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Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Family Law
Satisfied Customers: 113507
Experience:  Experienced attorney: Family law, Estate Law, SS Law etc.
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I purchased a property on july 2011, under my wifes and my

Customer Question

Hi, I purchased a property on july 2011, under my wifes and my name as joint tenants.
The property was my moms house, that i lived there for the previous 15 years. I had to include my wife on title to get qualified for a loan. The down payment was seasoned in my account for a year. I added her in my account in may 2011 as a joint account holder so that the money can be seasoned under her name as well. We got married in june 2011.
Ultimately if she deeds the property to me will it be my sole property? Or in a divorce court will it be community property if aquired after marriage? Or will the evidence i have prevail that it was my moms house, i was leaving there, the money was in my account originally, she deeded her interest to me? or can she say she didnt know what she was doing?
Submitted: 1 year ago.
Category: Family Law
Expert:  Roger replied 1 year ago.

If her name is ***** ***** deed, then she owns a 1/2 interest, but if she deeds her interest to you, then she would have no interest.....and community property issues wouldn't arise in this instance because she has deeded her interest to you during the marriage.....so you should be considered the sole owner.

Expert:  Roger replied 1 year ago.

You likely would want to have an interspousal transfer deed issued from her.

Expert:  Roger replied 1 year ago.

Here's a good link you can read: http://www.divorcenet.com/resources/divorce/marital-property-division/interspousal-transfer-grant-deeds-vs-quit-claim-deed

Expert:  Roger replied 1 year ago.

Here's a good link to a sample document: http://ceb.com/jcforms/njdeedi.pdf

Customer: replied 1 year ago.
but i've hear that in california divorce court they usually consider it community property, regardless of the deed.
Expert:  Roger replied 1 year ago.

An intefspousal deed is the way to transfer her interest to you and to make it non-marital property.

Customer: replied 1 year ago.
the other spouse can claim they didn't know what they were doing by signing the deed, and that since it was original community it stay community. is that true?
Expert:  Roger replied 1 year ago.

The law presumes that if someone signs a document, he/she has read it. Absent a showing of fraud, the deed will stand....and fraud is VERY hard to prove.

Customer: replied 1 year ago.
i understand that, but doesnt california divorce law usually award it community since it was aquired during marriage regardless of whos name the deed is? Will my evidence help me that the downpayment was originally in my account, and that it was my moms house and that i lived there for years in case of a divorce? after she signs the interspousal transfer is it safer if i transfer it to my trust which was created before i got married?
Expert:  Roger replied 1 year ago.

Yes, but if the spouse gives up his/her interest in the property via a deed, then that's a voluntary abandonment of the property interest.

Customer: replied 1 year ago.
but if the spouse claims she didn't know she was giving up her community property rights, will my evidence make a difference?
Expert:  Roger replied 1 year ago.

It really should make no difference whether you transfer it to a trust or not.

Expert:  Roger replied 1 year ago.

If she disclaims her interest in the property, then that's all that should matter.

Customer: replied 1 year ago.
in case she makes the claimthat she was clueless in signing, will my evidence help me?
Customer: replied 1 year ago.
i a divorce court will the judge ask if the properties owned were aquired before or after marriage?
Expert:  Roger replied 1 year ago.

It would.....and the fact that she signed the document is the best evidence. As I said, the law presumes that if someone signs a document, it is PRESUMED that the person read and understood what he/she was doing.

Customer: replied 1 year ago.
is it better to have an attorney or escrow officer draw the deed?
Expert:  Roger replied 1 year ago.

It's best for an attorney to draw it up and have him/her advise your spouse about what she's doing as well.

Customer: replied 1 year ago.
will the property taxes go up in a transfer of that magnitude?
Expert:  Roger replied 1 year ago.

I don't know about that. You'd have to call the local tax assessor's office and ask.

Customer: replied 1 year ago.
the reason im asking so many questions is because of heard that in california community property do trump interspousal transfers deeds in court. there are articles on that
Customer: replied 1 year ago.
how does that work do i nedd a post nuptual agreement to be safer
Customer: replied 1 year ago.
is she entitled to post marriage appreciation on the property?
Expert:  Roger replied 1 year ago.

If she would sign the deed and a post-nuptial, that would certainly be best as it would eliminate the community property issue.

Expert:  Roger replied 1 year ago.

You should consult a local lawyer about drawing up the documents for your spouse to execute. Thanks for your question and have a great night. Our 10 minute session has long since ended and the question is about to time out. Good luck and have a great night.

Expert:  Law Educator, Esq. replied 1 year ago.

Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.

I am a DIFFERENT CONTRIBUTOR.

Under CA community property law, all property acquired during marriage is PRESUMED community property. This PRESUMPTION is a rebuttable presumption. What this means is that even though the house was acquired in both names and it is now community property, if the spouse does a spousal transfer deed (which by the way under the CA different tax Propositions IS NOT an event that causes a tax change) then they have given up their community property interest in the home. So it is NOT true that if she agrees and gives a spousal transfer deed (quit claim) to you, that the court would still consider it community property. In fact, when filing these deeds, she also must sign what is called a "waiver of community spousal interest" and it is simply a document that is written that states she has transferred her legal interest in the property to you and waives any community property interest in the home. She signs that with the quit claim deed and both of those are filed with the recorder of deeds and the court WILL NOT find that this property is community property in the event of divorce.

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