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Barrister
Barrister, Lawyer
Category: Real Estate Law
Satisfied Customers: 33714
Experience:  15 years real estate, Realtor. Landlord 26 years
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I created a family trust in 2009 with 2 properties in the

Customer Question

I created a family trust in 2009 with 2 properties in the family trust. I purchased a property in 2011 2 months after i got married under my wifes name since my credit was poor. now the property is under both of our names as joint tenants. if i take her off title and put the property in the trust wil i be safe in a divorce in california?
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Barrister replied 1 year ago.
Hello and welcome! My name is ***** ***** I will try my level best to help with your situation or get you to someone who can.
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Will she agree to transfer her interest over to you to make you the sole owner?
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thanks
Barrister
Customer: replied 1 year ago.
she might but the property was purchased during marriage in california is it community
Customer: replied 1 year ago.
i paid for everything down payment, remodeling, payments
Customer: replied 1 year ago.
if i become sole owner, whats the next step
Expert:  Barrister replied 1 year ago.

Ok, whether it would be safe depends on whether she will agreed to voluntarily deed her interest over to you via a deed. You can't legally "take her off title" if she doesn't agree since she is an equal owner with you on the property.

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But if she did agree to deed it over to you, then it becomes your sole separate property and no longer community property, so you could do whatever you wanted with it, including putting it into your trust.

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thanks

Barrister

Customer: replied 1 year ago.
i thought in california during marriage any property that is purchased is community property?
Customer: replied 1 year ago.
no matter who is on the deed
Expert:  Barrister replied 1 year ago.

That is partially correct. That means that you each own exactly 50% of the property. But if she conveys her 50% to you via a deed from her to you, she is giving you her 50% and then you would be the sole owner of the property and it would be considered your separate property.

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Community property can be converted to separate property and vice versa by one party either deeding their interest over to the other, or by being added to a deed.

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thanks

Barrister

Customer: replied 1 year ago.
after that is it safer to put that property in a trust since the trust was formed before marriage
Customer: replied 1 year ago.
what about a bank account that has money, that is under my name can she come after the account if its a sole account even though we're married?
Expert:  Barrister replied 1 year ago.

Once it is back in your sole name, it is your separate property. It would add an extra layer of protection to put it into a trust solely owned by you though.

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what about a bank account that has money, that is under my name can she come after the account if its a sole account even though we're married?

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Any money put into it during the marriage is considered marital money since all assets acquired during a marriage are automatically marital assets, excepting gifts and inheritances. So if money has been put into the account during the marriage, the account is a community property asset and owned equally regardless of whose name it is in.

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Now if the money in the account was separate prior to the marriage and no money has been put into it that has been earned during the marriage by either you or spouse, then it would remain a separately owned asset indefinitely.

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thanks

Barrister

Customer: replied 1 year ago.
what if put the bank account in the trust will that protect me? does a postnuptual agreement protect me in divorce court?
Expert:  Barrister replied 1 year ago.

what if put the bank account in the trust will that protect me?

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She could still claim half the money if money was deposited into it during the marriage that was earned by either of you.

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does a postnuptual agreement protect me in divorce court?

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Yes, that is the entire purpose of an antenuptial agreement....to determine what assets are whose in the event of a divorce.

Customer: replied 1 year ago.
does the bank account have to be an old account to prove the money was there before marriage? or if i show a statement before i got married that i had such an amount is that good enough?
Expert:  Barrister replied 1 year ago.

Yes, the account has to be opened before marriage as well. Any account opened during the marriage is a marital account and is subject to division. If you took your pre-marriage money and put it into an account with money that was contributed during the marriage, it all becomes marital money due to "commingling".

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However, if your original money is still sitting in the account, you can use a doctrine called "tracing" to try and prove that $XXX in the account came from your separate assets so you should recover that from the account. But it is up to the judge as to whether it has become so mixed as to be inseparable or not.

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For example.. you put $100K or pre marriage money in an account after marriage. During the marriage you add another $50K. Then you divorce 2 years later. This is easy to trace and you would get your $100K back and the $50K would be split.

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But if you put the $100K in and have been married ten years and you both have contributed $200K each to the account and things have been bought out of it, sold with the money going back into it, loans taken out and repaid, expenses paid out of it, etc. then the judge is going to rule it is all marital money.

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If you feel your original question and any related follow ups have been answered, I would very much appreciate a positive rating on the answer I have provided so I receive credit for my work. If you have a new question the JustAnswer folks require that you start a new question page, but you can request me by putting "For Barrister" in the caption and they will get it to me.

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thanks

Barrister

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