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I have a question about property retention after divorce.

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I have a question about property retention after divorce. Looking for someone with expertise in divorce and/or real estate law
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8/15/2017
legalgems
legalgems, Arbitrator
Category: Real Estate Law
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What state is this in regards ***** *****?

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Customer reply replied 10 months ago
Okay, thanks. Here's the deal: My wife purchased a condo in January, before we were married. She paid the entire down payment, and has been covering the mortgage so far, though I have contributed about $20k toward renovations. She recently applied for refinancing, and she asked me to sign an interspousal transfer deed. In the event of divorce, would that mean that I have no claim whatsoever on the condo? (It is hers, but I plan to be contributing to a significant part of the mortgage)

What state is this regarding?

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What state is this regarding?

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Customer reply replied 10 months ago
California
Customer reply replied 10 months ago
The doc says "No Consideration-Gift-Relinquishment of all community interest of a non-title spouse"
Customer reply replied 10 months ago
relatedly, what would happen if I don't sign it? Does that mean that it is automatically community property?

Thank you - just a few moments please; the site appears to be freezing which is why my last post posted twice.

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Yes, an interspousal grant deed is similar to a quit claim deed, where the person signing it is giving all of their interest in the property to the named person (the other spouse).

It is legally binding and is recorded in the property recorder's office.

It is a waiver of any and all interest in the property.

In CA, property purchased prior to marriage is separate property UNLESS the community makes contributions to that property (ie mortgage payments). In such cases, the community acquires an interest regardless of title unless that interest is waived. And an interspousal transfer deed is generally interpreted as a waiver.

A person can't be forced to sign it unless there is a court order to that effect; if there is a court order and the person still refuses to sign, the court can authorize the court clerk to sign and that has the same legal effect.

When there is premarital property and community property contributions will be made, the parties will often consider a post nuptial agreement to help determine ownership interests.

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Customer reply replied 10 months ago
Okay, thanks. So, to be clear--if I sign this, and then I make mortgage payment contributions, and contribute to maintenance and upgrades, I still wouldn't be entitled to any interest?In your opinion, would I be wise to put off signing this until we have a postnup in place and made a plan?

It is possible that the judge will determine the community property payments created a community property interest; but typically a interspousal deed is seen as a voluntary relinquishment of any rights, so that any payments may be considered a gift, or in lieu of rent.

So yes, a prenup is ideal in situations where parties come in with assets that will not retain a clear separate property status -since the deed clouds the issue and would require litigation to get a judge's ruling (and since each judge can apply the facts as they see fit that allows each judge to come up with different results) it would be less expensive in the long run to have an agreement in place versus litigation (also it will allow the parties to make financial decisions based on that agreement versus being blindsided down the road). Also for home ownership, normally only mortgage reduction is credited (not insurance, taxes, etc) so that can be specified/spelled out in a post nup.

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Customer reply replied 10 months ago
One last question. Do you know if it's possible to create an agreement that says that I'm not on the deed (for the purposes of the refi), but that I maintain some interest in the property? Like, that I'm not waiving my interest? Or would the deed trump any agreement?
No, so long as the agreement is worded correctly it can have the desired effect. Snice an interspousal transfer deed is often done at the lender's request, if that is cited in the agreement it will give context to the situation. The court will enforce the agreement unless it is against public policy, and that issue would not be.
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legalgems, Arbitrator
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