The answer depends on many factors. For this example, we will assume that the home was purchased during the marriage of the parties and prior to separation. Here the answer is generally, YES. Each party is entitled to half of the value in the home. If the home has a negative value, theoretically, you each own half the debt! Again, there are exceptions to this general rule, so I urge you to call us for a consultation.
However, if the home was purchased prior to marriage by one or the other, then the answer is generally, No. However, this does not mean that the person that did not initially purchase the home is not entitled to any value in the home. Quite the contrary, in most instances, the non-purchaser will be entitled to certain contributions made towards or into the home such as payments, taxes and other items. Careful, you do not get “dollar-for-dollar reimbursement. In fact, the amount of money you both share in a separate property home is quite complex, and we use a computer program to determine those numbers.
Additionally, even if the home is “community property”, but one or the other party made contributions from their “separate property” towards the acquisition of the home, monthly payments, or payments for taxes or Insurance for the home, then that person may be entitled to a reimbursed for some or all of their separate property contributions. This is a technical area of the law. To determine if any contributions you have made towards the family home are considered separate property, so as to entitle you to be reimbursement, give us a call today.
There are many other scenarios. The above scenarios are only some of the most common scenarios people face each and every day in a divorce case.
The value of the home can be determined by one of various methods. First the parties must determine what the fair market value of the home is. In other words, the amount for which the home would sell if you decided to sell the house. To determine this amount, the parties can agree and stipulate to a value of the home. The parties can also agree to have the home appraised and can stipulate (agree) that the fair market value of the home will be the amount determined in the appraisal. Finally, the parties can agree from the outset to sell the home and agree to accept an offer, which automatically sets the fair market value of the home. Lastly, if the parties are unable to agree on a value, are unable to agree on an appraiser, and simply can’t discuss it, then you both end up hiring your own appraiser, and try to prove your appraiser’s value at trial. If the appraisers are both reputable, the Judge is likely to pick a number close to the middle of both parties’ values. Sounds like an awful large expense to do what you could have done outside of court doesn’t it? Mediate your divorce! Call us now.
Once the fair market value is determined, the parties must also determine what is owed on the home. This includes a first trust deed, seconds, thirds, and any other liens or encumbrances recorded on the property. To determine this amount the parties may consider a title search if they are uncertain as to what is or may be owed on the home.
Finally, the value of the home is the fair market value minus the total of all amounts owed on the home.
As stated before, there are many exceptions to the general rule. Separate property contributions, timing of the acquisition of the property, payments made after separation, other contributions, and distribution of other assets can ultimately “tip the scale” up or down causing one party to be entitled to more or less than half the value of the home.
Sometimes, absolutely! But, what happens when you both want to keep it. How would the judge decide who keeps the home? The Court will allow either party to attempt to retain the home if they are financially capable of doing so. However, this does not mean that the other party will not receive his/her share of the home.
Can you both afford to keep it, keeping in mind not only the present house payment, but also the new payment that you will have when you take money out of the home to buy your spouse out of their portion of the equity. In other words, if you wish to keep the house, in addition to showing ability to retain and pay for the house, you must buy out the ownership interest of the other party, whatever that may be. Keeping the house will usually result in the need to take money out of the equity of the home, but is not necessary. Other assets and debts may be used to offset the amount you are required to pay to the other party.
Do you have children? Are the children going to stay in the home with the primary custodial parent? That is a strong factor is deciding who gets to keep the house.
We have minor children, can I continue to live at home with our minor children and defer the sale of the home to a later time? This question is very complex and is based on a case by case scenario. However, there is a method for deferred sale, which allows the custodial parent to remain in the home after separation, after all other assets and debts have been divided among the parties, and even after the divorce is finalized. BUT, remember, if the home is community property, you both have an equal right to take your money out of the home. If you want to keep the home, but are unable to buy your spouse out of the home, he/she will be able to force you to sell. However, remember, you can always agree outside of court to allow one party to stay on the home for some time to allow the children to finish a school year, or longer. The Court will allow you both to make almost any agreement you want on this issue.
However, if a deferred sale is actually implemented, the specific issues will vary from case to case and the legal issues involved in such deferment of the sale are complex. We live together in the Family Home. I want to separate, but neither of us can move out, what happens.
Believe it or not, it is very common for individuals to “separate” (end their marriage) but continue to live together in the family home. Most people do not own multiple homes, but rather, only have the family home. If both persons continue to live in the home during the divorce process and continue to share equally or as customarily in the expenses of the home, the Court will not usually make any “support” orders until the either of the parties moves out. In most instances the parties will continue to live in the family residence until one buys the other person out of their share in the home or until the home is sold.
However, if there has been any form of “Domestic Violence” in the home, we urge you to call an attorney immediately. If you are the victim of violence, you may be able to obtain a “Restraining Order” against the other person, which often includes a “kick-out order” forcing the violent person to move out of the home.
I have moved out of the home. The home is in my spouse’s name only, how do I protect any interest I may have in the family home? Again, this is very common, but dangerously tricky. Fortunately, there is something called “lis pendens”. The most literal translation means, “Litigation Pending”. This is a document that is prepared by attorneys and recorded with the County. A lis pendens simply gives notice to everyone that there is pending litigation with regard to this property. Why is this important? The lis pendens can keep a persona from selling the home, or taking any further liens against the property. Simply put, it keeps the property at “status quo” during the litigation process. FILING A LIS PENDENS IS VERY TRICKY, IF YOU DO IT WRONG, YOU WILL PLACE YOURSELF IN A LEGALLY DANGEROUS POSITION. DO NOT ATTEMPT TO FILE IT YOURSELF.
Preparing, serving, filing, and recording the Lis Pendens requires that very specific, and not flexible, procedures be followed. If the Lis Pendens is not properly prepared, not properly served, or not properly filed or recorded, you will be in one form of trouble or another. Again, DO NOT attempt to file this on your own, call us today. We will ensure that you are protected.
The Court in California can make orders as to how the property is to dispose off, which the parties must follow. However, if you want to record a Lis Pendens or you want to enforce the order in the other State, certain procedures must be followed both in California and in the other State. The procedures change and vary from State to State.