714.706.3992 Call for a Free Phone Consultation
Serving Orange County

Orange County Family Law Attorneys

Can I Get My Down Payment Back if I Bought the House Before Marriage?

Posted By Center for Mediated Divorce || 28-Dec-2015

One of the questions that many divorcing couples often ask is about their home. In California, our state differentiates between individual property and marital property. The former is the property that belongs solely to one spouse while the latter is all of the assets and properties acquired during the marriage.

Your home could be considered separate property under the following conditions:

  • You purchased the home prior to getting married
  • The home was given to you as a gift or inheritance
  • Your spouse’s name is not included in the title ownership
  • You did not refinance or retitle the home and add your spouse as a co-owner
  • Separate property from a previous marriage can be retained as separate in a subsequent marriage

Now, understand that if you purchased the home before the marriage, but you used funds from marital assets to pay for it. Essentially, both spouses have paid a portion, and your spouse has contributed to financing the home. The courts may look at the percentage of how much each spouse paid to the home’s equity and divide accordingly in the event of a divorce.

What About My Down Payment?

There is a law called the 2640 Reimbursement, which comes from Section 2640 of the California Family Code. This entails anyone who uses funds from his or her separate property can have their down payment repaid, provided that you provide the appropriate documentation.

You will need to demonstrate that the funds used came from your separate property or were inherited. This can be done through court documents, providing copies of a court order, bank statements, or by showing a copy of a will.

Once the down payment has been given back to you, remember that if the mortgage was paid using marital funds, then the remainder would be paid out to you and your spouse. The initial down payment would go to you, and then the rest of the equity is divided.

If you have any further questions about separate property versus marital property, or would like legal assistance in your divorce case, please contact Center for Mediated Divorce.

Attorney Judith A. Williams is a seasoned, top-rated Irvine divorce lawyer with a 98% success rate. Read more about our attorney here.

Get Help Now!

Send Info

The Right Attorney

  • Avvo Rating of 9.4 Superb
  • Voted Top OC Divorce Lawyer
  • Nearly 20 Years Of Experience
  • Affordable Divorce Fees
9.4 superb Avvo