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Lucy, Esq.
Lucy, Esq., Lawyer
Category: Family Law
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Experience:  Attorney with experience in family law.
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my wife and I might be getting a divorce, we are mortgaging

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my wife and I "might" be getting a divorce, we are mortgaging a home which is in both our names, but we also have an equity loan (fixed) that is in my name...what would happen if we get a divorce?
Submitted: 6 years ago.
Category: Family Law
Expert:  Lucy, Esq. replied 6 years ago.

My name is XXXXX XXXXX I'd be happy to answer your questions today.

California is a community property state. That means that all property acquired during the marriage will be split equally, regardless of whose name is XXXXX XXXXX With real estate, there are a few options:
1. One spouse can refinance the house in his name only, and pay the other spouse for half the equity at the time of divorce.
2. The parties can sell the house and split the proceeds, after the loans are paid, equally.
3. One spouse can stay in the house, and the judge can award the other spouse different assets that equal half the equity in the home.

The fact that the equity loan is in your name only makes no difference.
Customer: replied 6 years ago.
what if there is no equity in the would the debt be split if she gets the house
Expert:  Lucy, Esq. replied 6 years ago.
If she's going to take keep the house, usually she would take over the debt, because she's the one who gets the benefit from it.
Customer: replied 6 years ago.
that is what I figured. Is there any way to make sure that is what happens, or is that always the rule?
Expert:  Lucy, Esq. replied 6 years ago.
That's the usual rule. There are always exceptions. The best way to guarantee that outcome is to see if your wife will sign something agreeing to it - the courts will almost always enforce an agreement that the parties reach on their own. But, if she won't, you would simply point out to the judge that she's the one who will be getting all the equity, and all of the benefit from the increase in value to the house, so she should also get the accompanying debt.
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