Divorce and determining community property (the house)

[Loveyourguts]

What is the name of your state?What is the name of your state? California. In Feb. of 02, my boyfriend had me go house hunting with him. We found 2 houses we really liked and he made an offer on it for he and his kids to live in, and he said he was going to have his father move in and have the extra room used for a music room. I thought that was fantastic. Ok...blond moment I guess, that next night he asked me to marry him and live in the house with he and his kids. That the father thing and music room was a joke. Of course I said yes and we moved in the same day he closed on the house. The next day we were married.

At the time, I was a stay at home mom (for my son) and it was agreed that I would take care of his 2 teens too.

Well, 3 months later, he lost his job. My husband told me that I needed to go to work so that we would not lose the house. Of course that was so important to me....our family. So that Aug. I started working full time and he still didn't have employment. Our finances were alway commingeled.

In Nov. of 02 he wanted to refi to get a better rate. No biggie to me. The doc signer came to our house with the 2 sets of docs, as we had a 1st and a 2nd mortgage. My husband applied for a stated income loan (his income, though he did lie) and left me out/off of the loan. However, I was added to the Deed of Trust and vesting went from his name, being unmarried, to BOTH of are names as husband and wife on BOTH of the Deeds of Trust.

We were going to refinance again in July of 03 when rates where so low. That deal fell through, only after he had put me on Title and gave me Power of Attorney to sign the docs for him since he had found a job and had to travel out of town when the loan docs where going to be ready. Again, I was not on the loan though....which didn't matter really, this loan fell through. His job ended a few months later

Once again it was months and he hadn't found employment and I continued to work my behind off. I was not healthy and the working made me even more unhealthy.

In Oct. of 03 he wanted to take out a line of credit against the house because we were getting so behind in bill. Again, he qualified for a stated income (again he lied) and I was again, not put on the loan, but I was still on the Deed of Trust and husband and wife as joint tenants

By Feb. of 04, My doc's wanted me to go on disability because I was so ill. My husband said I couldn't because we needed all of my income and also the health benefits for our family that my employment provided. Within 2 weeks, I had feeding tubes to sustain my life and I still was forced to work...again, our finances were community property and I asked if it were possible if we could move since I was having a very hard time working, that way the mortgaged wouldn't be so hard to pay for me. Nope, he wanted nothing to do with entertaining the idea.

My job was so worried and concerned for me and the hatered towards my husband grew....for all of us.

Finally in June, they forced out on disability and said they could not watch me die and so they were going to take care of me.

By Aug. I filed for divorce. 2 weeks later, I suffered a stroke and now I am permanently disabled, unable to go back to work.

Now, we are in the Dividing Assest and Community Property faze with just a month and a week to be "divorced". His attorney, he and even my attorney, believe I do not have an interest in the house. I am so depressed over this. I did not work my self nearly to death for us to keep the house when he said I just lived there! I need some advice PLEASE.

[divgradcurl]

You'll have an interest in the house, but it may not be much.

Since he owned the house prior to marriage, any down payments he made and any principal he paid on the house prior to the marriage, along with any increase in the value of the home prior to the marriage, will belong to him alone as separate property.

Any principal (not interest) paid on the house during marriage, along with any rise in the value of the house during marriage, would be split 50-50 between the two of you as community property. However, this assumes that the house is worth at least as much as it was worth at the time you got married.

The fact that you may not have been on the deed at first is irrelevant as long as comingled funds were used to make the house payments.

It may be that the house has lost value, or the mortgage situation is sufficiently complicated, or that so little was paid into the house during marriage, that your lawyer doesn't believe that it is worth it to pursue -- you should ask him or her to explain it to you in detail.

[Loveyourguts]

I appreciate it. Just a few things to better help and maybe for me to best understand: *smile*

The house was purchased 1 day before we married for $320k.

It is now worth at least $520k

In one day I can't see how he would have been able to do anything. It was a $1000 down purchase.

His attorney and even mine said the the Delaney case has set a presidence in CA. I have read the case and I don't believe this has ANYTHING to do with our case. What do I need to do and what type of attorney do I need to consult with my attorney and show her that I do own the house jointly?

Thank you!

[nextwife]

Originally Posted by Loveyourguts

The house was purchased 1 day before we married for $320k.

It is now worth at least $520k

In one day I can't see how he would have been able to do anything. It was a $1000 down purchase.!

He must be a veteran. Else it's pretty hard to buy a $320,000 house with only $1000.

So, it has appreciated by $200,000. How much is now owed against it? You stated you refied. Cash out refi, I'm quessing?

[divgradcurl]

He must be a veteran. Else it's pretty hard to buy a $320,000 house with only $1000.

Just FYI, around here (CA Bay Area) they are advertising no-down loans up to $1 million for first-time home buyers...

So, it has appreciated by $200,000. How much is now owed against it? You stated you refied. Cash out refi, I'm quessing?

That's what I'm thinking...

[divgradcurl]

Loveyourguts,

Are you talking about in re Marriage of Delaney?

If so, I think I see where your lawyer is coming from. In Delaney, the court held that a new mortgage (or a refi in your case), that results in seperate property (which your house was, since your spouse owned it prior to the marriage, even if it is but one day) being transmuted into community property (the joint tenancy) is presumed to be the product of "undue influence" and that it is YOUR burden to prove that you obtained the one-half interest in the house without undue influence. If you can't meet that burden, then the house is presumed to remain seperate property.

That's how Delaney applies to your situation. However, your case is not exactly like Delaney's in that part of the house was purchased with community (comingled) funds, which should give you some interest (but not half) in the house, that interest being 1/2 of the principal part of the house payments paid from the community funds, plus some percentage of the increase in the value of the house.

However, that still may not net you anything -- because if you took a large second mortgage, or otherwise refinanced it until it has no equity, then there is nothing to give you. I know you stated that the mortgages are in his name alone, but since the mortgages were acquired after you were already married, and were used to enhance (or pay for) expenses of the community, and were repaid using community funds, they are community debts.

The short answer -- if there is no equity in the house, you won't get anything. Whoever gets the house will be responsible for the mortgage(s).

You can hire another lawyer if you want to get another opinion.