What happens to my house when I get divorced?

Was your home purchased before or during marriage?

If the house was purchased before marriage, it may be separate property. This means that the spouse that purchased the house may get to keep it without paying the other spouse, subject to exceptions. If the home was acquired during marriage, it may be community property. If the house is community property then both spouses are entitled to an equal portion of the equity in the home.

Who is on the deed?

If both spouses are on the deed, there is a presumption that the house is community property. If only one spouse is on the deed, it may be presumed separate property. During marriage, people refinance and often get (bad) advice from escrow companies or loan officers to change the title from one spouse to both spouses. This may have an effect on how the court determines how much of the house each person is entitled to.

Where did the downpayment to purchase the home come from?

If one spouse can prove the downpayment came from a gift, inheritance, or money earned pre-marriage, then that spouse may be entitled to be reimbursed for the separate property down payment.

Was there a mortgage on the property?

If there was a mortgage, payments of the mortgage during marriage may entitle the community to a portion of the equity, even if the house is separate property.

Who is living in the house after you separate?

If one spouse is living exclusively in the house, they may be entitled to a Watts charge for the rental value of the property, because one spouse is using it and the other is not. A Watts charge may be applicable if one spouse has exclusive use of community property after the date of separation. If a Watts charge is applicable, the spouse with exclusive use of the community property will be obligated to pay the other spouse the fair rental value for the use of the property.

Do you want to remain in the house? Do you want to allow the other party to buy you out? Do you want to sell the house?

These are all issues to consider with the help of an attorney.

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