Legal Question in Family Law in California

1. The house is separate property, as long as the payment used to make the mortgage payments is separate property. Income that you earn during marriage is not separate property, but rather community property, despite that the paycheck is in your name. If income during marriage is being used to pay the mortgage payments, then the community would acquire a pro tanto interest to the extent that the payments reduced the principal. The length of the marriage is irrelevant to determinations of community/ separate property, other than amounts.

2. When acquiring property during marriage that you want to keep separate, you must purchase that property with separate property funds that you can trace to a separate property fund. Keep it titled in your name, and have her sign a transmutation and any necessary quitclaim deeds that a title company requires. Do not commingle assets or use community funds to pay the mortgage or for any improvements.

1. Probably. You say you have been paying for the house during the marriage, but were you paying with income earned during the marriage? If so, then the community has an interest in the property. The number of years is irrelevant. It's a question of how much money went into the value of the house that was income earned during the marriage. If the house has no equity, however, it is all irrelevant.

2. The answer is the same as #1. If money earned during the marriage goes into the new house, she gets a share. The exact share would have to be calculated at the time of divorce. The only way to have the new house be yours clear of any community property claim would be a carefully drafted post-nuptual agreement in which she agreed to give up her right to the community property income that you put into the house. Why she would agree to that, I don't know, but if she signed such an agreement and it was properly drafted, it would make the new house your separate property.