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Ca Home Ownership Upon Divorce

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K

KATTT39

Guest
What is the name of your state? California

My husband and I have been married for 7 years. During a separation approx 3 years ago my husband purchased a home. My signature was required on a Quit Claim Deed but my husband assured me that he would put my name on the deed.

My husband and I reconciled and moved into the house together. Every payment on the house has been made with community earnings. After living in the house for 1 year we decided to refinance and again I was required to sign a Quit Claim Deed. I wrote up an agreement between myself and my husband stating that one half of all the equity in the house was mine and his signature was notarized. Two months later my name was added as a Joint Tenant.

We are now divorcing and my husband has hired an attorney. He has been advised that I may only be entitled to the equity that has accrued since my name was added to the title.

My question is - What does Real Estate Law say about this? and does Family Law - Community Property Law prevail in the sense that the house was purchased with community earnings it would then be community property and I would be entitled to half in the state of California, right?
 


I AM ALWAYS LIABLE

Senior Member
My response:

His attorney is incorrect. You are entitled to an proportionate community share of the equity even while you were separated because you never mentioned that either of you had filed for divorce. Even though he purchased the house during a separation, it is deemed "acquired" during marriage within the meaning of Family Code § 2581, because the spouses converted it into joint tenancy property during marriage. [Marriage of Neal (1984) 153 Cal.App.3d 117, 123-125, 200 Cal.Rptr. 341, 345-346]

Unless your husband can introduce evidence of a writing showing he was to maintain his separate property interest, the home is presumptively community property. The reason for which the joint tenancy conversion was made is immaterial [Ca Fam § 2581; and see Marriage of Neal, supra]

It is the express designation of joint title during marriage that invokes the presumption. [Marriage of Neal, supra, 153 Cal.App.3d at 124, 200 Cal.Rptr. at 346; Marriage of Anderson, supra, 154 Cal.App.3d at 579, 201 Cal.Rptr. at 502] Accordingly, if title to a separate property residence or a separate property bank account, or any other separate property, is changed to joint title form between the spouses during marriage, the property is presumptively community property under Ca Fam § 2581. [See Marriage of Rico 10 Cal.App.4th at 710, 12 Cal.Rptr.2d at 661--house acquired by parties as tenants in common before marriage, converted to joint tenancy during marriage]

The above rule applies regardless of the reason for which title was converted: i.e., even if the sole purpose was to satisfy the demands of a lending institution (as where separate property is refinanced during marriage, and as a condition thereto the lender requires title to be placed in joint tenancy), the change in the form of title brings the presumption into play. [Marriage of Neal, supra, 153 Cal.App.3d at 125, 200 Cal.Rptr. at 346; Marriage of Anderson, supra, 154 Cal.App.3d at 579, 201 Cal.Rptr. at 502; Marriage of Martinez (1984) 156 Cal.App.3d 20, 28, 202 Cal.Rptr. 646, 651; Marriage of Kahan (1985) 174 Cal.App.3d 63, 69, 219 Cal.Rptr. 700, 704]

You can send me my fee, care of FreeAdvice.

IAAL
 
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K

KATTT39

Guest
Thank you to I AM ALWAYS LIABLE - Your answer is exactly what I wanted to hear. And thank you for the code section and the case law, I have access to a law librabry and will be doing some research to support my pleadings.

I work in the Solano County Superior Court and my husband, who's attorney practices in San Francisco, advises me last night that the first thing his attorney is going to do is to change venue due to my employment with the courts. I will have to fight this if he proceeds with this, I am willing to disqualify the family law judges and commissioners that I work closely with but it would be a great hardship to me financially to have to make my appearances out of the area and there may be a point when I will need to find an attorney and I will be stuck looking for someone in San Francisco instead of having a local attorney that I know is good.

Thank you again.
 

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