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Q: Divorce ( Answered,   2 Comments )
Question  
Subject: Divorce
Category: Relationships and Society > Law
Asked by: 1542-ga
List Price: $20.00
Posted: 20 Jul 2006 15:37 PDT
Expires: 19 Aug 2006 15:37 PDT
Question ID: 748130
My question is as follows: Is my home, or the equity accrued on the
home since I married,  community property?

I live in California and have been maried for four years and have
owned my home for the past 15 years.  My wife and I do not co-mingle
funds. I have been making all mortgage payments, paying all utilities
and paying for home improvements out of my own funds. I have
refinanced the home twice and in both instances my wifes name was not,
and never has been, included on the deed.
Answer  
Subject: Re: Divorce
Answered By: keystroke-ga on 20 Jul 2006 16:01 PDT
 
Hi 1542,

Your house is considered "separate property" since you owned it before
you were married.

http://www.divorcenet.com/states/california/cafaq03

"California law defines community property as any asset acquired or
income earned by a married person while living with his or her spouse.
Separate property is defined as anything acquired by a spouse before
the marriage, or during the marriage by gift, d evise or bequest. The
law requires that the community estate be divided equally if there is
no written agreement to the contrary. This means that from the total
fair market value of the community assets, the joint obligations of
the parties are subtracted, yielding the net community estate. Unless
agreed otherwise, each spouse must receive  of the net community
estate."

Even though you paid on the house while you were married to her and
acquired more equity on it, it seems that it still doesn't come into
play because you acquired ownership of it before you married.

Here is the official take of the California state government on the situation:

http://www.calbar.ca.gov/state/calbar/calbar_generic.jsp?cid=10581&id=2177#7

"Separate property. Separate property is property acquired before your
marriage, including rents or profits received from these items;
property received after the date of your separation with your separate
earnings; inheritances that were received either before or during
marriage; and gifts to you alone, not you and your spouse. Separate
property is not divided during dissolution.

Problems with identifying separate property occur when separate
property has been mixed with community property. You may be entitled
to receive your separate property back even if it has been mixed.
There are complex tracing requirements where property has been mixed,
and you may want to seek the advice of a lawyer.

Debts incurred before your marriage or after your separation are
considered your separate property debts.

You will be required to file proof that you listed all of your
community and separate property on a document called a Preliminary
Declaration of Disclosure and that you served this document on your
spouse. Determining the character of property can be complicated. You
may want a lawyer to help you make sure that your property is
correctly listed as community or separate."

So, even though you still paid the mortgage while you were married, it
was a separate debt and so is only yours.  The house is separate
property. Since you didn't add her to the deed, this should be simple
to prove.

If you need any additional help or clarifications answered, let me
know and I'll be glad to help.

Cheers,
--keystroke-ga

Search terms:
community property california
Comments  
Subject: Re: Divorce
From: mrlegaleagle-ga on 21 Jul 2006 10:38 PDT
 
Although the citation to the law may be accurately, I don't believe the answer is.


Although I do not practice in the area of family law, from what I
recall, to the extent community funds(such as your income or
investment) were used to pay for the bills, mortgage, etc., at least
some of the equity accrued may be "community property."  In the hands
of a seasoned family law attorney, not only is some of the property
subject to being classified as "community property," the funds in both
of your separate bank accounts may be as well, to the extent they were
accumulated during your marriage.

I would suggest you get some further guidance on this.
Subject: Re: Divorce
From: weisstho-ga on 22 Jul 2006 23:35 PDT
 
I agree with legaleagle - 

I have practiced law in community property states and it would be a
happy day if the law were as straight forward as the answer suggests.
Were that the case, we wouldn't need lawyers.

The general rule of "separate property" is well stated above. But the
court will look at the details in those comingled accounts to devine
what the intent of the parties was at the time that the funds were
consolidated and the payments made, and, as with all divorces, which
are "equitable" cases and not "law" cases, what is the fair thing to
do.

Good luck,

weisstho-ga

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