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Who Gets the House in a California Divorce?

If you and a spouse own a home together, one of your first questions as you face the prospect of divorce in California is likely “who gets the house?” There is not a simple, one-size-fits-all answer to this question, and who remains in possession of a family home will depend on a number of factors, explained below. Ideally, you and your spouse will work together to reach a settlement agreement – perhaps aided by an experienced California family law attorney and/or mediator – to reach this decision on your own, but a court may have to decide if you are unable to work the issue out.

Is the House Community Property or Separate Property?

The first question to ask is whether the house is considered community property or separate property. If one spouse purchased the house prior to the marriage (or with funds inherited by or gifted solely to him or her) AND has paid mortgage payments completely with funds earned from before the marriage, then the house is separate property and will stay with that spouse.

But if the house was purchased with funds earned during the marriage, then it will be considered community property, regardless of which spouse worked to earn the funds. Community property is split 50/50 between the spouses at divorce (more on how that works below).

When a house was purchased prior to the marriage with one spouse’s separate property, but mortgage payments or improvements on the house have been made with funds earned during the marriage, the value of the home will be considered commingled separate and community property. This can require complicated analysis by a family law attorney to determine how much interest each spouse has in the home.

Splitting a Community Property Home in a Divorce

We mentioned above that community property is split 50/50 in a divorce, but that doesn’t mean that a house will be split in half, King Solomon style (although situations have existed where a divorced couple have continued to live together in the same house after divorce, in different parts of the house).

Instead, all of a divorcing couple’s community property will be valued cumulatively and each spouse should walk away with roughly half of the value of the total community property. This means you will need to add up all community property – including savings accounts, retirement funds, business ownership interests, vehicles, jewelry, furniture, etc. – and split up between the parties so that each has an equal value.

Obviously, a home can by itself be worth more than all the other assets combined, and, in such cases, it may be necessary for the spouse holding on to the home to make a cash payment to the other spouse to equalize their respective portions of community property.

Who Decides Who Gets What?

The ideal situation in any divorce is for the divorcing spouses themselves to reach an agreement on their own regarding who should get what with regard to their community property. If they cannot, however, a judge will have to make this decision based on the declarations that each spouse presents to the court of the total assets they own and their value.

As you might imagine, some divorcing spouses try to game the system by hiding and/or misvaluating assets in a bid to take more than their fair share, but an experienced family law attorney can take action on your behalf to make sure you are treated fairly under the law.

When the couple has children, this can also impact a judge’s decision regarding possession of a family home, as California courts are concerned with the best interests of the child. Thus, custody concerns and other factors such as the child’s connection to school and community can impact who receives the house in a divorce.

Get Answers to Your California Family Law Questions

At Kearney | Baker in Pasadena, we represent spouses through all aspects of the dissolution/divorce process. Our partners, Brian A. Baker and Gary W. Kearney, are both Family Law Specialists, as certified by the California State Bar. To schedule a consultation regarding any questions about family law in California, contact one of the family law attorneys at Kearney | Baker today at 626-768-2945.

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