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Who Gets the House in a Divorce?

Divorce is an emotionally taxing episode in anyone’s life, fraught with difficult decisions, one of the most significant being, "Who gets the house?" If you are undergoing a divorce in California, understanding how state laws affect the division of property, especially major assets like a home, can help you manage your expectations and feel more confident going into proceedings.

Please keep reading to learn what people mean when they say California is a 50/50 state and how couples deal with large assets, like their shared family home, when they divorce.

Understanding California’s Community Property Laws

California is known as a community property state. This classification has profound implications for how assets—and debts—are divided upon divorce. The first step the courts take is categorizing the couple's property into two buckets: community property and separate property.

  • Community property: Almost everything acquired by either spouse during the marriage is considered community property and, hence, subject to equal division in a divorce.
  • Separate property: Assets owned by a spouse before marriage, acquired as a gift or inheritance, or resulting from a personal injury settlement are typically considered separate property and not subject to division.

What This Means for Your Home

Given this backdrop, if the family home was purchased during the marriage, it is generally considered community property and thus subject to the principle of equal division. However, not all homes will be classified as community property. Translating community property principles into practice can be complex, especially when couples have complex assets.

Consequently, every couple's property division settlement will be unique to their specific circumstances, including how they deal with the family home (or other jointly owned real estate).

Common Strategies for Dividing the Family Home

Despite the stringent laws surrounding property division in California, divorcing couples often find they have more flexibility than was initially apparent. Parties can discover viable paths to mutually agreeable solutions for their property concerns by exploring various options.

Some common pathways couples might pursue:

  • Sell and split proceeds: The most straightforward option is to sell the home and divide the proceeds equally between both parties. If a home is not paid off when a couple divorces, they typically take this option and pay off their respective portions of the mortgage debt.
  • Buy-Out: One spouse may buy the other’s share in the home, thus taking full ownership post-divorce.
  • Agree on equitable split: Couples might agree on other arrangements, possibly trading other assets and debts so that one spouse may retain the home. This is a good option for couples with strong communication and can resolve these matters without court intervention.
  • Deferred sale or co-ownership: Less commonly, divorcing couples might decide to retain joint ownership for a certain period, often until children reach adulthood or the market improves.

While California's classification as a community property state sets a standard for the equal division of assets, it's essential to acknowledge that couples have some latitude in reaching an equitable property division agreement. This flexibility allows for tailored solutions that align with both parties' unique financial and emotional needs.

Warnings Against Co-Ownership

Co-ownership of a home post-divorce is not the most common way divorcing couples deal with shared real estate. However, it may benefit those who want to keep children in their familiar homes as long as possible or are divorcing in a disadvantageous real estate market. That said, couples considering this option should be aware of the potential pitfalls.

Though co-ownership may appear as a viable interim solution, it’s rife with potential challenges. Issues can arise from continued financial ties, impacting both parties' ability to move on practically and emotionally. Additionally, coordinating home maintenance, tax payments, and other related issues can strain an already strained relationship.

How Prenuptial or Marital Agreements Impact Division

If there’s an existing prenuptial or other marital agreement, it may have stipulations that override the state’s community property laws, thereby affecting who gets the house. For these reasons, reviewing any pre-existing agreements before making decisions regarding the family home during a divorce is essential.

For example, a prenup may contain provisions related to:

  • Specified asset division: Agreements may outline specific divisions that differ from equal distribution, such as stipulating conditions under which one party retains an asset, like a home, when community property laws would dictate otherwise.
  • Waiver of rights: One party may have waived their right to certain assets, including the family home.

The Value of Legal Advice

Given the emotional weight and legal complexity surrounding the division of assets in a divorce, especially concerning the family home, seeking professional legal advice is advisable. An experienced attorney, like ours at The Law Office of David A. Martin & Associates, can help you understand your legal rights and obligations, aiding in informed decision-making.

If you are considering divorce or have questions about dealing with major assets during property division, reach out to us online and schedule a consultation. We are ready to assist you.