Who gets the family home in a divorce?

On Behalf of | Jul 23, 2022 | Uncategorized |

Part of divorce proceedings is the categorization and division of assets according to California law.

Like all assets in a California divorce case, what happens to the house depends on whether it is marital or separate property?

Is the house marital or separate property?

California is a community property state. This means that the state presumes that any assets purchased during the course of a marriage are marital property, belonging to both spouses. There are exceptions to this rule, but when it comes to the marital home, you can typically answer the marital vs. separate property question fairly easily.

Was the house purchased after the couple married? If so, it falls under marital property. If one spouse purchased the home prior to marriage, it is likely separate property, belonging to the spouse who purchased it. However, investments the non-purchasing spouse made into the property could complicate the final decision.

What do you do if it is marital property?

When the house is clearly separate property, it is not subject to division. When it is marital property, the couple can choose to sell the home and split the money, or one spouse may buy out the other and retain full ownership. When the couple has minor children, the court may order both spouses to remain on the deed and allow the custodial parent to remain in the home with the children for a period of time. The standard for this determination is what is in the best interests of the children.

As with most divorce cases, the outcome is generally better when both spouses agree on the terms from the start.