If you’re going through a divorce and you own a home, one of the biggest and most emotional questions you’ll face is, “What happens to the house?” At Mohajer Law Firm, we get asked this all the time: “Do I have an interest in the home?” “Is it considered community property?” “What are my options—do I sell it, keep it, or co-own it with my ex?”

In this video, Sina Mohajer will break down everything you need to know about dividing a family residence in a California divorce. Whether the home is considered community or separate property depends on several factors, including how and when it was acquired, and whether separate funds or inheritances were involved. And even once that’s determined, there are multiple ways the home can be divided. We’ll also explain the role of mortgage payments, buyouts, and when a court will step in and make the decision for you.

At Mohajer Law Firm, our goal is to simplify complex family law issues and help you protect your rights, including in divorce, custody, property division, and more. Call us today to schedule a consultation and explore your legal options.

Transcript:

If you’re involved in a divorce case and you own a family residence, I get asked these questions all the time as to “How does it get divided?” “Does it even get divided?” “Do I have an interest?” “How much will I get and what are some options available to me?” Well, in this video, we’re going to address all of that.

Hi, I’m Sina Mohajer with Mohajer Law Firm. We specialize in family law, estate planning, criminal defense and personal injury. In these videos, I like to tackle complex legal issues and simplify it for our viewers in order for you to have a better understanding and how to protect your own legal rights.

So if you like the contents of this video, please hit that like button. And don’t forget to subscribe so you’re always in the know about any new videos being posted. So without further ado, I welcome you all to our new series called A Walk in the Park.

California Is a Community Property State

California—as much as we love this state—is a community property state. Some people don’t agree with it. But what community property is, is that anything you acquire from the date of marriage or the date of separation is presumed to be community. Therefore, it needs to be divided equally.

Anything you acquire prior to marriage and post-separation is going to be presumed to be your separate property, meaning you get to keep it all.

But the question comes down to whether your family residence is going to be a community or a separate asset. And it’s very important in the early stages to come to that determination, and that will set forth what path we need to take to ensure that we get an equitable solution.

You Acquired Your Family Residence While You Were Married

If you acquired your property, your family residence, while you were married, then the presumption is, yes, it’s going to be a community asset. But there are some exceptions to that presumption.

Exceptions to Community Property

For example, if you use money that you had prior to marriage, which is your separate funds to acquire this asset, and then subsequently the community was making the mortgage payments and etc. Now we have a division, we’ve got part community and part separate. Or, if during the marriage you acquired this from money that you received as an inheritance or as a gift—well, that constitutes a separate property as well.

Therefore, we’re going to have a divide of this asset being partly community and part separate. So it’s always important to look at that exception as well as the presumption to determine what are your options.

Other Options to Dividing the House

But what are some options as it comes to dividing the house? Well, let’s just go off of the notion that this is a community asset. One way is to sell the house and split the equity equally.

Another option you have is if one spouse wants to keep the house for themselves and the other one doesn’t really care. Then the person who is keeping the house is going to buy out the other spouse’s interest in that property as well.

Your third option, although I don’t highly recommend it yet, still an option, is just continue to co-own this property together even after separation and after divorce, which means you both still own a 50% interest in this house. But you can wait until perhaps the value of the house goes up before you sell.

When You Have a Dispute Over Dividing the House

In any event, if you come to a dispute and you can’t come to an agreement, well then if you go to court, the judge is not going to consider the third option as even an option. At that point, when you’re getting divorced, the court wants to ensure that you guys can go your separate ways and live your separate lives. So the third option is not even going to be considered.

It’s either going to be a buyout or the house is going to be sold.

Before you determine or decide whether you want to be bought out or whether you want to sell. It’s important to look at perhaps some tax implications. For example, if you receive a large sum of money, you could be potentially paying capital gains tax. So it’s important to discuss this option either with a CPA or a seasoned family law attorney to see whether this is even something you want to explore.

Who Pays the Mortgage?

Another question I get also is regarding the mortgage payments. “Who pays for it?” “Do I have to pay all of it?” “Do we split it or how does that happen?” “How does it get handled?” And it depends on the factors. A lot of times when parties are going through a divorce, usually they’re not residing together. If they are, then usually both sides will have to pay half of the mortgage. But for the most case, you have one spouse in the house and then you have the out spouse.

So the in-Spouse I would always recommend pay the full mortgage, even though the other spouse is obligated to maintain that mortgage as well and pay 50/50. But the issue you’re going to run into, where a lot of people don’t inform you on, is the spouse has a right of a reimbursement or credit. And that’s because they are the out spouse. They’re not gaining that advantage of having that use and enjoyment of the property, which is half of theirs. So they get to request a court for you to pay them half of the fair rental value for every single month you have exclusive use.

But the best option in that situation is that if you can afford to pay the full mortgage, well now you’re offsetting their demand for their credit or reimbursement and ends up being a wash.

If the two of you cannot resolve this issue. You have a few options. Or perhaps you want to try to resolve it between yourselves. You might want to seek individual or private mediation. In a mediation setting, a mediator will sit down with the both of you and try to see if they can get you guys to come to an agreement. Whether one person can even afford to buy out the other or not could be a factor where it might not give you many options.

Court Intervention to Divide Your Property

But in any event, if the two of you cannot reach an amicable solution, you have the right to seek a court intervention where you go in front of the judge and the judge will make a decision one way or the other—whether to sell the property or one spouse gets to keep the house and the other one doesn’t.

Questions About Dividing a House in Divorce

If you have questions about your divorce case, or in particular, perhaps your options, or what you should do with your family residence, feel free to call our office. I’m happy to sit down with you on a one on one basis to explore your options.

So if you like what you see in this, like I asked earlier, don’t forget to hit that like button. And don’t forget to subscribe. So you’re always informed of any new videos. And I hope you enjoyed this series of A Walk in the Park.