What Happens If One Party Wants to Keep the Family Residence?

What Happens If One Party Wants to Keep the Family Residence?

Separation and divorce present numerous challenges to both parties. One of the most complex and emotional issues is dividing property. When both spouses have an attachment to the family home, this debate can become heated and fractional. What if one party wants to keep the family residence after a divorce? Or what if both parties wish to keep it and live in it?

California Family Law Specialist Judy L. Burger is well-experienced in Property Division matters relating to divorce. She can work with various specialists to determine the best course of action and your legal rights. Her team can also represent you in property division hearings and other divorce proceedings in the Family Courts when a family residence is in question.

California Property Division Law

California law follows the doctrine of community property in that any debts or assets owned by a married couple are jointly owned (community property). Therefore, each spouse has an equal interest. In a divorce, community property should then be divided 50/50 between the spouses. However, the family home may or may not be considered community property under state law.

The home may be considered community property if:

  • The home was purchased with earnings from both spouses.
  • Both spouses obtained a mortgage for the home while married.
  • Both spouses contributed earnings to pay the mortgage and/or upkeep of the home.

The family residence may be considered separate property if:

  • One spouse already owned the home before marriage.
  • The home was gifted to one spouse before or during the marriage.
  • Only one spouse provided for the mortgage or upkeep of the home.

However, separate and community property can easily become commingled in a marriage. Over time, a married couple can acquire a community interest in the home through numerous actions and investments.

Conversely, other parties can acquire an interest in the home as well. Any mortgage lender you owe will hold an interest. If you jointly own the home with a third party, such as a family home passed down to one spouse but in another person’s name, this person has an interest and legal rights. You may have also used your home as collateral for a business loan. If so, the business in question may have an interest and rights as well.

So, Who Gets the House?

The question of who gets the family residence in a divorce is never simple. As you see above, numerous factors and scenarios can come into play. Separated or divorcing spouses have some options for settling the question:

  • Agreeing on Separate Property: The couple agrees that the home is the separate property of one spouse. This must be verified by a court order to become official.
  • Negotiating a Living Agreement: The couple can agree on who maintains ownership and lives in the house. However, any joint agreement you reach must be ordered by the court to make it official.
  • Spousal Buyout: One spouse agrees to buy out the community property interest of the other spouse. An independent appraisal is necessary and the court must agree to this arrangement.

If the couple cannot agree, the Family Court will turn to California’s property division laws to make orders. In the case of separate property, the home belongs to the spouse who owns it. When the home is declared community property, the court may order the following solutions:

  • Sell the Home: The family home is sold and the proceeds are divided equally among the parties holding an interest or according to the courts division (if any separate property interest is determined).
  • Buyout: One spouse is allowed to purchase the other’s community property interest and becomes the sole owner of the home.
  • Deferred Sale: If a couple has minor children at home, the couple may remain joint owners but allow the custodial parent to live in the home with the children. This can often make a divorce easier on younger children. After a specified time, the home is sold and the proceeds are divided.

Get Seasoned Representation for CA Property Division

Numerous factors can arise in any property division during a divorce, so you need seasoned legal representation and counsel to protect your interests. Family Law Attorney Judy L. Burger is a skilled negotiator and vigorous defender of your rights. She has the knowledge and experience in family law to handle difficult or complex property settlements on your behalf.

Contact one of our offices throughout California today to get help with difficult property division questions in a divorce.

5 Ways You Can Help Your Kids During Divorce

5 Ways You Can Help Your Kids During Divorce

Divorce can be a stressful and painful experience for everyone involved, but it can be especially hard on children. As a parent, you will want to do everything you can to protect your kids during this difficult time. While you probably won’t be able to completely insulate your children from your divorce, there are measures you can take to support them during the process. Here are 5 ways you can help your kids during divorce: Continue reading

What is a "Private Judge," and Should I Use One During my California Divorce?

What is a “Private Judge,” and Should I Use One During my California Divorce?

In a traditional California divorce, one or both parties can file for divorce, and a county court judge will be assigned to oversee the matter. However, Californians also have another option—hiring a private judge to hear their case. If you are considering or are in the process of divorce, you may be asking: What is a private judge, and should I use one during my California divorce? Continue reading

Do I Need the "Right of First Refusal" in My Custody Order?

Do I Need the “Right of First Refusal” in My Custody Order?

During divorce, parents often establish a schedule that sets out how they will spend time with their kids. Generally, the expectation is that custodial parents will be with their children during their designated care periods. However, there can be situations when a parent may need to leave their children with someone else. Depending on the circumstances, you may or may not be comfortable with a third party watching your kids when your ex is away. If that is the case, you may want to consider adding the “Right of First Refusal” to your California parenting agreement. If you have not heard of this term, you may be wondering: Do I need the “right of first refusal” in my custody order? Continue reading

5 Signs You May be Ready for a Divorce

5 Signs You May be Ready for a Divorce

When you are unhappy in your marriage, figuring out if it’s time to move on can be difficult. On some level, you may already know that the relationship is not working. However, you want to be sure you are ready to divorce before initiating a case. You are the only person who will know for sure whether it’s time to leave your relationship. However, there can be indications that you are prepared to move forward. Here are 5 signs you may be ready for divorce: Continue reading

My Ex Has an Attorney. Do I Need One for My California Divorce

My Ex Has a Divorce Attorney. Do I Need One for My California Divorce?

During divorce, everything you thought you knew about your relationship with your ex will change. Before, you were a couple planning for a future together. Now, you are legal adversaries preparing to live separate lives. It may be that you both started out agreeing to settle your case amicably. However, if your ex hires a divorce lawyer and you don’t have one, the process can suddenly seem less cooperative. In this situation, you may think: My ex has a divorce attorney. Do I need one for my California divorce? Continue reading

What Happens During a California Divorce Mediation

What Happens During a California Divorce Mediation?

When you think of divorce, you may imagine having to endure a dramatic trial. However, the majority of California divorce cases settle outside of court. One way of reaching a settlement is through divorce mediation. For many, mediation can be an effective way to resolve disputed divorce issues. If you have a California divorce, you may use mediation during your case. Therefore, you will want to know: What happens during a California divorce mediation? Continue reading

What is Community Property?

What is Community Property?


When a couple goes through a divorce, one of the main issues they will face is how to divide their shared property and funds. During this process, you may hear that your marital assets are considered “community property.” Those unfamiliar with this term may be wondering, what is community property? Here is what you need to know about California divorce and community property: Continue reading

What Certified Family Law Specialist Means for You

What Certified Family Law Specialist Means for You

You’ve decided to file for divorce. Your next step? Hiring an attorney. As you look online or through attorney directories, you notice that some attorneys are “specialists” in areas of law like taxation, criminal law, and family law. It’s only natural to wonder what a certified family law specialist can do for you.

All attorneys practicing law in California are licensed and regulated by the State Bar of California. The Bar also encourages continued training for lawyers and provides a way for some lawyers to become certified in their area of practice. Attorneys may become certified specialists in several fields, including family law.

 That all sounds great for attorneys, but what does it mean for you?

Training

A certified family law specialist completes training in excess of what is expected of other attorneys. In addition, an attorney specialist has to pass a written test in their legal specialty.

When you hire a specialist, you hire someone who has the broad knowledge of law and the specific knowledge needed for your family law matter.

Experience

A certified family law specialist must practice law in their specialty for at least five years. During that time, at least 25 percent of their time must involve their field of specialty.

This means that the attorney you hire has more experience in family law than an attorney with a general practice. An attorney who specializes in family law understands California divorce laws and how they relate to your individual case.

Continuing Education

All attorneys must go through a certain amount of training every year. A certified family law specialist is held to higher standards when it comes to continued training.

This means the specialist you hire is more likely to have a deep understanding of recent changes to California divorce law.

Respected by Peers and Judges

To become a certified family law specialist, an attorney must be viewed favorably by their peers and by judges with whom they have worked.

The specialist you hire has demonstrated a dedication to family law to people who know the law. What better recommendation can there be?

Cares About Family Law

The rigorous application process required by the State Bar is rigorous. A certified family law specialist who goes through that process has demonstrated great interest and concern in family law matters.

Ms. Burger is a California Certified Family Law Specialist and founder of the Law Offices of Judy L. Burger. We assist clients in California’s Northern to Central Coast, including San Francisco, Gold River, Santa Barbara, Ventura/Oxnard, Beverly Hills, and surrounding communities.