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Q: Bought a house with girlfriend - it's separating time! ( Answered 5 out of 5 stars,   1 Comment )
Subject: Bought a house with girlfriend - it's separating time!
Category: Relationships and Society
Asked by: gunther-ga
List Price: $75.00
Posted: 10 Nov 2002 12:19 PST
Expires: 10 Dec 2002 12:19 PST
Question ID: 104717
We live in CA, together for over 10 years, not married. Recently we
bought a house which she paid $100,000 down for, but we are both
owners. Purchase price $450,000. All paperwork, the deed, mortgage,
everything is in our both names as shared owners, because it was my
good credit that secured a super mortgage.
Now it's separating time and I don't know how to handle this situation
legally correct. I want half of the house, since I am paying half of
the mortgage and I am 1/2 owner. Knowing her well, she will probably
argue that she paid the $100,000 down, I didn't pay a penny down, and
therefore I get nothing. Obviously she has all the money in the
relationship. Funds to pay me out are available.
Subject: Re: Bought a house with girlfriend - it's separating time!
Answered By: weisstho-ga on 10 Nov 2002 16:46 PST
Rated:5 out of 5 stars
Hello Gunther,

Thanks for visiting us.  Firstly, I am sorry to hear of your breakup
after such a long term relationship.

Fortunately, the answer to your puzzle should not be terribly
difficult to develop.

1.  Home purchased for $450,000
2.  Cash equity provided by ex-girlfriend:  $100,000
3.  You and ex-girlfriend were the mortgagors
4.  Title is in some form of joint ownership, though it is unclear as
to whether the title is held in tenancy-in-common, or joint tenancy.

Although one might hope that a dispute such as this could be settled
amicably and without the travails of a law suit, the unfortunate
reality is that all too often our courts are a necessary means of
resolving the dispute.

A dispute of this nature is called an action for “PARTITION” which
simply means, as its name implies, a division of property, ordered by
the court, and an accounting of the interests of the property.

To summarize the California law on this topic, the WORST case scenario
for you would seem to be that you are entitled to one-half of the net
equity in the home. That is to say that if the home were sold for
$500,000, subtract the outstanding mortgage balance (let’s assume
$330,000) and subtract her downpayment:  $500,000 - $330,000 -
$100,000 = $70,000 divided by 2 = $35,000 for you.

The BEST case scenario is that you would receive one-half of the TOTAL
equity:  Home sold for $500,000 minus the outstanding mortgage of
$330,000 = Equity of $170,000 divided by 2 = $85,000 for you.


There is an interesting California case originating in San Bernadino
County, that is on topic, and I would like to cite from the opinion in
that case.  The California Court of Appeal, Fourth District, Division
2, in 1986 decided the case of Arther Milian versus Sylvia DeLeon. 
Although the case cannot be found on line, it can be found at any law
library using the following citations:  Volume 226 California
Reporter, page 831.

Milian and Sanchez began dating in 1970 and continued for eight years.
In 1977 the couple jointly purchased a home; they shopped for the home
together, and purchased the home together, both providing financial
statements for the mortgage. Both parties signed the purchase
agreement and they were both on the deed, as joint tenants. The woman
did not move into the house in this case, as she refused to move in
full-time until after they were married, although she had a key and
spent every weekend at the home.
Both parties contributed money for the down-payment (she gave $700 (or
more, according to her) and he gave about $6,300 most of which he
borrowed from his father.)  They purchased furniture together and
shared other expenses, such as property taxes and insurance.
When the couple stopped dating, the man filed a court action. The
woman filed her own action claiming that she owned an undivided
one-half interest in the property.

The court’s specific holdings in this case were as follows:

1.  Unmarried persons have a right to contract with each other with
respect to their property and financial arrangements.

2.  If a court determines that a “true joint tenancy exists”, the
court may not order reimbursement or contribution on account or
differences in the amounts the parties have paid toward initial
acquisition of the property, although an agreement between joint
tenants for reimbursement upon sale of property can be enforced.

3.  If the co-owners agreed to own and divide property equally,
irrespective of the exact dollar amounts each contributed to
acquisition, improvement, maintenance and preservation of property,
then the division of property between joint tenants is not unfair and
does not amount to forfeiture.

4.  On partition, the court is NOT required to ascertain reasonable
rental value of property and balance that against joint tenant's
expenditures for mortgage payments, insurance, taxes and maintenance
after separation of non-married co-owners of house, as earnings of
parties were not community property and co- owner's "separation" was
irrelevant except as to issue of ouster.

5.  The fact that an unmarried joint tenant was placed in better
position than that person  would have been in if joint tenants had
been married to each other was immaterial for division in accordance
with agreement of parties, regardless of community property rules
regarding reimbursement of separate property contributions.

No question that you need an attorney on this one. There are some deep
and complex property law questions involved.  Given those
complexities, I would make sure that you employ an attorney that is
well versed in California real property law – not a generalist.
And the sooner the better.  Gaining the momentum by bringing the
partition action first would be a positive step for your interests.
I would suggest that you take the following with you when you meet
with your attorney:  copies of all closing documents, copy of the
deed, copies of any cancelled checks that you have for taxes,
improvements, mortgage payments, or any other disbursements that you
have made for the benefit of the ownership of the home.  A summary of
all of these payments would be much appreciated by the attorney.
Here is a wonderful example of a complaint to be filed in California
for Partition, as provided by the nice folks at Kinsey Law Office in
Seal Beach:

Best of luck, Gunther.  If there is any clarification that I can
provide, please click the button requesting clarification, and I will
be only too happy to get right back to you.


Search strategy:
California Civil Code:

Request for Answer Clarification by gunther-ga on 10 Nov 2002 17:38 PST
Thank ou very much for your very detailed answer. I appreciate all the
hints and advice.

One more question: Would the fact that I have worked hard for 11 years
in her business, for very little money, (but a company car and
rent-free until we bought the house together), all for a promise to
marry me eventually, have any positve effect for me in court?

Thanks again!


Clarification of Answer by weisstho-ga on 10 Nov 2002 18:24 PST
Yes, Gunther, it could. Probably not, but it could. 

The case that I mentioned to you, Milian versus DeLeon, had quite a
detailed discussion of the "contract" issues that existed between the
two parties (they were too detailed to place in my answer, but you
might find interesting reading). These contract issues are important,
particularly where the parties are "joint tenants" and one can relate
the employment aspect of the contract with the financial arrangements
for the home.

Now, on the other hand, if you and your ex- were tenants in common,
the issue of the contract MAY not be quite as important.

Again, an attorney is critical here. As you prepare the material for
the attorney that I outlined in the main answer, also prepare a
chronology of the events surrounding your employment:  how many years,
how many hours, what compensation did you receive in cash, and how
much did you receive in benefits (such as the car).  Try hard to
recall any conversations where the two of you discussed benefits and
obligations of the nature of a contract (if you do the following, I
will do this for you.)

Contracts, of course, do not always have to be in writing. Oral
contracts are very common, particularly in employment situations. 
Even where the law requires a written contract, there are defenses
available to you that will fortify your position. Again, the attorney
will have a handle on this.

The best advice that I can give you, to summarize, is to bring
together all of your evidence.  Checks, recollections of
conversations, chronologies of events, copies of documents, etc. The
stronger your evidence, the stronger your case.

You have a very good shot here at getting your fair share.  No
question about it.


Clarification of Answer by weisstho-ga on 10 Nov 2002 18:48 PST
Here is the entire text of the case for your reference:

ARTHUR MILIAN, Plaintiff, Cross-defendant and Appellant, v. SYLVIA ANN
SANCHEZ DE LEON, Defendant, Cross-complainant and Respondent

No. E000512 

Court of Appeal of California, Fourth Appellate District, Division Two

181 Cal. App. 3d 1185; 226 Cal. Rptr. 831

June 4, 1986 

 Plaintiff and cross-defendant Arthur Milian appeals from an
interlocutory judgment of partition, in which the trial court ordered
certain property sold and the net proceeds of sale divided equally
between Milian and his co-owner, defendant and cross-complainant
Sylvia Ann Sanchez De Leon (Sanchez). On appeal, Milian contends the
court prejudicially erred in applying Marvin v. Marvin (1976) 18
Cal.3d 660 [134 Cal.Rptr. 815, 557 P.2d 106] to the circumstances of
this case. Alternatively, he urges the court's finding of an implied
contract between the parties for equal ownership and equal division of
 the property was not supported by substantial evidence. Finally,
Milian requests, in the event the matter is reversed and remanded,
that we issue directions to the trial court concerning the calculation
of credits claimed to be due him in the accounting he asserts is
required and in respect to disposition of the personal property in


Milian and Sanchez began dating in 1970. Their relationship continued
for eight years but ended without marriage. Sanchez testified the two
became engaged in 1976 and set a marriage date for approximately one
year later. According to Sanchez, Milian often referred to her as his
fiancée when they were together with others socially. Sanchez stated
repeatedly at trial that the couple's sharing of financial resources
during their dating relationship proceeded upon the shared
contemplation that the two would eventually marry.

Milian denied ever proposing marriage or otherwise discussing plans to
get married. Milian stated he asked Sanchez to live with him in order
to discover whether the relationship was "going to work out or not."
Sanchez, however, refused to live with him outside of marriage.

In late 1977, the couple jointly purchased  a house which is the
subject real property in the partition action. They shopped for the
house together; Milian testified they searched for a home in which
they could live together while Sanchez stated they wanted to find a
house in which to live after marriage. Milian paid the $ 500 deposit
required to reserve the vacant lot upon which the house was to be
constructed and testified he made the loan application in his own
name. Sanchez was on vacation at the time of the $ 500 payment, but
she testified both parties provided financial  statements to obtain
the loan. Both parties' names appear signed to the offer and both
parties signed escrow instructions. The eventual grant deed was taken
in the names of both parties as joint tenants. Sanchez testified that
to her "joint tenancy" meant the two would be partners in the property
prior to marriage, while Milian testified he did not understand the
significance of such designation and believed only that Sanchez would
live with him and share expenses.

Only Milian occupied the house after its purchase. Although Sanchez
fully participated in furnishing, decorating and landscaping the house
and provided funds for these purposes, she refused to move in without
marriage and never did occupy the house as a full-time resident. She
had a key to the house and was there almost every weekend until the
couple separated in late 1978.

Most of the couple's testimony concerned numerous exhibits which
showed the extent to which they had commingled their property and
collectively incurred expenses on the house and otherwise. Sanchez
testified to providing $ 700 to Milian to help purchase a $ 7,000 bank
money order for the down payment on the property; Milian apparently
obtained most of the balance for the down payment from his father.
Sanchez's cross-complaint for partition, however, alleges Milian's
contribution to the down payment was only $ 4,950. The couple
purchased more than $ 2,000 worth of furniture. Milian made the down
payment; Sanchez later contributed $ 1,200. The monthly mortgage
payments were paid by Milian out of his savings account. However,
Sanchez testified that over eight months in 1978 she deposited to that
savings account at least $ 4,300, including a $ 2,100 annual bonus
from her employer and an $ 1,100 tax refund.

In addition, Sanchez testified she and Milian agreed she would make
the monthly loan payments on Milian's Oldsmobile automobile in lieu of
her responsibilities on the mortgage for the real property. Sanchez
drove Milian's automobile for a considerable period because Milian had
a longer commute to work and could get better mileage in Sanchez's
Toyota; she testified that she signed ownership of her automobile over
to Milian to get a decreased insurance rate because he was over 25
years of age. Milian testified to paying the majority of car insurance
payments, while Sanchez stated they both paid for insurance but he
wrote the checks. The purpose of all this was to have more money
available to pay the mortgage payments and other expenses relating to
the house and improvements.

Milian met the majority of property tax and insurance payments on the
property for which Sanchez apparently only paid one month of property
taxes and one 6-month premium payment for fire insurance.

In respect to other decoration and improvement, Sanchez paid $ 560 on
drapes and incurred a $ 900 charge on her credit card for upgrading
the quality of carpet for the house. The two shopped for linens and
kitchen supplies together, evidently sharing these expenses. Sanchez 
also made considerable nonfinancial contribution to the decoration of
the house, spending many weekends landscaping and weeding, shopping
with Milian for various home improvements, and purchasing the large
patio slab for behind the house. Sanchez repeatedly testified her
efforts in decorating the interior and exterior of the house were
based on the shared assumption among the parties that the two
eventually would marry and would live together in the house as husband
and wife. Sanchez also frequently stated at trial that the couple's
extensive financial entanglement was based upon an agreement that the
two would be equal partners in owning the home, sharing all of their
property and resources, and preparing for marriage.

The couple stopped dating in late 1978. Milian filed an action to
quiet title in the subject property and for declaratory relief.
Sanchez answered the complaint and filed her own cross-complaint
seeking a declaration that she owned an undivided one-half interest in
the property, a partition by sale granting her half the proceeds,
compensation for Milian's use of the real and personal property in
dispute, and a fair division of the personal property acquired by the
parties during their relationship.

During trial, Milian attempted to prove, through the introduction of
numerous exhibits showing his various expenses during the pendency of
the relationship, that he was due compensatory credits representing
his contributions to the aggregated pool of the couple's financial
resources. In response, Sanchez introduced evidence to support the
central assertion of her cross-complaint, i.e., that in anticipation
of marriage the couple had agreed to pool their resources or some of
them to acquire the property in dispute and had agreed to own it
equally irrespective of their individual contributions to the purchase
price and expenditures for improvements to and maintenance and
preservation of the property.

The court's first statement of decision found the property was held in
a true joint tenancy. After determining there was no wrongful ouster
of Sanchez and that Milian was therefore not accountable for
reasonable rental value, the court stated: "[Plaintiff] is entitled to
reimbursement to the extent of one-half of all sums expended by him in
the reasonable maintenance and protection of the property. . . . Sums
reasonably expended by plaintiff for the maintenance and protection of
the property equal $ 20,431.68, entitling plaintiff to a credit of $
10,215.84. Other expenditures made by plaintiff, and most of those
made by defendant, were made in recognition of, and in furtherance of,
their personal relationship with each other and not reasonably related
to the improvement and upkeep or protection of the real property in
question. [ para. ] . . . Likewise, defendant Sanchez is entitled to
reimbursement for one-half of her expenditures made to maintain,
improve or protect the property in the amount of $ 5,402.00, entitling
her to a reimbursement credit in the amount of $ 2,701.00 from

Both parties filed objections to the original statement of intended
decision and the court held a hearing at which the parties gave
additional testimony concerning their various expenditures in
questioning by the court. In argument, Sanchez's attorney further
urged that the agreement between the parties was to own and divide the
property equally, making an accounting unnecessary.

The court thereafter rendered an interlocutory judgment of partition
by sale of the real property in which it altered its original
decision, ordering the proceeds of sale to be divided equally between
the parties without any accounting, reimbursement or contribution. In
its "Modified Notice of Intended Decision" n1 the court stated: "A
careful review of the numerous exhibits consisting of checks, credit
receipts, purchase receipts, tax bills, automobile repair invoices,
together with the explanations regarding each of those expenditures
demonstrates a relationship that far exceeds the normal arms length
relationship entered into by persons who agree to jointly hold
property . . . . [A] review of those exhibits and the testimony in
explanation thereof illustrates a relationship that is far more
intimate, complex and intertwined than casual dating. It appears that
both Arthur and Sylvia spent money jointly to accomplish all of the
following purposes: purchase real property and build a house, furnish
the interior of the home, improve the exterior of the home, landscape
the property, purchase books for schooling for each other, cash
transfers made each to the other, Christmas party, vacation expenses
for each other's family members, payment on mortgage, taxes and
insurance on the real property, each other's car payments, repair of
each other's vehicles, credit purchases made to benefit each other and
the real property, equipping the home with linen, pictures and other
accoutrements. Credit obligations were incurred by the parties jointly
which amounted in some instances to expenditures exceeding $ 1,800.00.
The testimony of the parties discloses that, in some instances,
payments on motor vehicles was [sic] made because the opposite party
was making payments on the mortgage. [ para. ] In short, these parties
treated both each other and the property in which they had a mutual
interest in a fashion far different than the average real property
owner or owners. There was, in fact, an implied contract by and
between Arthur and Sylvia to treat their property equally and to
divide the same equally. Accordingly, it is the intent of the Court to
divide the real property in question in conformity with the
instructions of Marvin v. Marvin, 18 Cal.3d 660. [ para. ] Plaintiff,
Arthur, is not entitled to credit for payments made on the house after
separation in as much [sic] as the payments approximate the fair
rental value of the premises. The other individualized expense items
represented by the numerous exhibits are evidence of the existence of
the implied contract mentioned herein and are not to be accounted for
individually or separately in this order. The  property is ordered
sold and the proceeds divided equally by and between the parties after
payment of costs of sale."
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - -
- - - - -

n1 Apparently this was a misnomer. Most likely the document was
intended to be a modified statement of decision.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - -
- - - - -

1. Application of the Marvin Decision 

Milian's initial contention is: "The Marvin decision has no
applicability to this case, in that the present case does not concern
two cohabitating adults who were living in a meretricious
relationship." Whether or not this contention is correct, it is of no

Milian is correct of course that Marvin was a case in which it was
alleged that cohabitation and a meretricious relationship both
existed. But the effect of Marvin was simply to place parties involved
in such a situation in the same position as "any other unmarried
persons." ( Marvin, 18 Cal.3d at p. 682.) The court explained that
"adults who voluntarily live together and engage in sexual relations
are nonetheless as competent as any other persons to contract
respecting their earnings and property rights." ( Id. at p. 674.)
Thus, if the absence of cohabitation and/or a meretricious
relationship in the case at bench renders the Marvin decision less
than fully applicable, it makes no difference because in that event
the parties here are "other unmarried persons" "competent . . . to
contract respecting their earnings and property rights." ( Id. at pp.
672, 674; accord Trutalli v. Meraviglia (1932) 215 Cal. 698, 701-702
[12 P.2d 430]; Croslin v. Scott (1957) 154 Cal.App.2d 767, 771-772
[316 P.2d 755]; Bridges v. Bridges (1954) 125 Cal.App.2d 359, 363 [270
P.2d 69].)

It is of course true that cohabitation and the rendition of
housekeeping and similar services may be an important factor in the
determination as to whether or not an implied agreement or "tacit
understanding" ( Marvin, 18 Cal.3d at p. 684) exists. However, the
only limitation upon the right of unmarried persons to contract with
respect to their property and financial arrangements is that the
contract must not be illegal or against public policy. As stated
repeatedly by the court in Marvin: "Agreements between nonmarital
partners fail only to the extent that they rest upon a consideration
of meretricious sexual services" ( Id. at pp. 670-671); "a contract
between nonmarital partners is unenforceable only to the extent that
it explicitly rests upon the immoral and illicit consideration of
meretricious sexual services" ( Id. at p. 669, italics in orig.). In
any event, each case will turn on its own facts, and cohabitation is
not a prerequisite to the finding of an implied agreement between
unmarried persons concerning their property.

Milian apparently recognizes this, because his next complaint is that
the court failed to treat him and Sanchez as any other unmarried
persons. The argument is  that the evidence establishes, and indeed
that the trial court found in its original statement of decision, that
the parties were joint tenants and the court failed to treat the
parties as other joint tenants when it refused to provide for an
accounting and reimbursement or contribution even though the parties'
contributions to the purchase price of the property and their
subsequent expenditures for improvement, maintenance and preservation
of the property were unequal. This contention, however, fails to take
account of the implied agreement between the parties found by the
trial court.

It is of course correct that a cotenant who pays taxes, trust deed
payments or other charges against the property or expends money for
the preservation of the property or who, with the assent of his
cotenant, makes improvements to the property is entitled to
contribution from the cotenant, and on partition by sale is entitled
to reimbursement for those expenditures before division of the
proceeds among the property owners. (See, e.g., Willmon v. Koyer
(1914) 168 Cal. 369, 374 [143 P. 694]; Southern Adjustment Bureau v.
Nelson (1964) 230 Cal.App.2d 539, 541 [41 Cal.Rptr. 148]; Shenson v.
Shenson (1954) 124 Cal.App.2d 747, 754-755 [269 P.2d 170]; Combs v.
Ritter (1950) 100 Cal.App.2d 315, 320 [223 P.2d 505]; 3 Witkin,
Summary of Cal. Law (8th ed. 1973) Real Property, §§ 214-216, pp.
1947-1948.) However, what Milian fails to deal with is that the court
ultimately declined to make an accounting and order reimbursement in
this case because it found an agreement between the parties to own and
divide the property equally irrespective of the exact dollar
contributions of each party to the purchase price or to the subsequent
improvement, maintenance, or preservation of the property. The parties
were perfectly competent to make such an agreement and the critical
question on appeal is whether the court's finding of such an agreement
is supported by substantial evidence.

Milian accentuates the finding of the court in its original statement
of decision that in purchasing the property the parties intended and
created a true joint tenancy, as if the court's subsequent
determination the property should be divided equally is inconsistent
with the original finding of joint tenancy. It is true of course that
in the original statement of decision the court had indicated that
both parties were entitled to reimbursement for some of their
expenditures, resulting in a net credit to Milian, and the court's
ultimate determination that no accounting or contribution was required
was certainly at odds with that. However, given the agreement found by
the court, its original finding of joint tenancy is not inconsistent
with its later determination that no accounting or contribution was
required. Indeed, even absent the agreement found by the court,
insofar as any disparity in the contributions of the parties to the
initial acquisition of the property is concerned, the determination
there was a true joint tenancy supports the court's determination that
there need be no accounting or contribution.

Milian cites two cases for the proposition that upon partition a
cotenant who has paid a disproportionate portion of the purchase price
is entitled to reimbursement of the portion disproportionately paid:
Demetris v. Demetris (1954) 125 Cal.App.2d 440 [270 P.2d 891] and
Donnelly v. Wetzel (1918) 37 Cal.App. 741 [174 P. 689]. However,
neither case holds or indicates that rule is applicable in a case
involving true joint tenants. Nor indeed have we discovered a single
case in which a true joint tenancy was found and yet an accounting and
contribution was ordered because of disproportionate contributions by
the parties to  the original purchase price. In Demetris a joint
tenancy deed was involved, but the action was for reformation of the
joint tenancy deed and partition, and the court "ordered the deed
reformed so as to become a tenancy in common deed" ( Demetris, supra,
125 Cal.App.2d at pp. 442-443) before it ordered various
reimbursements. So the Demetris case in the final analysis is a case
dealing with the rights of tenants in common, not joint tenants.

Donnelly v. Wetzel, supra, 37 Cal.App. 741, 742, involved tenants in
common from the outset.

Though the discovery gives us some discomfort in terms of legal
symmetry, it appears to us that once the court in a partition action
has determined that a true joint tenancy exists, it may not order
reimbursement or contribution on account of differences in the amounts
the parties have paid toward the initial acquisition of the property.
n2 Of course, if one joint tenant has advanced funds on behalf of the
other and there is an agreement between them for reimbursement in the
event of sale of the property, that agreement can be enforced by the
court. ( Donnelly v. Wetzel, supra, 37 Cal.App. 741.) However, by
definition joint tenancy ownership means equal ownership (see Civ.
Code, § 683), n3 and in the absence of an agreement for reimbursement
we are unaware of any authority which authorizes reimbursement on
account of unequal contributions to the down payment.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - -
- - - - -

n2 Our discomfiture is increased by our observation that upon
dissolution of a partnership or joint venture an accounting for and
reimbursement of capital contributions would occur in the absence of
an agreement otherwise. (See Corp. Code, § 15040.)

n3 Civil Code section 683 reads in pertinent part: "A joint interest
is one owned by two or more persons in equal shares, by a title
created by a single will or transfer . . . ." (Italics added.)
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - -
- - - - -

Of course, the significance of the disparate treatment of joint
tenants and tenants in common is more theoretical than real because in
a suit for partition all parties' interests in the property may be put
in issue regardless of the record title (Code Civ. Proc., § 872.610;
Kershman v. Kershman (1961)  192 Cal.App.2d 23, 26 [13 Cal.Rptr. 290];
Demetris v. Demetris, supra, 125 Cal.App.2d 440, 444-445; Cosler v.
Norwood (1950) 97 Cal.App.2d 665, 666 [218 P.2d 800]), and the court
may consider the fact the parties have contributed different amounts
to the purchase price in determining whether a true joint tenancy was
intended ( Kershman v. Kershman, supra; Cosler v. Norwood, supra). If
a tenancy in common rather than a joint tenancy is found, the court
may either order reimbursement (see Demetris v. Demetris, supra, 125
Cal.App.2d 440, 445) or determine the ownership interests in the
property in proportion to the amounts contributed (see Kershman v.
Kershman, supra, 192 Cal.App.2d 23, 26-27). It appears to be otherwise
in respect to true joint tenancies, however, where by definition
ownership of the property is equal.

The burden of all this is twofold: first, there is no inconsistency in
the court's finding of joint tenancy and its ordering equal division
of the property. Secondly, when the contributions to the down payment
on the property are disregarded, the disparity in the potentially
reimbursable contributions of these parties is  not nearly so great as
Milian contends. As observed in the statement of facts, although
Milian paid all of the mortgage payments out of a savings account in
his name, Sanchez contributed substantial sums of money for deposit to
that account.

In respect to the claimed inconsistency, Milian also points out that
the interlocutory judgment declares that Milian and Sanchez own the
property equally as tenants in common. However, again we discern no
inconsistency. An interlocutory judgment of partition has the effect
of severing a joint tenancy so that thereafter the owners are tenants
in common. (See Hammond v. McArthur (1947) 30 Cal.2d 512, 515 [183
P.2d 1]; Teutenberg v. Schiller (1955) 138 Cal.App.2d 18, 22 [291 P.2d
53].) The judgment quite properly declared the parties had become
tenants in common.

We come then to the question whether the court's finding that the
parties agreed to own and divide the property equally irrespective of
the exact dollar amounts each contributed to the acquisition,
improvement, maintenance and preservation of the property is supported
by substantial evidence. We conclude it is.

While Milian points to a number of inconsistencies in the positions
taken by Sanchez from time to time and in her testimony, these created
at most conflicts in the evidence, and Sanchez's testimony at trial
taken together with the actions of both parties fully supports the
trial court's finding of an implied agreement to own and divide the
property equally, irrespective of the amount contributed by each to
its acquisition, improvement, maintenance and preservation. Sanchez
testified the reason she transferred title to her automobile to Milian
was that he was over 25 years old and could obtain a cheaper rate on
automobile insurance thereby making more money available for the
mortgage payments and other expenditures relating to the house.
Indeed, the entire arrangement by which Milian drove Sanchez's more
economical automobile, perhaps as much as 70,000 miles, and by which
Sanchez drove Milian's vehicle and paid for its insurance and repairs,
was to make more money available for expenditures relating to the
house. In fact, Sanchez testified the parties agreed that this
arrangement would be in lieu of her contributing toward the mortgage
payments otherwise.

The trial court obviously did not credit Milian's testimony as  to how
the property came to be taken in the names of both parties as joint
tenants nor his testimony that he did not understand what a joint
tenancy meant. The arrangement between the parties viewed in its
entirety, including Sanchez's turning over to Milian substantial sums
of money including her $ 2,100 bonus and her $ 1,100 tax refund in
1978, and also including Milian's occupancy of the property and
payment of the monthly mortgage payments, insurance and taxes, gives
rise to a strong inference that each party agreed to contribute what
they could and that irrespective of the inequality of their
contributions the property would be owned equally.

Quite revealing was the response of Sanchez to questions by the court
in the proceedings following issuance of the court's original
statement of decision. The court asked whether there was some
agreement that Sanchez would contribute toward the house payment. She
replied: "We had agreed before the house was purchased." The court
then asked: "Was there some agreement as to how much each of you would
pay?" Sanchez answered: "No." The court then asked Sanchez with
respect to a number of the exhibits before it: "How did you select the
amounts  to be paid on these checks?" Sanchez answered: "At the time I
was paying for his car, the car payment and some other bills that were
of his. Whenever I had x number of dollars to spare I would, you know,
put it . . . in the savings account." The irresistible inference is
that each party was to contribute whatever they could toward
acquisition, improvement, maintenance and preservation of the

Milian makes a great deal of his testimony that after Sanchez
discovered he was seeing another woman she demanded the return of "her
property" or "the property she had bought" together with the money she
had contributed. However, Sanchez's version was somewhat different.
She testified she demanded only certain items of furniture for her own
use together with her share of the equity. She testified she did not
consider the few items of furniture she removed from the house as
anywhere near an equal division of the furniture. As an appellate
court we are required to accept the version most favorable to the
judgment. However, it makes little difference, because whatever it was
that Sanchez demanded, it does not necessarily follow that she was
demanding everything she was legally entitled to. In other words, what
Milian refers to is just one more conflict in the evidence, which on
appeal can avail him nothing.

In conclusion, the record shows the parties anticipated marriage and
took title to the property as equal owners in joint tenancy. They both
contributed significant financial resources and nonfinancial efforts
to the acquisition of the home, furnishings, appliances, improvements,
decoration and landscaping. Quite clearly, they intended to own the
property equally and there is substantial evidence that each was to
contribute what he or she could and that both intended the property to
be owned equally irrespective of inequality in the amounts contributed
by each.

Milian's remaining contentions require only brief discussion. They are
devoid of merit. First, he asserts: "The trial court's finding of an
implied contract between the parties to treat and divide all their
property equally leads to the absurd conclusion that Appellant was
contractually bound to share his entire income and assets with
Respondent at all relevant times . . . ." (Italics in orig.) Not so.
The contract found by the court was one concerned only with the
acquisition, improvement and maintenance of the particular house in
question and the furniture and furnishings purchased for use in that
house. It did not relate to or encompass all the property of the
parties nor the income of either. Thus, there is no inconsistency
whatever in the fact that the parties maintained separate checking and
savings accounts in their individual names and that neither had direct
access to the accounts of the other.

Next, although Milian first chides the trial court for its statement
it intended to divide the property "in conformity with the
instructions of Marvin v. Marvin" because, as he points out, the
Marvin decision in no way gave any instructions with respect to
division of property, Milian also complains that the trial court
failed to comply with Marvin's mandate that property acquired by
nonmarital partners be divided "fairly." Not only is Milian's position
inconsistent, it is also incorrect. The trial court ordered division
of the property in accordance with the implied agreement between the
parties. Apparently it perceived no unfairness in that. Neither do we.

Milian next contends the result reached amounts to a forfeiture. We do
not agree. In the first place, as already observed, we do not view the
disparity in economic contributions nearly as great as does Milian.
But in any event, the division of the property ordered by the trial
court is a result of the implied agreement between the parties. Where
the consideration for an agreement is adequate, courts do not normally
inquire into the equality of the bargain. How would a court determine
which party got the better of the bargain here where not only money
but also services and the intermingling and use of other property was
involved and Milian alone had actual use of the property from the time
of its purchase to the present time?

Milian also takes issue with the court's failure to ascertain the
reasonable rental value of the property and balance that against his
expenditures for mortgage payments, insurance, taxes and maintenance
after the "separation" of the parties. n4 No such determinations were
required. Separation is significant in marital cases because normally
before separation the earnings of the parties constitute community
property (Civ. Code, § 5110) and after separation the earnings of each
party constitute their separate property (Civ. Code, § 5118). Here,
the earnings of the parties were never community property and the
parties' "separation" was irrelevant except to the issue of ouster as
to which Milian prevailed. The division of the property is governed by
the implied agreement found by the court, and that agreement did not
terminate upon "separation" of the parties.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - -
- - - - -

n4 Milian does with considerable justification criticize the court's
use of the word "separation" in its modified notice of intended
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - -
- - - - -

Finally, Milian contends the result reached by the court places
Sanchez in a better position than she would be in if the parties had
been married. There are two equally dispositive answers. The first is,
so what? If the division of the property is in accordance with the
agreement of the parties, the fact that some other division might have
resulted from some other relationship or agreement is immaterial. The
second is that this contention is based  largely if not exclusively on
the assumption that Civil Code section 4800.2, providing for
reimbursement of separate property contributions to community
property, would be applicable here if these parties were married. That
assumption, however, is incorrect. Civil Code section 4800.2 may not
be constitutionally applied to transactions which resulted in the
creation of vested rights prior to its effective date. ( In re
Marriage of Fabian (1986) 41 Cal.3d 440 [224 Cal.Rptr. 333, 715 P.2d
253]; In re Marriage of Lachenmyer (1985) 174 Cal.App.3d 558, 563-564
[220 Cal.Rptr. 76]; In re Marriage of Kahan (1985) 174 Cal.App.3d 63,
69-70 [219 Cal.Rptr. 700].) n5
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - -
- - - - -

n5 We are aware of the recent legislation providing in essence that
the 1983 amendment to Civil Code section 4800.2 is to be applied to
all cases filed after January 1, 1984 (Stats. 1986, ch. 49, § 1, p.
--) but we are not required to consider it on this appeal because this
case was filed on January 15, 1979.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - -
- - - - -

We have no occasion to discuss any question relating to the division
of the furniture and furnishings acquired by the parties because the
interlocutory judgment of partition does not purport to adjudicate the
parties' rights with respect thereto.

The interlocutory judgment of partition is affirmed.
gunther-ga rated this answer:5 out of 5 stars
Loved the speed and the clarity of the answer. Thank you very much.

Subject: Re: Bought a house with girlfriend - it's separating time!
From: richard-ga on 10 Nov 2002 13:06 PST
Lots of discussion, but little in the way of clear answers:

When legal protections are few... Breaking Up Is Hard to Do

Breaking Up Is Hard to Do

Property Division Issues in Non-Marital Relationships

Google Researcher Richard-ga

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