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Who Gets to Keep the House?

Posted on in Property Division

California divorce lawyer, California family law attorneyDuring a divorce, everything that constitutes a marriage must split into two separate lives. While this is a natural process for some couples and even for select assets, for others, the disunion is much more complicated. Occasionally, the bond that ties the two may not ever be entirely separated, such as those with children. In other scenarios, the large assets of property division are where contentions arise. The most common question asked by couples struggling with the last scenario pertains directly to the most significant investment many couples make: who gets to keep the house?

What Is the Purchase Date of the Home?

Believe it or not, the purchase date, or closing date, of a home, can make a large difference as to who gets to keep the home. Consider that California is a community property state, meaning all items purchased and investments made during the marital union all belong to both parties equally as “community property.” Anything owned before the marriage began, after filing the divorce papers, or any items earned outside of the marriage, all are “separate property.” Separate property stays with the owner after the finalization of the divorce. However, this is not a certainty as other factors may play a factor, such as mortgage payments, improvements, and maintenance. Occasionally, a separate property home becomes community property with the right investments.

The Home Was Purchased during the Tenure of the Marriage

In the typical, straightforward situation involving a home, the couple bought the house together and therefore are equal owners in the home. In this case, the home is community property. There are several possibilities that a court will consider to divide the property equitably during divorce litigation. The most common solutions include:

  • Selling the home and dividing the profit equally,
  • One spouse buying out the other of their share of the home, and
  • Deferred sale of the home while children are present.

There Are More Options through Mediation

Although divorce litigation is often the go-to method for divorce, the outcomes are limited to the laws by which a judge is bound to uphold. Therefore, if you have another solution that may work better for you and your family, consider exploring the option of divorce mediation. Through this cost-effective method, divorcing spouses are often able to come to a solution that otherwise would not have been possible had the case gone straight to litigation. If you would like to further delve into the realm of possibilities for who gets your family home during a divorce, contact a tried and true San Jose, CA property division attorney. Through divorce litigation and also divorce mediation, Attorney Benita Ventresca utilizes several decades of experience to help local families reach a conclusion that is beneficial to all parties. Call 408-395-8822 to schedule your free and confidential initial consultation.

 

Sources:

http://www.courts.ca.gov/1254.htm

http://www.courts.ca.gov/documents/fl160.pdf

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