You mention three houses in your chronology, the second of which
was subject to your quit claim. But let's start by considering the
first house. This belonged to your husband before you married, so
the proceeds from its sale, including the profit, are your husband's
separate property. Under section 770 of the California Family Code, you
have no claim to the sale proceeds of the first house. The exception
is if the two of you made mortgage payments on that house from your
community funds, in which case you are entitled to a sum computed by the
Moore-Marsden formula, which takes into account the effects of interest
Note especially articles (1) and (3) of the following law.
770. (a) Separate property of a married person includes all of
(1) All property owned by the person before marriage.
(2) All property acquired by the person after marriage
by gift, bequest, devise, or descent.
(3) The rents, issues, and profits of the property
described in this section.
(b) A married person may, without the consent of the
person's spouse, convey the person's separate property.
FindLaw: California Family Code: Section 770
There is a strong presumption under California law that any property
acquired during a marriage is community property. If your husband wishes
to claim the second house as his separate property, the burden is on him
to prove that you willingly transmuted the house from community property
to separate property. Transmutation is defined under section 850 of the
850. Subject to Sections 851 to 853, inclusive, married persons
may by agreement or transfer, with or without consideration,
do any of the following:
(a) Transmute community property to separate property
of either spouse.
(b) Transmute separate property of either spouse to
(c) Transmute separate property of one spouse to separate
property of the other spouse.
FindLaw: California Family Code: Section 850
Your signature on the quit claim is not automatically considered to
be a transmutation of the house from community property to separate
property. In fact, since you purchased it with community funds and
lived in it together, there is every indication that it continued to be
community property, even though your husband is free to dispose of the
house as he wishes by virtue of the quit claim. Remember, the house is
presumed to be community property unless your husband can prove otherwise.
Another fact that benefits you is that the quit claim was arranged
solely as a financial shelter and not as a true means of transferring
the property out of the marriage. There is some room for the lawyers to
argue, but if he tries to claim the second house -- which was acquired
in marriage, inhabited in marriage, and sold in marriage -- as a separate
property, then he is at a decided disadvantage before the court.
You have said nothing to suggest that the third house is anything but
community property, so you should share its value equally in the divorce
To recapitulate, the settlement will indeed be unequal if your husband
succeeds in showing that the proceeds from the sale of the first house
were kept separate from your community funds. If he was careful to
prevent commingling, which is the joint holding and disposition of your
respective funds to the point where the court is unable to distinguish
which part belongs to whom, then he will be able to claim the sale value
of the first house as a separate property.
The second house is presumed to be community property under the
California Family Code. The quit claim is not prima facie evidence
for a transmutation of the house from community property to separate
property. It is your husband, and not you, who faces an uphill battle
on this front.
It has been a pleasure to address this question on your behalf.
Clarification of Answer by
24 Sep 2005 15:17 PDT
Your husband cannot claim a greater share of the proceeds from the
sale of the third house based on that argument. Of course some of his
money from the first house went into buying the second house, and then
from the second house into the third. But if it were possible to trace
funds back to their origin on that basis, there would be no such thing
as community property. Your husband's line of reasoning does not agree
with the law.
Community property is the governing principle in California. This
means that any property purchased during a marriage by either spouse
immediately becomes community property. The law is very clear on this
760. 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.
FindLaw: California Family Code: Section 760
It doesn't matter if your husband feels that he bore the greater
financial burden in buying the second or third house. The bottom line
is that when you are married, all real-estate purchases by either
spouse are considered communal. That is the essence of marriage.
The only exception, again, is if one spouse is able to prove that a
purchase was set aside as a separate property with the other spouse's
consent. This is clearly not true in the case of a house that you
jointly inhabited, regardless of whose money paid for it or whose name
was on the deed. Such considerations may make a difference in other
states, but not in California.
When your husband alludes to unequal distribution, perhaps he is
thinking of some other, earlier funds of his that he set aside. Or
perhaps he is consciously deceiving you as a negotiating tactic to
force some concession. One can only speculate about his motives. It is
plain to me that his legal argument, as you report it, is wrong.