Stay or Go? How to Protect Home Ownership During Divorce

Your home isn’t just a place to live. If you’re like many people, your home is a place full of memories and personal touches that you care about deeply. If divorce threatens your claim to your house, you may be too overwhelmed to think about how to protect your ownership interest in your beloved home.

Luckily, you likely have a strong claim to 50% of your home in California. If so, you have a strong position to negotiate full ownership of the property in your divorce. In this article, you’ll learn about how California determines homeownership, how homes are divided during divorces, and a few tips to protect your claim to the property.

How California Determines Real Estate Ownership

Real estate is a complicated type of asset. In some ways, it’s the most “real” asset class since it’s connected to literal objects and land. In others, real estate is relatively vague, as the rights to use a property can be split from ownership of that property, and ownership can be shared among multiple people.

This can become even more complicated in marriages. A home may or may not be considered marital property, depending on when and how it was purchased.

  • Separate property remains yours alone after marriage unless it’s commingled, or mixed with marital property. That means that any financial assets you have before marriage remain yours alone as long as you keep them separate. If you buy something purely with separate assets, that purchase is also considered separate property. For example, if you have a bank account from before marriage with the funds to buy a house in full, then the house is entirely yours.

Dividing Real Estate Ownership in Divorce

With all of those possibilities, real estate inevitably complicates the division of assets. This is exacerbated by California’s community property laws, which state that any assets gained by a couple during their marriage are owned equally by both people. These laws require the court to determine the true ownership of the home and either find a fair way to split ownership if it’s marital property or counterbalance the house’s value with other assets.

That requires judges to carefully consider elements such as:

  • equity and mortgage on the house are supposed to be split equally. A spouse can buy out their partner’s share of the mortgage in exchange for their equity as long as they have the funds to do so.

The simplest way to resolve these issues is to sell the property, pay off any loans associated with it, then split the proceeds equally. However, that’s not the only path.

Strengthen Your Claim on Your Marital Home

If you want to retain your home during a split, you’re in luck. Your spouse can’t force you to give up your claim or sell the house unless you can’t afford to keep it. If you want sole ownership of the home, there are a few things you can do to strengthen your claim.

Stay In Your Home

While leaving your home doesn’t automatically forfeit your claim to the property, it doesn’t reflect well on you. This is especially true if you and your spouse have children and the kids remain with your partner in the home.

Many judges prefer to award homeownership to the parent who will care for the kids. You can strengthen your claims to the custody of your children and full ownership of the house by staying put.

Demonstrate the Ability to Pay the Bills

Whether your partner remains in the house or leaves, someone needs to pay the bills. Make sure you stay on top of considerations like mortgage payments and utility bills. This helps you prevent any complications that encourage your ex or the courts to sell the house instead of keeping it.

Prepare to Negotiate

If it’s determined that you co-own your home 50/50 with your former partner, it’s time to negotiate. Your ex has equal claim to the property, so you’ll need to work with them if you want sole ownership. The simplest solution is to offer to buy out their share of the equity. This can be as simple as giving them a larger portion of the liquid assets in your divorce or a more detailed negotiation that should be handled by your attorneys.

You Can Take Action to Stay In Your Home

Divorce already changes your life in hundreds of ways. It doesn’t need to force you to leave the house you love, too. With the proper preparation, you can strengthen your claim to your family home during your divorce and make it more likely that you retain full ownership after everything is finalized.

You can make the process easier by getting help from a qualified divorce attorney. Lawyers like the team at Kaspar & Lugay, LLP, have the knowledge and experience to support you while you work to keep your home. You can reach out today to learn more about how the right lawyer can help you protect the home you love.

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Kaspar & Lugay, LLP is a family law firm with offices in Corte Madera, CA; Napa, CA; Walnut Creek, CA; and San Diego, CA. We also represent clients in San Francisco, Oakland, Sacramento, Pismo Beach, Contra Costa County, and Los Angeles.