possible divorce, can she get half of the house?

[85percent]

What is the name of your state (only U.S. law)? California

Hi, my wife and I possibly could be heading towards divorce in the near future. The home mortgage is under my name, yet I have her name on the title. In the beginning, I did have her sign a document (and had it notarized) stating that if we were to divorce, she would not receive half of the value of the house, that I would only need to pay her the money that she put towards the mortgage every month. (she has contributed about one-third of the mortgage payment for the past 5 months or so).

My question is, if we were to divorce, because of this document that she signed, I would legally only need to pay her what she paid me towards the mortgage, correct?

 

[LdiJ]

What is the name of your state (only U.S. law)? California

Hi, my wife and I possibly could be heading towards divorce in the near future. The home mortgage is under my name, yet I have her name on the title. In the beginning, I did have her sign a document (and had it notarized) stating that if we were to divorce, she would not receive half of the value of the house, that I would only need to pay her the money that she put towards the mortgage every month. (she has contributed about one-third of the mortgage payment for the past 5 months or so).

My question is, if we were to divorce, because of this document that she signed, I would legally only need to pay her what she paid me towards the mortgage, correct?

I doubt that the document would stand. How long have you owned the home and how much equity do you have? Generally, she would be entitled to 1/2 of the equity, unless you can demonstrate that you made a large down payment from legally separate funds.

 

[85percent]

I have owned the home for almost three years. She has contributed a thurd of the mortgage payments for about 8 months. I have about $70k in equity on the house.. so if she were to receive half of the equity, I would need to sell it right?

 

[LdiJ]

I have owned the home for almost three years. She has contributed a thurd of the mortgage payments for about 8 months. I have about $70k in equity on the house.. so if she were to receive half of the equity, I would need to sell it right?

Its too bad that you put her on the house as an owner. If you had not, then she would only be entitled to 1/2 of the equity gained during the marriage. However, since you put her on the deed, you basically gifted her 1/2 of the equity. You would not have to sell the home, you could get a home equity loan to pay off her share, or you could give her other assets in exchange for her share.

If you hire an attorney, you might have a shot at preserving more of your equity, but you would need to factor attorney fees into the mix.

 

[85percent]

Great information. Thank you

 

[85percent]

Her wedding ring is worth roughly $30k. I wonder if this could be used towards her half of the equity I would owe her?

 

[LdiJ]

Her wedding ring is worth roughly $30k. I wonder if this could be used towards her half of the equity I would owe her?

Nope, that is her separate, personal property. Also, jewelry is only worth about 20% of what it was originally purchased for on the resale market.

 

[Just Blue]

Her wedding ring is worth roughly $30k. I wonder if this could be used towards her half of the equity I would owe her?

Her ring is her own...Why do you think you can "use it"?

 

[Eekamouse]

Her wedding ring is worth roughly $30k. I wonder if this could be used towards her half of the equity I would owe her?

I think she'll be much happier once the divorce is final. You don't seem like you are a very nice person. Well, except when you put her name on the deed. Did you own the house prior to the marriage?

 

[85percent]

I did own the house prior to the marriage. I put her on the deed when we got married and then she moved in.

Sounds like I'm financially screwed if this happens. Might be easier to just live separate lives in the same house.

 

[Just Blue]

I did own the house prior to the marriage. I put her on the deed when we got married and then she moved in.

Sounds like I'm financially screwed if this happens. Might be easier to just live separate lives in the same house.

But why do you think her wedding ring can help you?

 

[FlyingRon]

I did own the house prior to the marriage. I put her on the deed when we got married and then she moved in.

Again once you put did that it ceased to be your separate property and became the community property of the marriage. Do you know what marriage means in California? Apparently not.

 

[tranquility]

This is a far more complex question than the others are implying. I will try to give principles that address the issues without too much analysis. Clearly, an attorney would be needed as some of this would disappear in negotiations.

California is a community property and not a marital property state. That means that appreciation during marriage, while addressed in the calculation, does not automatically become community property. Also, title/deed, while presumptive, is not determinative. While some cases have had a deed change to be enough of a writing to change separate property into community, more have required writings showing very specific intent to have a transmutation. Finally, money earned by labor during the marriage is community property. Say both paid the mortgage from wages and OP put in 2/3 and his wife put in 1/3, the community would have been considered to have paid in 100%. (There is an exception where wages are paid from an account that has not been co-mingled to the mortgage by the owner of the separate property. There, the community would not gain any portion of ownership of the property only a right of reimbursement for the amount paid.)

With that said, the cases that describe how the community's ownership of the separate property is calculated is In re Marriage of Moore (Mortgage fully paid off.) and In re Marriage of Marsden (Mortgage still in effect.) and is called the Moore-Marsden calculation. I could try to explain it, but there are so many good calculators and explanations on the web I won't.

 

[85percent]

Thank you for the reply. Sounds like a lawyer might be a good choice if it cannot be resolved peacefully.

Now, she has recently stopped contributing to the mortgage. So I plan on trying to negotiate with her by telling her that I will pay her for everything she has contributed thus far, as long as she signs her name off the title of the house. I am thinking that would be best for me financially if I can successfully negotiate that.

 

[Zigner]

Thank you for the reply. Sounds like a lawyer might be a good choice if it cannot be resolved peacefully.

Now, she has recently stopped contributing to the mortgage. So I plan on trying to negotiate with her by telling her that I will pay her for everything she has contributed thus far, as long as she signs her name off the title of the house. I am thinking that would be best for me financially if I can successfully negotiate that.

Yes, that would probably be best for you. If she's got half a cell in her brain, don't expect her to agree...but give it a shot.