margarita68 said:
we just bought a house, the house is in his name only due to that i have a bankruptcy on my credit record. the title of house reads as "my husbands name, a married man as his sole and separate property" my question is if we divore does that title mean that he is the only owner of the house? even though that the down payment money is both of ours, and i am helping him pay the house. we live in the state of california
please help!!!!!!!!
My response:
Take it easy, take a deep breath. You live in California, a Community Property State !
The only thing that "title" to the house gives him the right to do is to sell the house without needing your signature - - that's it. But, he can't even do that when a Dissolution action is pending (take a look at the automatic Restraining Order on the front and back of a California Dissolution Summons).
In California, a spouse is always entitled to their Community Property share of ALL property (real or personal). In many cases the most significant asset that the parties own is their family residence. Ownership of the residence in joint tenancy form creates a presumption of community property, and is thus subject to division in a proceeding brought under the Family Code. [Fam C §2581] Further, though the asset may be community property, in many situations it is subject to conflicting claims for reimbursement and separate property interests.
If one of the spouses brings to the marriage a residence that is subject to an encumbrance, which encumbrance is paid in whole or in part with community property during the marriage, the property, while remaining separate, will develop a community property interest that must be divided, assuming the contributions were not gifts to separate property. [Re Marriage of Moore (1980) 28 Cal 3d 366, 168 Cal Rptr 662, 618 P2d 208; Marriage of Marsden (1982 1st Dist) 130 Cal App 3d 426, 181 Cal Rptr 910]
In Moore, the court set forth the formula for calculating the separate property interest in the residence which the wife had purchased shortly before marriage. That amount was calculated by crediting her separate property with the down payment and the full amount of the loan less the amount by which community property payments reduced the principal balance of the loan. That sum was divided by the total purchase price of the property to create the percentage of the separate property interest in the increased value of the property. Similarly, the community interest was determined to be the amount by which community property payments reduced the principal of the loan divided by the purchase price. The Moore court only considered payments that reduced principal, and specifically excluded any credit for payments made for interest, taxes and insurance. [Re Marriage of Moore (1980) 28 Cal 3d 366, 168 Cal Rptr 662, 618 P2d 208]
So, sit back, take it easy - - you're protected by law !
IAAL
