Dividing property in a divorce can be tricky. Real estate can get especially complicated if there is an uneven number of homes owned by couples. Here’s how to divide real estate in a California divorce.
California is a community property state, meaning that most property (including real estate) bought by the couple while married is divided evenly between spouses. There are a few different ways that couples can decide how to divide their real estate, including assigning certain items to each spouse, allowing one spouse to “buy out” the other spouse’s share of an asset, or by selling the assets and dividing the proceeds. If couples cannot decide on how to split their property, the court will step in and divide real estate according to community property ideals.
Types of Property and How It’s Divided
When dividing real estate in California, there are a few different types of property that people seeking a divorce should be aware of. There is community property, quasi-community property, and separate property.
Community property is property owned by both spouses or domestic partners. Almost all property that is bought by couples while they are married is considered community property in California, whether or not spouses were making and spending an equal amount of money. With real estate, this usually includes the main residential home and a vacation home (if one is owned). In California, each spouse owns one-half of the community property. Community property and community debts are usually divided equally.
Related: Community Property Laws in California
Quasi-community property is property that was acquired while the couple was living out of California that would have otherwise been considered community property if they lived in California during the purchase. This can include out-of-state vacation homes that were bought as either primary homes at some point or while living in another state. In California, quasi-community property will be treated as community property, and will be divided evenly between the spouses.
Related: Quasi-Community Property in California
Separate property is anything that spouses owned before marriage, and everything attained after the separation. This includes apartments/homes that the couples decided not to sell when they got married, or apartments/houses that were bought after the separation occurred. In a divorce, separate property is owned by the person who bought it.
Dividing Community/Quasi-Community Property
Before beginning to divide property, spouses must determine the monetary value of all of their property. It is fairly easy to determine the value of real estate compared to other property items, so once that is all figured out, couples should begin dividing their real estate. Under the divorce rules of California, spouses can divide their assets by assigning certain items to each spouse, allowing one spouse to “buy out” the other spouse’s share of an asset, or by selling the assets and dividing the proceeds. Spouses can also agree to hold property together, even after the divorce.
If only one home is owned by a couple, then they cannot split the home 50/50 unless they sell the home and divide the proceeds, or agree to hold the home together despite the divorce. If the couple decides that one spouse will keep the family home, then the other spouse will get more of other property that equals the price of the home, or the spouse keeping the house can “buy out” the family home from the spouse not keeping the house.
If a family owns two or more homes, they can more easily split the real estate evenly between the two spouses. But if one spouse wants to keep more than half of the real estate property, they must either buy out the other spouse or allow the other spouse to take more property.
FAQs About How to Divide Real Estate in a California Divorce
Who gets the house under California community property laws?
As stated above, the couple has the right to decide for themselves how they will handle the family home in a divorce. However, it is common for the parent who has primary custody of any children to be allowed to live in the home until the divorce is finalized, as well as that parent to have the home permanently. The spouse living in the house before the divorce is finalized is usually required to make all mortgage, property tax, and homeowner insurance payments when due.
Related: Who Keeps the Marital Home in a California Divorce?
If my spouse and I agree on how to divide our property, do we have to follow community property laws?
If both spouses agree on how to divide all property, then they do not need to follow all community property laws exactly. This is usually the case for dividing real estate, however, if couples cannot come to an agreement then the court will step in and use principles of community property to divide all assets, including real estate.
Contact Us
If you are seeking to divide real estate in a California divorce, contact us. Get your free consultation with one of our experienced Property Division Attorneys.