CA – Who gets claim of property; can a trust protect it from probate?

[marlievinter]

Asking from California.
My husband is currently claiming that he wants to get a divorce. We've been residing in a house that serves as a primary residence and is our only property since 1997 when our daughter was born, but the deed is only on my name. I am the sole income earner in the house and have made every mortgage, utility, tax, etc payment since we've moved in and my mother was the one who put the down payment.
Our two girls are adults now and I dream of leaving this house for them, but my husband constantly threatens that he will force me to sell the property or have it go into probate so that he can take claim on half of the money.
Is it even possible for him to take claim on the property that is only on my name and that I've been paying for?
If so, would putting the property as a trust for my children protect it from being sold in the divorce?

 

[Taxing Matters]

You live in CA, a community property state. You evidently bought the property after you were married. Thus, in the ordinary course of things half your earnings are his community property and so too would half the home be his community property as well. So the fact that the house is in your name and you were the sole income earner does not make the house exclusively yours. He would own half of it, absent a valid agreement between you two to the contrary. So if you divorce, he's generally entitled to half the house (or the value of that) and should you die before him while still married he still keeps his half of the house — you can't control his half with a will or trust.

If you want so badly to keep the house I suggest you see a family law attorney for ways to do that. It will have to involve giving him something of value to replace his community property interest in the house, though.

 

[LdiJ]

Asking from California.
My husband is currently claiming that he wants to get a divorce. We've been residing in a house that serves as a primary residence and is our only property since 1997 when our daughter was born, but the deed is only on my name. I am the sole income earner in the house and have made every mortgage, utility, tax, etc payment since we've moved in and my mother was the one who put the down payment.
Our two girls are adults now and I dream of leaving this house for them, but my husband constantly threatens that he will force me to sell the property or have it go into probate so that he can take claim on half of the money.
Is it even possible for him to take claim on the property that is only on my name and that I've been paying for?
If so, would putting the property as a trust for my children protect it from being sold in the divorce?

You have been using martial funds to pay for the house (your salary) so the house is community property. Therefore its half his. However, you might be able to claim that the down payment is separate property.

I don't know what he means about having it go into probate, because that doesn't have anything to do with divorce, but he can get a judge to force you to either sell the house or refinance for enough to buy out his share of the equity unless there are other assets that you can offer him in exchange for the equity in the house.

He would also be entitled to 1/2 of any other assets that accrued during the marriage, like retirement funds etc. You would be entitled to 1/2 of any assets he accrued during the marriage as well.

 

[FlyingRon]

Right, as the two previous posters say, your immediate issue is the divorce rather than probate because probate doesn't come into play until death. Divorce appears more imminent.

The other thing, if your soon-to-be-ex is willing to do so is to disclaim his interest in the property or perhaps transfer it to the daughter (if I did the math right, she's now an adult, it's problematic to leave title to property to minors).