November 27, 2022

Who Gets the House in the Divorce? – Property Division

unhappy couple dividing marital property in office of divorce lawyer

Property division in California is governed by the doctrine of “community property.” Under this system, a divorce court automatically presumes that any property acquired by a couple during their marriage is jointly owned property. Each spouse has an equal ownership interest in any community property.

There are a few exceptions to the community property rule. An inheritance or gift received by one spouse alone would not usually be considered community property but instead the sole property of the spouse who received it.

Property acquired before marriage is considered separate property, as is property acquired after the “legal date of separation.”

Such distinctions are not always clear-cut. A spouse might already own a house before marriage and then have the assistance of the other spouse in paying the mortgage or making repairs. In any case, there are always tax implications to consider in any division of property that involves a sale.

If you live in or around the Sacramento area, the advice of a Roseville, CA, divorce attorney can assist you in arriving at a property division that minimizes the tax implications for both parties.

During a Divorce, Who Gets the House?

A couple’s home is often their most valuable asset and can often be the cause of a great deal of emotional disagreement in a divorce. If the couple has children who grew up in the home and are attached to it, negotiations over the house can become even more complex.

In determining what happens to a house in a divorce, a number of factors can be considered.

  • How was the house purchased?
  • Can either spouse afford to keep the house or make payments on the mortgage?
  • Are there children who need shelter in the house?
  • What are the capital gains tax considerations if the house is sold?
  • If one spouse buys out the other, how will the transaction be financed?

The simplest case is a couple who have a mortgage which also needs to be divided and no children. The court will frequently order the house to be sold, the mortgage settled, and the proceeds, if any, to be divided between the parties.

Another alternative is to allow one spouse to buy out the interest of the other if the couple has substantial cash assets or an investment portfolio that can be used to complete the transaction. This transaction can be accomplished without recourse to a mortgage.

A buy-out option becomes especially attractive if there are minor children to be housed or if one spouse is especially attached to the property.

If one spouse purchased the house before marriage, the question of ownership and division becomes a bit more complicated. The house might be counted as separate property.

However, suppose the other spouse contributed to mortgage payments or upkeep. In that case, both spouses will have an interest in the real estate, and the contributing spouse may be awarded reimbursement for the amount invested.

Property Settlement Agreements

A property settlement agreement is a written agreement between spouses on the division of property in a divorce. While property division is the main focus of a property settlement agreement, related issues, such as child support, custody, and alimony, can also be considered in a comprehensive settlement of issues under a property settlement agreement.

Legal Assistance from a Roseville Family Law Attorney

At the Manzoor Law Firm, we offer an extensive range of family law services, including divorce litigation and advice. Our legal staff has extensive experience in community property law and settling even the most complex property division questions.

We are also willing to represent our clients in court, courteously and ethically but aggressively. If you require the services of a Roseville family law attorney, call us today for a consultation.