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LegalGems, Lawyer
Category: Family Law
Satisfied Customers: 9903
Experience:  Experienced Family Law Attorney
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I live in Calif and have been married years and am now

Customer Question

I live in Calif and have been married for 20 years and am now pursuing a divorce.. About 8 years ago I inherited a family trust that is my own separate property. I used some $$ from the trust to put a 20%downpayment on a property that I was going to flip, but it was in the financial/mortgage meltdown.. I paid $550,000.00 and put $120,000.00 down.. in 2007..The value of the property at one time was as low as $420,000.00, but Today the house has regained it's value and a bit more.. Today it could be worth $600,000.00 with a mortgage of $400,000.00.. The house was bought with $$ from my separate property inherited in a family trust, and is easily traceable.. The house was even purchased in my name only and my name is ***** ***** name on the deed, but is not specifically named in the trust.. Worst case scenario would be that the court determines the house to be community property.. My question is this.. Would the entire downpayment of $120,000.00 be my sole money, or would community property laws entitle her to 1/2 the downpayment of $120,000.00 put down by the trust?? And then as a community property item i would then split the profit est at $200.000.00 with her equally ?? I may also show that all mort payments were made thru a separate bank acc set up in the trusts name, which revenue from all inherited items producing income passed thru such as as IRA's and Annuities that were made out in the name of the trust with my name on the checks also as designated exector??
Submitted: 2 years ago.
Category: Family Law
Expert:  LegalGems replied 2 years ago.
Good Day! I'll do my best to assist you. Please remember: I only provide general information and a local attorney should always be consulted.
A few more minutes please as I look into this.
Expert:  LegalGems replied 2 years ago.
If property is acquired solely by separate property (inheritance), including down payment and mortgage payments, and the property is held in the acquiring party's sole name, it remains separate property.
All references are to the family code:
760. Except as otherwise provided by statute, all property, real or
personal, wherever situated, acquired by a married person during the
marriage while domiciled in this state is community property.
770. (a) Separate property of a married person includes all of the
(1) All property owned by the person before marriage.
(2) All property acquired by the person after marriage by gift,
bequest, devise, or descent.
(3) The rents, issues, and profits of the property described in
this section.
(b) A married person may, without the consent of the person's
spouse, convey the person's separate property.
The separate property characteristic even applies generally to creditors:
913. (a) The separate property of a married person is liable for a
debt incurred by the person before or during marriage.
(b) Except as otherwise provided by statute:
(1) The separate property of a married person is not liable for a
debt incurred by the person's spouse before or during marriage.
(2) The joinder or consent of a married person to an encumbrance
of community estate property to secure payment of a debt incurred by
the person's spouse does not subject the person's separate property
to liability for the debt unless the person also incurred the debt.
The separate property remains separate property unless title names both spouses (as the spouse would argue there was a gift), or if the principal was paid down with community funds, thereby creating a community interest.
There is no need for the property to be titled in the trust's name; retaining ownership in the acquiring spouse's name alone suffices to retain the separate property interest.
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Expert:  LegalGems replied 2 years ago.
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