There are many ways to divide real estate in a divorce
Here are some of the Common Questions we are asked about Real Estate or the Family Residence in Divorce.
Q: Who gets the Family Residence? There are three common possibilities. The first two are that either you or your spouse will receive the family residence in the division of assets. The third possibility is that it will be sold. It is best to meet with one of our attorneys at Family Law Center so they can explore the options you have and advise you about the law.
Example: If you and your spouse bought a family residence or any real estate together after getting married, and paid the mortgage from earnings, the law says the residence/real estate is a “marital asset.” In the divorce, each spouse is entitled to a “fair and equitable share” of all the marital assets. Giving 100% of the residence/real estate to just one spouse is not fair and equitable, unless you have some other way of compensating the other spouse. Common options are to award other assets (like savings or retirement) to the other spouse to compensate for their share of the residence/real estate.
Q: We want to sell the residence/real estate, is this allowed? You and your spouse agree to sell the residence/real estate) and divide the money from the sale 50%-50%. Here are some of the issues that come up: What if you owe more on the mortage than the appraisal says the residence/real estate is worth?While the residence is listed for sale, who can live there?
How will disputes over accepting an offer for the residence be resolved? You think the offer is too low, spouse wants to sell. Who will pay the mortgage, insurance, and taxes until the residence is sold?What if the roof gets a leak? Who will pay for that? What does it mean to divide the sale money 50%-50%? What expenses and costs come out first?If the residence is not sold before the divorce is final, how should the residence be awarded in the divorce settlement agreement?
Should the spouses stay as “joint tenants” or each own half, as “tenants in common” or something else?It is best to visit the Family Law Center, Sacramento, California so that one of our attorneys can help you with your particular real estate situation and needs, and can advise you how to best protect your interests. Our attorneys can add terms to the marital settlement agreement so they say exactly what you agree to in your divorce.
Q: I bought the real estate before we got married, it’s mine, right?To divide property under California divorce laws, you need to know the difference between “marital” and “non-marital” or “separate” property. “Marital” assets must be divided in a fair and equitable way. “Non-marital/separate” assets are usually not divided between the spouses. A non-marital/separate asset is usually awarded to the spouse who owned it before the marriage. But in many cases the marital estate will have earned an interest in the real estate for contributions made to the principal pay down of the loan or improvements made to the house with community funds. This right of community reimbursement will be determined based upon the value or equity in the real estate. If the property nor the equity position has not increased in value there may be no community interest.