It is extremely difficult to get case law from the internet and I do not have have California case law in my office. However, I was able to find 2 things that should prove very helpful.
First, the California Family Code addresses this issue in Sections 850 through 853, but Section 850(b) is determinative of your situation.
I also found a very recent case, decided April, 2010, which has not been published yet. They do not authorize publication until it has been proofread. The case is In re the Marriage of Gabriel and Kimberly Fornidario, Court of Appeal, Fourth Appellate District, Division Two, E 045156 (Superior Court No. RFLRS(NNN) NNN-NNNN.
California Family Code Section 850(b) is decisive in your case. It states that,
"...married persons may by...transfer with or without consideration ... Transmute separate property of either spouse to community property"
CALIFORNIA FAMILY CODE
Subject to Sections 851 to 853, inclusive, married persons may
by agreement or transfer, with or without consideration, do any of
(a) Transmute community property to separate property of either
(b) Transmute separate property of either spouse to community
(c) Transmute separate property of one spouse to separate property
of the other spouse.
851. A transmutation is subject to the laws governing fraudulent
Section 852 .
(a) A transmutation of real or personal property is not valid
unless made in writing by an express declaration that is made, joined
in, consented to, or accepted by the spouse whose interest in the
property is adversely affected.
(b) A transmutation of real property is not effective as to third
parties without notice thereof unless recorded.
(c) This section does not apply to a gift between the spouses of
clothing, wearing apparel, jewelry, or other tangible articles of a
personal nature that is used solely or principally by the spouse to
whom the gift is made and that is not substantial in value taking
into account the circumstances of the marriage.
(d) Nothing in this section affects the law governing
characterization of property in which separate property and community
property are commingled or otherwise combined.
(e) This section does not apply to or affect a transmutation of
property made before January 1, 1985, and the law that would
otherwise be applicable to that transmutation shall continue to
(a) A statement in a will of the character of property is not
admissible as evidence of a transmutation of the property in a
proceeding commenced before the death of the person who made the
(b) A waiver of a right to a joint and survivor annuity or
survivor's benefits under the federal Retirement Equity Act of 1984
(Public Law 98-397) is not a transmutation of the community property
rights of the person executing the waiver.
(c) A written joinder or written consent to a nonprobate transfer
of community property on death that satisfies Section 852 is a
transmutation and is governed by the law applicable to transmutations
and not by Chapter 2 (commencing with Section 5010) of Part 1 of
Division 5 of the Probate Code.
In the case of In re the Marriage of Gabriel and Kimberly Fornidario, stands for the proposition that community property can be transmuted to separate property and, therefore, vice versa.
In this case, property was being purchased by a husband and wife, but because of the wife's poor credit, they could not get financing. The wife transferred her interest to the husband who secured the necessary financing. When the parties divorced, wife claimed that the property was community property and that she had an interest in it. The lower court held it was the husband's separate property because of the deed the wife executed in favor of her husband.
The wife appealed. The Court of Appeal upheld the lower Court's decision, stating that a transfer of an interest in property is valid between husband and wife with or without consideration.
Although the case involved a transfer under Section 850(a), the same result would be found under Section 850(b), i.e., an interest in separate property being transferred to the husband, threby transmuting it to community property. You have an even stronger case here because the transfer to you was with consideration since you took on the obligation to pay the mortgage loan.
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