When couples divorce, as you might imagine, the marital home is frequently a point of contention. Who gets the house when California couples divorce? If you are divorcing, will you be able to sell the house – or able to keep it and stay there?
If you’ll keep reading, those questions will be answered by a Long Beach divorce attorney, and you will learn more about your rights in a California divorce. When you divorce in this state, it is imperative to understand your rights and options.
When marriage partners purchase a house in this state, the house becomes “community” or “marital” property. If the two eventually divorce, the house must be “divided in half,” unless the spouses can voluntarily arrive at another agreement.
WHEN A COUPLE DIVORCES, WHAT ARE THE OPTIONS FOR THEIR HOME?
In fact, if a divorcing couple can agree regarding their house, they have several options for its division. One option is putting the house up for sale and dividing the proceeds. Another option – a buy-out – happens when one partner simply purchases the other’s share of the house.
If either spouse moves away from the home, will that move affect the divorce process – or the division of the home? You don’t forfeit the right to half of the home by moving away. But do not leave the house voluntarily unless you genuinely have to. Sleep on a sofa if necessary.
WHY SHOULD YOU TRY TO STAY IN YOUR HOME DURING A DIVORCE?
If you leave the house before or during the divorce process, your spouse’s lawyer may try to characterize the move as abandonment. In southern California, before you move, speak to a reliable Long Beach divorce attorney so that you fully understand your rights and legal status.
Some divorcing couples are able to share a house while their divorce is pending, but this will not be possible for most. If both partners agree to live under the same roof during the divorce, they will need clearly established rules and boundaries.
WHAT ARE THE RULES FOR A COUPLE’S REAL ESTATE DURING A DIVORCE?
When a divorce petition has been filed and then is served in California, Standard Family Law Restraining Orders automatically take effect. These are four court orders printed on the back of the FL-110 form, and they are served along with divorce papers.
One of these orders restrains both spouses from “transferring, encumbering, hypothecating, concealing, or in any way disposing of any property, real or personal, whether community, quasi-community or separate,” without the other’s consent in writing or an order from the court.
WHEN YOU SELL A HOME IN A DIVORCE, WHAT MUST BE CONSIDERED?
When divorcing spouses agree to put their house up for sale, it is a decision that cannot be hurried and must be arrived at thoughtfully. These questions must be considered:
- What will be the selling price? How will that be determined?
- Who will be the real estate agent? How will the choice be made?
- Who will have the home ready for prospective buyers to view?
- Will every decision require the agreement of the spouses?
- Apart from the mortgage, are there other encumbrances or liens?
- If a buyer makes an offer, what is the minimum figure that you can accept?
CAN THE MARITAL HOME BE SOLD WITHOUT YOUR CONSENT?
If the divorcing partners can agree, selling the house and dividing the proceeds resolves the matter of the marital home. Of course, the inability to agree is a leading reason for divorce, so in many divorces, no agreement is possible regarding how the marital home will be divided.
When spouses cannot agree, can the home still be placed on the market as the divorce process is pending? The answer is yes, provided that there is a compelling reason and you obtain a court order.
If the house is in danger of foreclosure, either spouse can request a court order to have it sold promptly. A court order to sell the house – in order to pay attorney’s fees – may also be requested if one partner is financially disadvantaged at the time the divorce procedure begins.
However, and if no urgent reason compels the immediate sale of the house, if neither spouse is buying out the other, and if the spouses cannot voluntarily reach a different agreement, in most California divorces, a court will order the house to be sold upon the finalization of the divorce.
HOW DO BUY-OUTS WORK?
Even without an agreement between the spouses, California courts actually have the power to order one spouse to buy-out the other spouse’s share of the marital home. This is quite rare and will only happen in complex, high-asset divorces.
If a buy-out can be agreed on, a court order allowing it will still be needed. Buy-outs do not necessarily require a cash payment. Payment can be made with other properties or assets, or even by compromising on contested matters like attorney fees and spousal support.
When the court issues an order for a buy-out, the attorneys and spouses must then identify an appraiser that all of the parties find trustworthy. The appraisal – if the spouses accept it – sets the home’s fair market value.
The home mortgage and any additional encumbrances are then subtracted from the fair market value to arrive at the equity value. The attorneys and spouses may then negotiate an exact buy-out figure.
WHAT ABOUT OTHER PROPERTIES?
What about a divorcing couple’s other real estate holdings, such as rental properties? A spouse must have a court order to sell any jointly owned real estate while the divorce process is pending.
Divorcing couples should also consider the impact on their income taxes of selling the marital home. They will need the services of a good tax advisor, a good real estate agent, and an experienced Long Beach divorce attorney.
A variety of factors must be taken into account if you sell the marital home as part of a divorce. Financial matters are an important part of every divorce, so the more assets and properties you own as a couple, the more complicated your divorce becomes.
WHEN SHOULD YOU CONTACT A CALIFORNIA DIVORCE LAWYER?
But whether your circumstances are affluent or modest, a number of disputes and difficulties will typically emerge in a divorce. You are going to need an attorney’s help. Disputes over children, alimony, and the family home are quite common.
If you are divorcing in California, you must be represented – from the very start – by a reliable California divorce lawyer who will ensure that you are treated fairly and justly throughout the divorce process. Having that lawyer’s help is your right.