When you decide to divorce in California, you likely want to know how assets will be split. One common question is: Who gets the house?
There is no specific formula or set of guidelines that determines who gets what. Generally, the courts prefer that the spouses agree on property division on their own. If not, then the judge will make a decision. However, in any case, nobody is forced to keep the house.
A house is a hefty expense. Most houses have mortgages on them. Plus, there are insurance, taxes, and maintenance costs to keep in mind. Can either party afford all this on their own? If so, do they want to keep the house?
Also, there’s the question of whether or not the house is community property. Under Cal. Fam. Code §§ 760, all property, real or personal, acquired by a married person during the marriage while domiciled in California is community property. So generally speaking, a married couple would have equal rights to their home unless it was acquired by one of the parties before marriage. But even still, if both parties were contributing financially to the home, then the property could be considered commingled, and both parties could have rights to it in a divorce.
What Options Do I Have?
In a California divorce, there are several options when it comes to the home:
- Sell the house and split the proceeds. This is the best solution when neither spouse can afford to keep the home, or they prefer not to. The home is listed for sale, and once it sells, the mortgage is paid off. Costs like realtor fees, repairs, or taxes are typically deducted. The remaining equity is then divided equally, unless otherwise agreed or ordered.
- One spouse buys out the other. If one spouse wants to keep the home, they can “buy out” the other’s share of the equity. This often involves appraising the home to determine fair market value and calculating equity (market value minus the outstanding mortgage). The other spouse is then paid their share, either in cash, through refinancing, or by offsetting with other marital assets (like retirement accounts or vehicles).
- Deferred sale of home. California courts can order a deferred sale of the family residence. This typically happens when minor children are involved. One spouse (typically the custodial parent) continues living in the house temporarily. The sale is postponed until a triggering event, like the youngest child turning 18 or graduating from high school. Both spouses maintain ownership until the sale happens, and the proceeds are divided later.
Contact Us Today
While many people plan to keep the house after a divorce, this is often very difficult to do due to the amount of money involved. Mortgage, insurance, maintenance — can you afford it all?
The Law Offices of Oliver Gutierrez in Redwood City can help you handle property division issues. Need a Spanish-speaking family law attorney? Se habla español. To schedule a consultation, call (650) 285-1673 or fill out the online form.