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Which Spouse Gets the House in a Divorce in California Law?

A house could be the most valuable asset in every home. Thus, it might be a significant subject of contention between a married couple in the event of a divorce. A divorce destabilizes the lives of everyone involved, including the married couple and children.  It could cause you to lose the most valuable assets you have, including your home. California divorce courts are only careful to give the house to the most deserving partner. The state divorce law is very particular on the issues a judge should consider in making the final decision. In this article, we’ll discuss the various possibilities based on the facts of a case. For help and legal representation if you are going through a divorce in San Diego, CA, contact an experienced divorce attorney.

Which Spouse Gets the House in a Divorce?

Marriages do not always work. Some marriages last a lifetime, while others end shortly after the wedding. When married partners can no longer live together, divorce is always an option. California law provides a detailed guideline on how marriages should legally end. Sadly, it doesn't always end with the couple going separate lives. Sometimes valuable assets are involved, and the couple must decide what happens to those assets once the divorce is finalized.

If you go through a divorce, it is always a good idea to be on talking terms with your partner. You have to decide some of the issues together, and that will only happen if none of you is holding a grudge against the other. If not, the decision is left for the judge to make. The judge will consider several factors in making the final decision. Based on the facts of your case, the house could go to you or your partner. It could help if you partner with an experienced divorce attorney. Your attorney will, among other things, protect your rights and ensure that your best interests are served in the end.

Your house is probably the most valuable asset you have. You may not have bought it using your money, but the many years you have lived in that house means a lot to you. Losing a place you have called your home for years is not a light matter. However, that possibility is always there in the event of a divorce. When you decide to call it quits with your marriage partner, you or your partner will have to leave home. Sometimes you might even opt to sell the house entirely, especially when you cannot amicably agree on who should go and who should remain.

Determining what will happen to a family home is among the most significant challenges judges in a divorce court face. A home is a family’s most valued asset. The decision could be more challenging to make if there are children involved. Many people have emotional attachments to their homes. When children are involved, their practical and emotional aspects play a significant role in the judge’s decision.

How does the judge decide who gets the house after divorce? Let us closely look at the factors that will play here and the possible solutions for your situation.

How Does the Court Decide?

It is hard to let go of a home you have called your own for a long time. That is why most couples do not agree on who should get the house after divorce. The decision is usually left for the court to make. But how does the court decide on matters like these?

Many things come into play when judges determine the partner who will have the house and whether or not it should be sold. For instance, the judge must decide where the child(children) will live (if they are involved), whether either partner will afford a house after their divorce, reimbursements, and tax implications.

Here are some of the issues the judge will address and how they could affect his/her decision:

Who Acquired the House

Just because it is a family house doesn’t automatically mean that it belongs to both partners. The judge has to find out whose asset it is. That might sound like a straightforward issue, but in reality, it’s not. The judge must establish whether it is a community or separate property.

The House as a Community Property

In California, a property you acquired within your marriage is considered community property and is presumed to belong to both you and your partner equally. In divorce, you will have an equal share of the property unless you acquired the property through a gift or inheritance. If your partner acquired the house during the marriage, both of you would have an equal share of the house after divorce.

It could be that you both acquired the house together, using the family money that you both contributed to. You could even have had your names on the house’s title. If that is the case, you will both have an equal share in the interests of that house. If one partner should keep the house, then the other will have an equal right.

However, not all issues concerning community property are as straightforward as this. It could be that you separately acquired the property using personal finances but while still in the marriage. You might even have your full names written on the title without the name of your partner. After divorce, you (the rightful owner of the property) will want a total share of the house. After all, the title automatically creates an assumption that the home is a separate asset and is wholly owned by the partner whose names are on the title.

Cases like these could be a little challenging to solve by the judge. Even if your partner did not contribute financially to the acquisition of the property, they have lived and contributed, albeit in other non-economic ways, to the house. In that case, your partner has the legal right to overcome the supposed owner’s presumption by demonstrating to the court their understanding that the home belonged to you both, even though your partner’s name is not on the title.

But rebutting that presumption, which the title has created, might be challenging at times. It requires solid evidence to demonstrate that the initial idea was for the home to belong to the two partners. Sometimes the judge could ask both parties to sit and talk under the guidance of their attorneys. An amicable solution could be sought this way. But if the partners disagree, the judge might be forced to consider other factors, like the children’s best interests, to make a conclusive decision.

The House as a Separate Property

Separate property is any asset one partner might have acquired before marriage. The law recognizes these assets as only belonging to the rightful partner and not co-owned with the other partner. Thus, if you had acquired the house before marriage, there will be no question about who will get the house after divorce. Your partner will have to give it up after divorce.

But the issue could become a little complicated if your partner contributed financially to the house after marriage. For instance, if they paid part of the mortgage or finance a renovation or improvement. In that case, the other partner will have valid interests in that house, which the judge cannot ignore.

It becomes even more challenging if you are financially stable and the other partner is not. The presence of children in the marriage will also impact the judge’s decision, especially if your marriage was for a significant time. For instance, if your partner was granted child custody but cannot afford a house for the children with her salary, the judge might order you to leave the house to your partner even if it was separate property.

In Case the House Belongs to Both Partners

In most divorce cases in California, if a home is a separate asset, the owner gets to keep it after divorce. But if it was community property, the judge has to decide how the partners will divide the house to ensure that each receives an equal share of the house after divorce.

Dividing assets after a divorce is best done through an agreement between the partners under the guidance of their attorneys. For instance, one partner might agree to let the other stay in the house for a predetermined period, after which they will both sell the house and share the proceeds. The partner’s decision will be guided by the facts of the case and the financial situation of each partner.

But if the partners cannot agree, they might require the intervention of a divorce court, whereby the judge gives a court order on what must be done by one or both partners. Some of the decisions that could work in your case are:

Agree to Sell and Share Profits

The best solution for divorcing couples regarding community property is to sell it off and then divide the proceeds. It rids a couple of properties they once shared, which could come between their decision to end their marriage.  The decision could be made through an agreement between the partners or court order.

It could work very well if neither of the partners can keep the home after divorce or if neither of the partners wants to remain in a home where the other partner’s presence will be highly missed.

However, remember that before you divide the proceeds with your partner, you’ll have to make payments for the remaining mortgage, equity lion, or second mortgage, plus the broker fees. Capital gains tax will also apply after the sale.

So many expenses are why most couples opt to keep the house after divorce and not sell it. The other challenge is moving the children from a home they are accustomed to, to another home in another location. Children do not settle as quickly as adults. Their emotional status is pegged on what is familiar and not on what could become familiar.

However, selling the home could come at an advantage if both partners need some money to start over again.

Buy the Other Partner Out

The other option would be for one partner to buy out the other partner. The partner who gets to keep the home pays the half-share of the house’s value to the other partner, then obtains a title with the house in his/her name. When buying out becomes an option for you so that many factors will go into consideration. For instance, whether you have enough money to pay your partner’s share of the house and maintain the house. You might also be required to refinance the home so that your partner will be removed from the home’s mortgage.

To determine whether you will be able to buy out your partner and take full possession of the house, here are some of the costs you should be ready to meet:

  • Mortgage payments — They are made monthly. You might want to remind yourself once again that the responsibility will all be yours since your partner will no longer be a part-owner of the house. Think of what would happen if you lost your income.
  • Home insurance — Payments are also done every month and will be your sole responsibility.
  • Utilities, maintenance, and repairs
  • Property taxes

Think of the tax implications, too, since they’ll be part of the economic equation. You must consider whether buying your partner out would result in a reduced mortgage interest rate.

Sometimes the matter is not as straightforward as stated. For instance, in instances where the court orders your partner to pay spousal support, you could agree with your partner for him/her to cater to the mortgage on the home instead. If your partner agrees, have it documented.

Deferred Sale

The other option would be for one couple to remain in the house temporarily, then you can sell the house later and divide the proceeds.

That could happen if you have minor children and do not want to destabilize them further. Remember that divorce is harder for children since they will not enjoy the complete family they have always known since they were young. And because one partner has to move out of the house, it becomes even harder since the children will not see one parent daily as they used to.

Thus, relocating the children after divorce would be a major blow to them. Therefore, you and your partner or the judge could decide to have the custodial partner staying with the children in the home, at least until they attain a legal age. Coming from a divorce court, the order would be to delay the sale of the house temporarily. In that situation, both partners will continue owning the home jointly for a predetermined period, as the custodial partner and the children exclusively use the home during that period.

However, the judge must first establish whether the custodial partner will afford all the costs of running the home after the separation. The judge will consider that partner’s income, the availability of financial support, and any other funds the partner could receive within that period.

If the judge realizes that the plan is not financially feasible for the custodial partner, he/she might consider other options. The judge’s decision in a case like this will be based on:

  • How long the children will need to live in that house after divorce
  • The age and grades of the children in school
  • How far the children’s school, and other amenities the children need, are from the home
  • If one or more of the children are physically disabled, the judge will consider whether or not the house has been adjusted to accommodate the child(ren)’s needs — Will moving the child(ren) make it difficult for them and the custodial partner?
  • The possible emotional impact the children might experience if they were moved to a new home.
  • Whether or not the home enables the parent staying there to maintain their job
  • The financial capability of both parents in obtaining an alternative housing
  • The tax effects of a deferred sale and how it would affect both partners
  • The negative impact the deferred sale might have on the other partner not staying in the house

If the judge decides to defer the sale of the house after careful consideration, he/she will design a court order for the deferred sale, specifying how long that order will be in effect. After that time, the partners will be free to sell the house and divide the profits, or for one partner to buy the other out.

Find a San Diego Divorce Lawyer

If you are going through a divorce in San Diego, CA, and are afraid of losing your home, it is important to know what could happen and the factors that could affect the judge’s decision. Working closely with an experienced divorce attorney will also make the entire process smooth for you. At San Diego Divorce Attorney, our client’s best interests are always our priority. Call us at 858-529-5150 for more information and help with ensuring that you do not lose your home after divorce.


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