This article is not intended to be construed as legal advice. It is for informational purposes only, offering insights and awareness into the complex nature of negotiating the terms of divorce. Speaking with an experienced attorney is an advisable way to make sure your rights are safeguarded. Your attorney can explain in your specific situation, who gets the house.
You Can’t Split it in Half, so Who Gets the House?
After years of pouring love, blood, sweat and tears into your home, you realize you can’t both stay there. Your marriage is over and soon you and your spouse will need to divide assets and debts. Since it rarely works out to keep half a house, one of you will be moving out. Which one? In divorce, who gets the house?
The short, unsatisfactory answer is both of you. Couples typically equally share the house’s equity value. Separating couples who can talk to each other may be able to work out a fair arrangement for the court to approve. What separating couples often forget, is that until a judge issues a final order, approving your agreement, all community property still belong to both of you. None of the property is separate until the divorce is completed, even if you worked out an agreed division of property. Until then, a house bought during a marriage is community property equally owned by both spouses.
What is Community Property?
In a marriage in California, the “Community” refers to the spouses. Any asset accumulated during the marriage, like a house, cars, savings, retirement accounts are typically considered property of the community. While this seems a pretty straightforward proposition, the question of who gets the house can get complicated. Assets can be mingled, especially during financial transactions. This is especially common on real estate when spouses are added to the title during refinancing or other financial transactions.
Is Inherited Property Community Property?
California is a community property state. Unfortunately, spouses often turn inherited or previously owned real estate into community property by adding the spouse’s name to the property. Other times, both spouses make the mortgage payments, commingling the asset. An inherited house might still belong to you, but only if it hasn’t become commingled. When an effective prenuptial agreement is in place, it can protect property owned prior to the marriage.
Do We Have to Sell the House?
Before you decide, talk to your attorney to clarify whether your house is separate property or community property. If the home is separate property, it usually is awarded to the spouse who owns it separately. If it is community property, the spouses can agree to allow one spouse to buy out the other spouse’s ownership interest. If neither spouse can afford to keep the home, it would need to be sold and the sale proceeds will be split along with the other community assets.
Can I Change the Locks if the House is Under My Name?
In California, unless there is proof otherwise, the home is community property, owned by both spouses. Therefore, you are not allowed to lock out the co-owner from a home unless you have a court order. The issue of who gets the house is sensitive and the court knows most divorcing couples would find cohabitation a struggle. The residency issue is typically decided in a hearing after the divorce is filed, prior to the final divorce ruling.
Need more information?
Hittelman Family Law Group has years of experience standing for clients with both planned and urgent legal situations. These may include prenuptial, postnuptial agreements, complex custody, abuse situations, mediation, divorce and other family law cases. Contact an HFLG team member here, or call (949) 210.3260 to find out where you stand.