Losing Your Separate Property House


Written by Scott Feig, Esq.

What do you mean the house is no longer mine? I purchased it before I married her. And all the mortgage payments were made from my salary while she stayed home with the children. How can this be?!

This exclamation is often heard in the halls of the Family Law attorney’s office. In fact, all too often a spouse, to his or her dismay, learns that the house that he/she purchased before the marriage is now partially his/her soon-to-be ex-spouse’s upon the dissolution of the marriage. The misconception that so many people share is that the house they purchased before the marriage is 100% percent their house upon divorce. But, in California, this may not necessarily be true. For many people, this is a tough pill to swallow.

So, the best place to start is to understand that California is what we call a community property state. In fact, California is one of only 9 community property states. To keep it simple, without discussing any of the exceptions, generally, community property is all property, such as homes, land, cars, and personal belongings acquired by you or your spouse during the marriage. Note the operative term here—during. Generally, and to keep this very simple, community property is often split up between the spouses at divorce.

Thus, the flip side of this is to understand the other type of property—separate property. You can see where this is going. Generally, separate property is all the property you acquire before the marriage. Again, note the operative term—before. Generally, and to keep it simple, people often keep their separate property at divorce.

So, with this understanding, it makes sense if you are exclaiming: “My house that I purchased before marriage is mine, right?!” To your dismay, possibly not. Up until the date of marriage, the house was your separate property. But let’s look closely at the mortgage payments. If you paid the mortgage from your salary, note that California considers your salary community property, absent an agreement to the contrary, because your effort to earn it is a community effort, even when the other spouse stayed home with the children. Again, this may be a tough pill to swallow.

Thus, during the marriage, when you paid the mortgage on “your” house, the community began to earn a percentage in the home. Some of it depends on how much you paid down the mortgage during the marriage. The community may have a 10%, 20%, 30% or even much more interest. And, remember what was said above, generally community property is divided at divorce. So, at divorce, you may find yourself having to split part of the value of “your” house with your ex-spouse.

Please note that the above information was kept in simplest form to help give you a primer of a situation that surprises many people at divorce. As many areas of law, the complexity is understood and handled well by an attorney. Thus, it’s helpful to know that an experienced Family Law attorney is a phone call, or email, away to help provide guidance both before the marriage and at the difficult time of dissolving the marriage.

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