Is Your Home Separate Property or Community Property?

by Jeff Grotke on Mar. 08, 2015

Divorce & Family Law Divorce & Family Law  Divorce Divorce & Family Law  Family Law 

Summary: A marital home may be separate property, or community property, or both, depending on the circumstances.

Is Your Home Separate Property or Community Property?

    In a marriage it is often a complicated question as to whether the home belongs to you, your spouse, or both of you. If you owned the home prior to the marriage, you might assume the home was your separate property, but you would be wrong if you used income from the marriage to help pay the mortgage. If you pay the mortgage during the marriage, the payments you make will generally be from community income, and therefore, the community acquires an interest in the real property. This is true regardless of whether or not you are exclusively on title, or both have your names on title. 
    This does not mean that the property is just split in half. Generally, the Court will look at the amount of equity that you had in the home before you were married, and attempt to apportion the values accordingly.
    "When community funds are used for mortgage payments on property purchased by one spouse before marriage the community acquires a pro tanto interest in the ratio that the payments on the purchase price made with community funds bear to the total payments on the purchase price, and any appreciation must be apportioned accordingly. Marriage of Moore (1980) 28C3d 366,371, 168 CR 662, 664.
    This formula can be used:

Purchase Price _______

Amount of Down Payment _______

Amount of payments on loan

principal made with separate funds _______

Fair Market value at date of marriage _______

Amount of payments on loan principal

made with community funds _______

Fair market value at time of division _______

Subtract line 1 from line 4 _______

Subtract line 4 from line 6 _______

Divide line 5 by line 1 _______

Multiply line 8 by line 9 _______

Subtract line 10 from line 8 _______

Add lines 2, 3, 7, and 11 _______ = SP Interest

Add lines 5 and 10 _______ = CP Interest

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