A common question you might ask yourself during your divorce proceedings is: Who will get to keep the house? For divorces that do not have a prenuptial agreement in order, the process for distributing your assets can often become contentious and difficult, especially when the stakes are high.
In the state of California, your home will likely be categorized as community property. Community property is property that you acquired throughout your marriage. If your spouse contributed to the down payment on your house or any of your mortgage payments, your house can be considered community property. Since your property can be counted as community property, it can be subject to equal division between you and your spouse during your divorce hearings.
However, in some situations, your family home can be considered separate property. Separate property is the property you acquired before you entered into the marriage, this also includes gifts or inheritances.
Let’s say that your home was given to you by a family member or was acquired before you married your spouse, it would be considered separate property and would not be subjected to equal division when your divorce is finalized. It should be noted that if you paid for your house with two sources, such as paying your down payment with separate property and paying the mortgage with community property, the community is entitled to a proportionate amount of the appreciated value of the asset at the time of divorce.
But, there are some cases where only one spouse is able to retain possession of the house. The courts will consider numerous different factors when determining how to distribute the primary residence in a divorce. Courts will usually look at the following factors when making a determination about a home:
- The length of the marriage
- The contributions made by both spouses
- Child custodyand support arrangements
- Spousal supportarrangements
The court will do its best to minimize the negative impact of the divorce on the children.
In order for the custodial parent to be awarded ownership of the house, they will likely need to qualify for a mortgage for the property. In addition to this, the existing mortgage will need to be refinanced to remove the other spouse from both the mortgage and the deed for the property. Courts will also consider if one spouse is unable to obtain financing.
If one spouse is awarded ownership of the home, the other spouse will usually receive a fair share of equity in the home. The amount of equity will usually be allocated from other valuable assets or refinanced with cash.
If both spouses cannot afford to finance the home on their own, the courts can order the home to be sold to simplify the process of dividing assets.
Because there are many factors that come into play when dividing assets in a divorce, it is important that you are prepared. If you are planning on getting a divorce, you should immediately contact our Beverly Hills team of divorce attorneysto schedule a case consultation.