ClickCease
We’ve been doing this for more than 30 years. Call us.
415.834.1120 24/7 answering service

Who Gets the House in a California Divorce?

A common point of dissension during a divorce case in California is, “Who gets the house?” Your home is where you have made memories, grown as a family and put down your roots. You might have put a lot of money, time and work into your home. It is natural to want to fight for it during a divorce case. Learn how California courts handle the division of property, including the family home, for an idea of what to expect during your divorce case. Contact a divorce attorney in San Francisco if you want assistance negotiating the terms of your divorce.

California Property Division Laws

The answer to who gets the house in a divorce can change depending on the property division laws in the state where you are filing. California is one of only a few community property states. California Family Code Section 2581 states that the courts will presume all property acquired by the couple during the marriage to be community property.

When a couple marries, they technically form their own community. Properties purchased, assets gained and debts acquired during the marriage will thus become part of the community. This includes the family home. Under California’s community property laws, each spouse has the right to an equal share of community property as well as community debts.

When a divorce case goes to a judge to decide, he or she will split all community property down the middle. The judge will allocate 50% of the community property to one spouse and 50% to the other. The courts in California do not hear fault-based divorce cases, meaning they will not take one spouse’s fault into account when determining things such as property division. They will split community property 50/50 regardless of fault for the divorce.

 

Community vs. Separate Property: What is Your House Classified As?

It is important to note that California’s property division laws will only apply to community property, not separate property. If you owned a home prior to the marriage and did not add your spouse’s name to the title– it is most likely separate property. This means it is your own property and not part of the community, though the community may have a small interest. During a divorce case, you would get to keep a home that is separate property.

If, however, you commingled the home with your spouse, it will become part of the community. Commingling can refer to purchasing the house together with your spouse, with both names on the title. It can also refer to adding your spouse’s name to the title of a house you brought into the marriage. Understanding community interest in a shared home can be difficult during a divorce case – especially if you own multiple properties. Ideally, you and your spouse will be able to divide your property by agreement rather than going to court.

Contested vs. Uncontested Divorce

An uncontested divorce is another word for a divorce settlement agreement. It refers to a legally binding agreement you and your spouse come up with yourselves via divorce settlement negotiations. An uncontested divorce can allow you and your spouse to remain in control of who gets to keep the house rather than handing the decision over to the courts. You may not have to abide by California’s community property laws if you and your spouse can achieve an uncontested divorce agreement rather than going to trial.

 

Hire an attorney to assist you with alternative dispute resolution, such as divorce mediation, as a means of avoiding trial. A lawyer can help you and your spouse compromise on the terms of a divorce, including decisions about a family home. With assistance from a lawyer, you may be able to reach an agreement with your spouse rather than having to bring the issue to a judge. Hiring a lawyer could be your best chance at achieving an uncontested divorce and the outcome you desire.

What Are Your Options When it Comes To Your House in a California Divorce?

A divorce lawyer in San Francisco could help you by outlining your options in terms of how to handle a shared home during a divorce. Agreeing on a creative solution could allow both you and your spouse to be happy with the outcome of the case.

  • One spouse buys out the other. A common solution during divorce settlements in California is for one spouse to buy out the other’s interest in the home. This will effectively put the home solely in the buying spouse’s possession.
  • You sell the house and divide net proceeds. Another option is to sell the home and divide the net proceeds. You could split the profits 50/50 or come up with a different solution. Your spouse may give you a greater portion of the profits, for example, if you agree to take on more of the community debts.
  • You both own the house (deferred sale). You could also both agree to remain joint owners of the home even after a divorce. This is a common choice among couples with minor children living at home. The courts may allow for the temporary deferment of the sale of the home in this case.

The option you choose will have no bearing on child custody. Child custody is a complicated matter that primarily asks what will be best for the child. While it is true that the custodial parent is often the person who still lives in the home, to minimize the amount of disruption to the child’s life, the two are not mutually exclusive. Your lawyer can help you fight for custody with or without the family home in your possession.

Corona Virus Update: SFLG operations are uninterrupted. Our attorneys are available to both existing & potential clients. Contact us today. Close