Will I Have to Sell My Home Bought During My Marriage After My Divorce?

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Many divorcing couples have disagreements about property division when it comes time to divide their shared assets, and one of the most common points of contention is the marital home. Ultimately in California, the date the couple purchased the home influences property division decisions.

If one spouse purchased the home prior to the marriage, it usually remains his or her sole property. However, many factors could change this and qualify the home for community property. If the couple purchased it together during their marriage, the home counts as community property and is therefore subject to division by equitable distribution in most states.

Determining Ownership of Marital Property

The most often used determining factor in assigning ownership to property in a divorce is the time of acquisition of the property. Property obtained during the course of a marriage almost always qualifies as shared or community property, even if one spouse used it more than the other or contributed more toward the purchase. If a marital home counts as community property, then the couple must determine a method to divide the home’s value. They usually do this by selling the home and dividing the proceeds evenly or one spouse buys out the other’s share of the home’s value and remains in the home.

Some sole property may become shared property in some situations. For example, if one spouse owned a home worth $100,000 prior to the marriage and then made improvements to the home during the course of the marriage and increased the home’s value to $200,000, the home would likely count as community property due to the increased value the other spouse contributed.

However, this may not apply to an inherited home. If one spouse inherited a home from his or her parents, a judge would likely allow him or her to retain ownership and then determine an equitable method for compensating the other spouse for his or her contributions to increasing the home’s value.

Alternatives to Selling

Sometimes a divorcing couple cannot reach an agreement for handling the division of the marital home. In rare cases they may simply continue to cohabitate out of convenience or other personal reasons. If one wishes to remain in the shared home but the other wants to sell, this can easily create tension. Other factors like the divorcing couple’s children can also influence property division decisions. If one spouse wins primary custody of the couple’s children, remaining in the marital home with the kids would likely be in the kids’ best interests in the eyes of the court.

Other issues can arise if one spouse wants to buy the other out but does not have the funds to do so; the other spouse may become effectively trapped in a home he or she no longer wants; unable to buy a new home due to the lingering mortgage obligation. If one spouse can refinance the home’s mortgage as his or her sole property, this may offer a solution.

It is vital for any divorcing individual to remember that unlike some aspects of a divorce decree subject to modification, like child custody agreements, property divisions are final. If a divorcing spouse accepts a buyout or equitable distribution that requires signing over his or her rights to the property, he or she cannot contest the decision later and must abide by the terms of the divorce decree.

Ultimately, if you truly do not wish to sell your marital home and it counts as community property, you must work out some kind of mutually agreeable solution with your ex or buy him or her out of the other half of the home’s value. However, every divorce case is different and unique factors influence property distribution in many ways. A divorce attorney is the best resource for anyone concerned about property division following a divorce.

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