Is My Spouse Entitled to Half My House If It's In My Name in California?
California Divorce, Debt, Property Division

Is My Spouse Entitled to Half My House in a Property Division If It’s In My Name in California?

One common concern when navigating the complexities of divorce in California is property division, particularly regarding the family home. Many individuals wonder: If the house is solely in my name, does my spouse still have a claim to half of it? CA Property Division Attorney Judy L. Burger offers a deeper understanding of California’s community property laws to help clarify this question.

Understanding Community Property in California

California is a community property state, which means that most assets acquired during the marriage are considered community property and are subject to equal division upon divorce. This includes income, real estate, and other assets acquired while married, regardless of whose name is on the title.

If the house was purchased during the marriage, it is generally presumed to be community property, even if only one spouse’s name is on the title. This means that both spouses typically have a claim to the house, and it could potentially be divided equally during the divorce proceedings. However, there are exceptions to the community property presumption.

Exceptions: Separate Property

Not all property is community property. Any assets owned by either spouse before marriage or acquired by gift or inheritance are considered separate property and are not subject to division. If you owned the house before marriage and it remained in your name, it may be classified as separate property. However, if you made mortgage payments or significant improvements to the house during the marriage using community funds, your spouse might argue they have a claim to the increased value of the property.

It’s important to consider contributions made by your spouse. If your spouse contributed financially to the house, even if it’s solely in your name, they might have a valid claim. For instance, if they helped with mortgage payments, upkeep, or renovations, these contributions could afford them rights to the property or increase their share during division.

Protecting Your Family Home

If you suspect a divorce is in your future, you can take steps to ensure that your home remains distinct from marital assets to safeguard it from being considered communal property. When possible, refrain from using communal assets to upgrade the home or make mortgage payments. Be sure to maintain thorough records if you inherited the home.

Individuals can also consider signing a prenuptial or postnuptial agreement to safeguard a family home from property division during a divorce. These legal agreements provide clear guidelines for property division and outline how homes, real estate, and other properties will be handled in the event of a divorce. By defining the property statuses and the rights and responsibilities of each spouse, these agreements can protect a family home.

Seek Legal Guidance from an Experienced CA Property Division Attorney

Given the intricacies of property division laws in California, it’s wise to consult a seasoned property division attorney like Judy Burger. She can provide personalized advice based on your specific situation, ensuring your rights are protected. Judy Burger can also help evaluate whether your house is community or separate property and guide you through the divorce process.

In California, whether your spouse is entitled to half or another portion of your house largely depends on factors like the property’s title, when it was acquired, and any contributions made during the marriage. If you’re facing divorce and have questions about your home and property rights, reach out to CA Certified Family Law Specialist Judy L. Burger today.

 

Top Tips for the Smoothest Property Division
California Divorce, Property Division

Top Tips for the Smoothest Property Division

Dividing property during a divorce can be one of the most challenging and potentially problematic aspects of the process. Disagreements and misunderstandings can lead to serious mistakes and costly court battles. However, with careful planning and guidance, you can achieve a fair and equitable property division.

California Certified Family Law Specialist Judy L. Burger offers ten essential tips to help you navigate property division smoothly.

Property Division Top 10 Tips

Property division is typically the most problematic aspect of any divorce, but it doesn’t have to be like that; get informed and equipped for negotiations with these simple tips.

1. Know What Property is Marital vs. Separate

Because California is a community property state, separate and marital property is handled differently during a divorce:

  • Marital Property: Generally includes assets and debts acquired during the marriage. Familiarize yourself with your state’s laws regarding marital property to understand what will be subject to division.
  • Separate Property: Typically includes assets owned before the marriage or received as gifts or inheritances during the marriage. Clearly identify what qualifies as separate property.

2. Create a Comprehensive Inventory

List all assets and liabilities, including real estate, bank accounts, investments, retirement accounts, vehicles, inheritances, and personal property. This inventory will serve as the foundation for discussions and negotiations. Be honest and thorough to avoid complications later.

3. Assess the Value of Your Property

Get accurate valuations for significant assets. Consider hiring professionals, such as appraisers or financial experts, to provide credible assessments of property values. Knowing exactly what your assets are worth will aid in fair negotiations.

4. Understand the Impact of Debts

Property division is not solely about assets; consider debts too. Outstanding mortgages, credit card balances, and loans must also be addressed. Decide how to equitably divide the debts alongside the assets to avoid future financial burdens.

5. Prioritize Open Communication

Honest and respectful dialogue with your ex can lead to smoother negotiations. Discuss your priorities and concerns regarding property division directly. Aim for a collaborative approach rather than an adversarial one to create a more amicable environment.

6. Consider Mediation or Collaborative Law

If negotiations are challenging, consider using mediation or collaborative law services. These alternatives to traditional litigation can help both parties reach a mutually acceptable agreement with the support of professionals. Mediation can often lead to quicker resolutions and reduced stress.

7. Be Realistic with Your Expectations

Understand that compromise is often necessary in property division. Be willing to negotiate and prioritize what is most important to you, which can facilitate smoother discussions. Focus on equitable, not necessarily equal, division based on your specific circumstances.

8. Keep Emotion in Check

Property division can bring up strong emotions tied to relationships and memories. Strive to keep emotions separated from negotiations to make rational decisions. Take breaks if necessary and seek support from friends, family, or professionals to help manage stress.

9. Document Everything

Keep a record of all communications, agreements, and transactions regarding property division. This documentation can be invaluable if disputes arise later. Ensure that any agreements are formalized in writing and filed with the court if applicable.

10. Consult a CA Certified Family Law Specialist

Engage with CA Certified Family Law Specialist Judy Burger. She can provide valuable advice specific to your situation and ensure your rights are protected during the process. She can also help you understand state laws and guide you through negotiations and court proceedings if necessary.

Navigating the complexities of property division during a divorce doesn’t have to be overwhelming. By following these tips and seeking professional guidance throughout, you can work towards a fair resolution that sets the stage for your new beginning. Remember that clear communication and a focus on mutual interests can lead to a smoother process overall.

Contact The Law Offices of Judy L. Burger today to get seasoned guidance with your California divorce property division.

 

Default Divorce and Property Division
California Divorce, Debt, Property Division

Default Divorce and Property Division

In California, a default divorce occurs when one spouse files for divorce and the other fails to respond or participate in the proceedings. This situation can arise for various reasons, including lack of communication, avoidance of the divorce process, or even ignorance of the filings.

Certified California Family Law Specialist Judy L. Burger believes both parties should understand the implications of a default divorce, as it can significantly affect property division and other legal matters.

Reviewing the Default Divorce Process

When one spouse initiates the divorce process by filing a petition with the court, they must serve the other spouse with divorce papers. Once served in California, the recipient has 30 days to respond. If the non-filing spouse does not respond within this period, the court can proceed with the divorce and may grant a default judgment. This means the filing spouse can request the court to rule in their favor without input from the non-responsive spouse.

Property Division in Default Divorce

California is a community property state, meaning that nearly all property acquired during the marriage is considered joint property and is subject to equal division upon divorce. In cases of a default divorce, the court may divide property based on the information provided by the filing spouse.

This includes a Request to Enter Default (form FL-165) formally asking the court for a default divorce because your spouse didn’t respond.

You may also need to submit a Property Declaration (form FL-160) that informs the court about the community property you share with your spouse and how you want it divided.

  • Community Property: This includes all assets and debts acquired during the marriage, such as income, homes, and joint bank accounts. Community property is typically divided equally between both spouses.
  • Separate Property: This includes assets one spouse owned before the marriage, gifts or inheritances received during the marriage, and anything specifically designated as separate property in a prenuptial agreement. Separate property is not subject to division in a divorce.

In a default divorce scenario, the court relies heavily on the accuracy and completeness of the information provided by the responding spouse. If the filing spouse fails to disclose certain assets or debts, the court may unknowingly grant a division that does not reflect an equitable outcome. This emphasizes the importance of thorough documentation and honesty during the divorce process.

A default judgment can result in unintended outcomes. For instance, the non-responding spouse may ultimately lose rights to certain community assets or may not receive fair consideration of their financial contributions to the marriage.

NOTE: A default divorce does not automatically forfeit rights; the non-responding spouse still has legal options, such as filing a motion to set aside the default judgment within a certain period.

Protect Your Rights

If you find yourself in a situation involving a default divorce, it’s vital to seek legal advice as soon as possible. Judy Burger is an experienced family law attorney who can provide insights into your rights and options. She can help you understand your legal standing and whether it is beneficial to contest the default judgment.

  • Document Assets and Liabilities: If you believe you are at risk of a default judgment, gathering an accurate account of all community and separate property will be invaluable in negotiations and court proceedings.
  • Respond to Divorce Papers: If you have been served with divorce papers, it’s critical to respond promptly within the timeframe provided. If you have concerns about the divorce or property division, discuss your options with attorney Judy Burger; she can help you negotiate a fair outcome.

Get Help with a Default Divorce and Property Division

Default divorce can present significant challenges for both parties, particularly regarding property division. Property Division Attorney Judy L. Burger can help you understand California’s community property laws and the implications of a default judgment so you can protect your rights in the divorce process.

If you are facing a divorce, whether you are the filing party or the one served, contact The Law Offices of Judy L. Burger. We have eight locations throughout California, and we can guide you through the complexities of divorce to ensure a fair resolution.

 

How Are Trusts Handled in a Divorce Property Division?
Property Division, California Divorce, Mediation, Property Division

How Are Trusts Handled in a Divorce Property Division?

Divorces routinely involve property division questions. Some may be simple and straightforward, but determining marital and separate assets is often complicated. One common question is how trusts are handled in a divorce property division. Certified Family Law Specialist Judy L. Burger explains more about trusts and property divisions in California.

What Is a Trust?

“A trust is a legal entity with separate and distinct rights, similar to a person or corporation. In a trust, a party known as a trustor gives another party, the trustee, the right to hold title to and manage property or assets for the benefit of a third party, the beneficiary.”

A trust is a useful tool for managing and distributing a person’s finances both while they are alive and after their passing. It can help an estate avoid taxes and the probate process, protect assets from creditors and specify how inheritance should be handled for beneficiaries.

Married couples may establish one or more trusts for various reasons:

  • Tax planning
  • Medicaid planning
  • Retirement or inheritance planning
  • Providing for a special needs child or family member
  • Charitable giving
  • Securing business assets

Different types of trust have varying rules that govern how they are used, protected, and divided in a divorce property division.

Trusts and Property Division

Under California law, trusts are separate property of the named beneficiary spouse. Trust assets are then not considered “community property” and, therefore, are not subject to equitable distribution. Moreover, any income and principal paid from a separate property trust to a beneficiary spouse remains their separate property as long as it is not comingled with marital funds.

For example, a trust that is funded by a third party or source (not the beneficiary) through a gift or bequest and is governed by a separate trustee is the sole property of the beneficiary and not considered community property.

  • A trust created with assets before the marriage
  • A trust given to one spouse by a gift or inheritance

Irrevocable trusts are also better protected during a divorce property division. The beneficiary spouse is not in control of the assets, and they are not considered community property.

Depending on the type of trust, other special circumstances may apply. It is best to discuss your situation with a seasoned California Property Division Attorney like Judy Burger to ensure you fully understand your rights and options.

When Is a Trust Considered Community Property?

When trust funds are placed into a joint account, used to purchase a marital asset, or used for regular marital expenses, these funds are no longer considered separate property and become community property.

An exception exists if separate property contributions are used for a down payment on or for improvements to an asset; they will retain their separate property status as long as documents trace that contribution. Any funds remaining in the trust or a separate account will continue to be considered the separate property of the beneficiary spouse.

California Property Division Attorney

The rules governing California property divisions and trusts are complex, so you need an experienced CA Property Division Attorney to help you understand them and how they apply to you. Certified CA Family Law Specialist Judy Burger can examine the assets in trusts and determine how they fit into a divorce property division. Her role is critical to ensure an equitable legal division and protect your assets and rights.

If you are considering a divorce in California and have assets in a trust, contact The Law Office of Judy L. Burger as soon as possible. We have eight convenient offices throughout the Golden State to give you the personal attention you deserve. 

What Happens If One Party Wants to Keep the Family Residence?
Property Division, California Divorce, Mediation, Property Division

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.

What is Community Property?
Uncategorized, California Divorce

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 →

Community Property or Separate Property How Can I Tell the Difference
California Divorce

Community Property or Separate Property: How Can I Tell the Difference?

For some couples, property division is one of – if not the – most important issue to iron out in their divorce settlement. However, when assessing your assets to see who gets what, will you be able to tell whether something is community property or separate property?

Was the property acquired during the marriage?

Most assets acquired by a married couple are considered to be community property. This includes real estate, personal property, and income “wherever situated.” For example, if a married couple living in California buys a vacation home in Hawaii, the home probably will be part of the community property estate if the couple divorce. Separate property is any asset the party acquired: before the marriage, during the marriage, if a gift or inheritance; and after the parties legally separate. Sometimes an asset brought into the marriage may become community property, depending on how the asset is treated during the marriage.

Was the property inherited?

An inheritance received by one spouse is that spouse’s separate property. However, separate property may become community property if the inheritance is commingled with community property or transmuted by the spouse who received the inheritance. For example, Claudia G. inherits $50,000 from her grandmother. The $50,000 should be Claudia’s separate property. However, she deposits the money in a joint bank account and clearly intends that her husband use it. The inheritance might be considered community property.

Did the property increase in value during the marriage?

Sometimes separate property brought into the marriage by one spouse increases in value. If the other spouse helped with the increase, a portion of the property might be considered community property.

Will the asset potentially have future earnings?

Some property may earn royalties or other payments during the marriage. Determining the current value of the asset may be hard enough. Predicting how much income the property may generate in the future is even more difficult. The way the earnings are split may depend, in part, on whether the asset is community property or separate property. If separate property, the next question may be whether the non-owning spouse contributed to the property’s success. For example, an author starts drafting a book while single. The book is published after the author gets married. The author’s spouse assisted with research, editing, and marketing the book. If the couple divorce later, is the book community property or separate property? The author brought at least the first draft into the marriage, but the new spouse contributed to the book’s success.  As with all divorce issues, however, the court will decide how to treat the property if the couple cannot reach an agreement.

Assets and Debts May Be Community Property or Separate Property

Disagreements about property division can complicate your divorce and hold up your final divorce settlement. Talk to an experienced California divorce attorney today. Please call us at (415) 293-8314 to schedule a confidential appointment with one of our attorneys. 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, Beverly Hills, Gold River, Santa Barbara, Ventura/Oxnard, and surrounding communities.
Separate Property: How to Handle Increases in Value During Marriage
California Divorce

Separate Property: How to Handle Increases in Value During Marriage

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Separate property is property that the law recognizes as owned by only one spouse in a marriage. Community property is presumed property obtained during marriage. Those short definitions make property issues sound simple, but they often are not. If you and your spouse were married for any length of time, there’s a good possibility any separate property brought into the marriage may have increased in value.

So, how does such an increase in value affect a divorce settlement?

That depends on the asset and how the asset appreciated in value.

Business Assets

Sometimes one spouse starts a business before marrying. The business is that spouse’s separate property. If the marriage ends, isn’t the business still considered separate property? Not always.

For example, Jay owned a business prior to marrying Jill. He brought the business into the marriage as separate property. However, Jill spent many hours helping him build his mom-and-pop store into a much larger retail operation. When they decide to divorce after 12 years of marriage, what right does Jill have to Jay’s business assets?

Community labor is worth something. Both Jay and Jill’s efforts, during marriage, played a big part in the store’s success. Jill probably is not entitled to own part of the business. However, she is entitled to an interest in the business because the separate property increased in value due to Jay and Jill’s efforts during marriage.

Acquired Assets

Property purchased during a marriage is generally considered to be community property. However, gifts and inheritances that one spouse receives are the separate property of that spouse. It’s possible, though that a spouse could receive an inheritance that increases in value. The increase may become community property.

Gloria owned a house prior to marriage. Three years after marriage to Bob, Gloria put Bob on the deed. When Gloria and Bob divorce, Bob wants half the equity in the house. Bob may have a community interest in the home.

Calculating the Community Increase

Once it’s determined that the increased value of separate property is community property, how is the increase calculated?

Divorce courts and attorneys may use formulas based on prior divorce cases to figure out property division.

  • Moore/Marsden calculations are sometimes used to calculate how much of a home’s value became community property during a marriage. This formula uses separate property appreciation amounts, total principal reduction, and comparisons between purchase price and current value.
  • Pereira accounting may be used to figure out how community funds and community labor enhanced the value of separate property. It’s typically used when the business appreciates due to the efforts of the spouse who doesn’t own the business.
  • Van Camp accounting typically is used when a business value increases due to the business or to economic factors.

Pereira and Van Camp are two family law cases in which the courts had to decide division of property that increased in value.

Learn More About Separate and Community Property

The attorneys at the Law Offices of Judy L. Burger are experienced at all phases of divorce proceedings. Call us at 415-293-8314 to schedule a private appointment or visit our website. We maintain offices in Marin County, San Francisco, Santa Barbara, Ventura/Oxnard, San Jose, Gold River (Sacramento), and surrounding communities. Our Beverly Hills office will be opening soon.

Insurance Settlement and Your Divorce
California Divorce

Insurance Settlements and Your Divorce

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Divorce can be complex. Untangling finances, figuring out what to do for the children, and determining what’s community property can take time. Adding the complication of an insurance settlement to a divorce certainly doesn’t help.

The Law on Personal Injury Settlements

California law addresses insurance settlements in California Family Code 780 and 2603. While some of the language is vague, the law does address whether settlements are separate or community property.

Injuries During Marriage.

When a personal injury cause of action – the event that led to the injury – occurs during a marriage, then the insurance settlement for those injuries is considered community property. As such, the settlement is split 50-50 between the parties, even if only one party was injured.

Sometimes parties divorce after the accident, but before the insurance settlement is received. The community property/separate property determination is made based on when the injury occurred, not when the settlement is received.

Injuries Incurred Outside the Marriage.

If an injury occurred before parties were married, or after they start living separately, then the insurance settlement belongs only to the injured party. The term “living separately” does not necessarily mean “date of separation.”

For example, an unmarried person is seriously injured in a car accident, then later marries. The cause of action for the personal injury occurred before the marriage. Any insurance settlement is the property of the injured party only.

Reimbursement for Expenses

One exception to the separate property case noted above involves reimbursement for expenses paid by the non-injured spouse. Family Code 781(b) states that expenses paid by the non-injured person from separate property or community property may be reimbursed.

For example, if one spouse may be injured in an accident before the marriage. After the marriage takes place, the uninjured spouse pays expenses that relate to the injuries suffered in the accident. The uninjured spouse may be able to recover at least part of their expenses from the insurance settlement received by the injured spouse.

Learn More About Insurance Settlements and Your Divorce.

Judy Burger is a California Certified Family Law Specialist, and founder of the Law Offices of Judy L. Burger. Please call our offices at 415-293-8314 to set up an appointment with one of our attorneys. We assist clients along the Northern to Central California Coast.
Keeping Property Separate During a Marriage
California Divorce

Keeping Property Separate During a Marriage

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Marriage is the ultimate partnership. But it’s more than just two people in love forming a union of two souls. Each person usually brings along property, money, and personal possessions. At least some of that property is considered ‘separate property.’ As a marriage progresses, couples also acquire property, some of which might be intended to be the property of only one member of the couple. It’s important to understand about keeping property separate during a marriage.

Community Property.

California is a community property state, meaning that property acquired by a couple is considered the property of both partners. The same principle applies to debt, with each partner usually being held accountable for debt owed by either partner.

Separate Property?

Sometimes parties will bring separate property into a marriage or domestic partnership. During the marriage, gifts or inheritance to one partner are also considered separate property, meaning it’s the property of the person who received the gift or inheritance.

Property and debts acquired after the date you and your partner enter into a separation is also considered separate property.

Commingling of Property

As you might imagine, determining whether something is separate property or community property can be difficult. For example, perhaps one spouse uses their own money to buy a house before marrying. However, during the marriage, mortgage payments were made using money earned by both spouses. Equity built up during the marriage is community property, but the down payment on the house is still separate property.

Keeping it Separate.

Fortunately, there are ways to maintain separate property during a marriage:

  • Be careful titling financial accounts and real property. For example, don’t automatically add your new spouse’s name to property you obtained before your marriage.
  • Income and dividends from separate property should be kept separate.
  • Use separate income to maintain separate property.
  • Don’t commingle inherited property and gifts.
  • Maintain accurate records of what property was acquired before and during the marriage.

Final Thoughts.

When spouses own property in more than one state, or have lived and worked in a state other than California during their marriage, the separate property/ community property debate becomes more complex.

To discuss how to handle separate and community property issues, please call us at 415-293-8314. The attorneys at the Law Offices of Judy L. Burger assist clients in San Francisco, Marin County, Santa Barbara, Ventura/Oxnard, San Jose, Gold River (Sacramento), Roseville, and surrounding communities.