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.