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Thank you for your question. You said that you received family money several years ago--was that in the form of an inheritance, or a gift?
You said that you took some of what was left and used it to buy a home in another state--did the funds cover the cost of the purchase entirely? Or have you been making payments toward a mortgage since the time of the purchase?
Were you living in California at the time that the out-of-state home was purchased?
Have either your or your spouse filed for divorce or legal separation?
But nothing has been filed yet, correct?
The danger with this sort of situation is that you would normally expect the townhouse to be a separate property/community property hybrid. California distinguishes between separate property and community property. Community assets are generally those assets acquired after the date of marriage and before the date of separation, except assets acquired by gift, devise, or inheritance. Community property assets are divided equally between spouses. Separate assets are those assets acquired before marriage, after the date of separation, or during the marriage by gift, devise, or bequest. Separate property assets are not divided. When you have real estate, it is not uncommon that the home is initially purchased with separate property (such as with an inheritance) but there is an ongoing mortgage paid with community property (earnings during the marriage). In those situations, the value of the home ends up being divided, but it is not a 50/50 split--the community property portion is split 50/50, but the separate property portion is not...
Family Code sec. 1102(a) provides in pertinent part that:"... either spouse has the management and control of the community real property, whether acquired prior to or on or after January 1, 1975, but both spouses, either personally or by a duly authorized agent, must join in executing any instrument by which that community real property or any interest therein is leased for a longer period than one year, or is sold, conveyed, or encumbered."In plain English, this means that one spouse generally can't sell real estate with a community property interest without the cooperation of the other.
Hypothetically, if the home was sold anyway, or with the permission of the other spouse, the other spouse's share of the home would not be forfeited by virtue of the transaction, so they would be entitled to reimbursement. I emphasize that a 50/50 split would not occur... it might be 90/10, or 70/30, for example.
The nuances of every case are different, so if your attorney is telling you to go ahead and sell, I would defer to that person's judgment, but this is the general rule.
An interspousal transfer deed does not change this situation under most circumstances. It is not uncommon for a transfer of that nature to take place--the most common reason that one spouse has bad credit. However, it does not change the community property nature of the home unless otherwise agreed by the parties in writing. Even if it did change the home from community property to separate property, any subsequent community property funds paid toward the mortgage would still create a community property interest in the home.
As for his not contributing financially to the home, that's just not the nature of community property. The community property laws were originally designed as more of a protection to the wives who would stay at home and raise the kids while the husbands worked and advanced their careers; once the couple marries, the assets generated during the marriage are considered to be earned by the marital community, not by the individual. He didn't contribute financially to the home with your earnings, but under the law, neither did you. The community contributed financially to the home. As 1/2 of the community, he is entitled to 1/2 of the community portion.
I always want to give out good news, but I don't always have the luxury of doing so. The best i can do is to be straightforward so that you can understand the law and be informed. Under the law, you and your husband together make up the community.
Does that make sense?
That's correct---the silver lining here is that you wouldn't expect a 50/50 split. I don't have enough to estimate what the fraction would be, but if the down payment came from an inheritance, it wouldn't be 50/50 under normal circumstances. There can always be a monkey wrench--perhaps, for example, you signed a prenuptial agreement--but it wouldn't be 50/50 if the situation was normal.
It is a difficult subject matter to grasp, so I am glad that I was able to make a little bit of sense of it for you. Do you have any other questions that I can answer?
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