significant separate property. It may also be warranted where one spouse supported the other to allow them to attain higher levels of education or if one spouse provided or continues to provide most or all childcare.
Buying the Other Spouse Out
If neither spouse wants to release their entitlement to an equal share of community property, one spouse may buy the other out of their share. In essence, one spouse trades property equal in value to half of the house in exchange for keeping the house. The ultimate buyout amount depends on the remaining mortgage owed.
For many, a house is the most valuable asset they own, and nothing else comes close. If neither spouse has enough assets to buy the other out, you can immediately sell the house and evenly split the proceeds. Immediate sale may also be the best option when neither spouse can individually afford mortgage payments, regardless of whether one spouse buys the other’s share.
Instead of an immediate sale, you may sometimes arrange a deferred sale of your house. But you and your spouse must:
- Have at least one shared child,
- Be able to maintain payments on the home, and
- Show that keeping the child in the home is necessary to minimize the impact of the separation.
One of the parents and the child or children will continue to live at the home until the sale.
Whether the court approves a deferred sale depends primarily on whether continuing to live in the home is in the child’s best interests. The court considers:
- How long the child has lived in the home,
- The child’s age and year in school,
- How near the home is to the school and child care services,
- Whether the home has special features adapted to the child’s needs,
- The emotional effect of moving on the child,
- The impact on the resident parent’s employment,
- Tax consequences, and
- Potential negative economic impacts on the nonresident parent.
A deferred sale order sets out a specific length of time. Changed circumstances may justify ending the deferral early, especially if one of the parents gets remarried.
Contributions to Separate Property
Even if your name is not on the deed, you may not be out of luck. In rare cases, your spouse may agree to let you keep the house and sign the deed over to you. Even if you cannot convince your spouse to sign the house over, you may be entitled to reimbursement if you helped make payments. You have the right to be reimbursed for:
- Down payments,
- Improvements, and
- Payments to the principal of a loan.
You cannot be reimbursed for:
- Insurance, or
If you principally paid for the property despite it being in the other person’s name, you may even be able to show a reimbursement amount that could justify negotiating to let you keep the home. At least you can get something back for the amount you contributed to the property you shared.
Let Our Experienced Family Law Attorneys Help You
Your house is more than just the place you live. Your home contains memories, good and bad, of experiences you had there. For many, the home represents being settled and stable. If you are getting divorced, you may be worried that your dreams surrounding your home are coming crashing down around you.
Determining who gets the house in a California divorce can be complex, and it’s never a foregone conclusion. With an experienced family law attorney from Pakpour Banks LLP negotiating on your behalf, you may be surprised by what your spouse is willing to compromise on. Even when getting the house is not possible, our compassionate attorneys are committed to helping you find a solution for your unique circumstances. Contact us today to learn more.