Real Property
For many families, the home is the most valuable asset. If the couple has children and can afford to keep the house despite living separately, the law usually favors awarding the house to the person who has custody of the children most of the time. This guideline is called the Family Home exception. However, if the parties cannot afford to keep the house, it may be sold with the proceeds distributed per the direction of a judge.
Because a person's income streams change severely after a divorce, the party awarded the house may have to consider different options to continue making mortgage payments. One common action is for the spouse retaining the home to refinance (if he or she qualifies) and buy out the other spouse's stake in the property.
Another option for the divorcing couple is to split the assets over time. A general approach to this is to award the right to live in the house to the spouse with primary custody of the children for a set number of years. When the defined time expires, that spouse will buy out the other spouse's interest or sell the house and divide the proceeds.
County clerk offices offer a self-protective step for people or couples owning real property known as a lis pendens. The lis pendens is essentially a notice of pending litigation that may affect real property. Filing a lis pendens puts third parties on notice of your claim to have an interest in the real estate against which the lis pendens is docketed. A properly recorded and served lis pendens clouds the title to the property, preventing the property's effective sale.
Moschetti Family Law can help you through this difficult time. If you have any questions, please contact us for help in understanding how California's laws pertain to your property. Call us at
Articles
Mortgage Issues - Refinancing in Divorce
Should I Sell the House or Buy Out My Spouse?
Codes
Family Code §754
Family Code §2581
Family Code §2626
Family Code §3800
Family Code §3801
Family Code §3807
Family Code §3808
Family Code §3809
Cases
In re Marriage of Walrath 17 C4th 907
In re Marriage of Epstein 24 Cal.3d 76
In re Marriage of Jeffries 228 CA3d 548
In re Marriage of Herrmann (1978) 84 Cal.App.3d 361
In re Marriage of Marsden (1982) 130 CA3d 426
In re Marriage of Wolfe (2001) 91 CA4th 962
In re Marriage of Allen (2002) 96 CA4th 497
