Over the years, people have asked a lot of questions about real estate. Folks ask and how California Family Law affects real estate rights between couples – both married and unmarried. Here are a few people most frequently ask us.
If I own the property before we marry does she still get it if we break up?
No. It is key to distinguish “community property” from “separate property”.
California Family Code §761 provides that “except as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property.”
But, §770 of the California Family Code provides that separate property of a married person includes the following:
- all property owned prior to the marriage; (2) all property acquired after the marriage by gift or inheritance; and (3) all rents, issues
- all property acquired after the marriage by gift or inheritance; and (3) all rents, issues and profits of any separate property asset.
- all rents, issues and profits of any separate property asset.
When a couple divorces in California, the court will divide all of the community property in half. The courts will award 100% of the separate property to its respective owner. This means that if you own property prior to marriage, it remains your separate property even after you break up. However, there are some exceptions to this rule. For instance, if you commingle your assets you can make an asset community property. Also, if you make a down payment on a piece of real estate with separate property funds prior to the marriage, but throughout your marriage, you make mortgage payments from your community wages, your spouse will have a community interest in that property known as a Moore-Marsden interest. Court calculate this interest with a formula based upon the amount of loan principal paid from community funds. However, you will get your separate property down payment back.
Does it matter that we married in another state but bought property here?
California divorce law makes no distinction regarding where a the marriage occurs. The key is whether, at the time of divorce, the State of California can claim jurisdiction over the marriage and the property. In other words, you must ask if you are domiciled in California. If you are, then the property you acquire while married is “quasi-community property” unless you can show that the property was purchased with your separate property funds. The distinction between community and quasi-community property is academic because the courts treat both alike under community property law for the purposes of marriage and divorce.
What happens to the property if we marry here but move to a different state and leave this one a rental?
The community still owns it and the court will divide it upon divorce. You may need to check with an attorney in the other state to see how the property would be classified there.
How long do we have to stay together before my spouse gets half my stuff?
All property that you acquire prior to the marriage remains your separate property forever. The only exceptions are when you “gift” your separate property to the community with a document called a “transmutation” or you so commingle the separate property with the community property that a court can’t reasonably separate it – as is sometimes the case with bank accounts.
I legally married my spouse, but I haven’t seen him in 4-5 years and I want to buy with someone else.
If I own this house with my parents and I marry my spouse does she get part of my half?
If I bought a house a week or two before we legally divorced, does she still get half?
The question to ask is not when the divorce is legally finalized, but when you were separated. The law defines your date of separation as that day on which it was clear that the marriage was irretrievable. That could be the date someone moved to a separate residence. It could be the date someone filed a Petition for Divorce. If the house was acquired after the date of separation, it will be considered separate property. (Beware: if you use community property funds to purchase the house or to make a down payment, you risk giving your ex-spouse an interest. At at the very least you may have given your ex a right to reimbursement.)
BE CAREFUL! Adding a spouses name to the title of separate real property (i.e., a deed) will change it to community property. However, a right to reimbursement of the separate property investment will still stand.