When people marry a little later in life, they have had some time to get assets in their own before they tie the knot. Most states recognize the idea of separate property — if you possessed it before you married, it is yours, and you also do not need to share it again in case of divorce. However, the issue isn’t always that clear cut, especially in community property states such as California. Who possessed your house as of the date of your marriage may not solely determine what happens to the house if you’re divorce.

Community Property Law

Under community property law, that which you earn as you’re married and whatever you purchase with that cash is marital property. It’s subject to a equal 50/50 division in a divorce, so if you and your spouse purchased your house together during your marriage, you would each be entitled to half of its equity. If your spouse owned the home prior to your marriage, it is her separate property and you would not be qualified for any of the equity. But this depends on her having taken measures to ensure that the asset has not been tainted by marital funds.

Commingling and Transmutation

The line between separate property and community property can blur if the owner uses marital cash to keep up a premarital asset. For instance, if your spouse purchased your home before your wedding, and when there is a mortgage against it that she paid from her income during your marriage, she’s commingled the asset. Everything she earned once you married is half yours, so some of your cash has contributed to the house. The property would just remain her separate asset if she always paid the mortgage and also financed all maintenance and repairs with cash she set apart prior to your union. If she changed the deed to the house into joint names once you married, she transmuted the asset — she gifted it to you during your union. But California does not recognize transmutation of significant assets unless a written statement accompanies the trade, confirming that she changed the deed for the express purpose of allowing you a share.

Establishing the Community Contribution

Even when your wife commingled her separate asset, it is unlikely a court would believe its entire value to be community property. But she’d need to be able to identify just how much marital cash went into the house. For instance, if she purchased the house for $350,000 with a $70,000 down payment and also built $10,000 in equity before your union, and when marital funds were used to construct $120,000 in equity during your union, the community property portion of the home is approximately 60 percent of their equity: $120,000 of $200,000. Under community property law, your entitlement could be 30 percent of the home’s equity — half of the community property part.

Exchange of Assets

The court likely wo not force your wife to sell her house to give you 30 percent of their equity. She can compensate you for your share by relinquishing other resources of equal worth, or she is able to refinance the house for more than the existing mortgage and make a cash payment to you. Ownership of the asset could normally stay hers; the house would not be moved to you.

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