Legal Question in Family Law in California
Assuming a house is community property, if one spouse pays off the remainder of the mortgage with NON-community property funds (e.g. an inheritance), if the couple divorces and the house is sold does that spouse receive back the amount of the mortgage payoff before the revenue from the sale is split?
I've been told that in the case of a down payment made from non-community property funds to one spouse, (e.g. a gift from parents) , that spouse is entitled to be recompensed for the down payment. So, does the same principle apply for a mortgage payoff?
The context is that I want to pay off the mortgage, but don't want to lose half of the value in case of divorce.
1 Answer from Attorneys
It is always a question of fact as to whether the intent of the payment is a gift to the community or an investment of separate funds. That is whether it is a down payment or a later payment. The only clear and convincing proof is a written agreement or other document evidencing the intentions, signed contemporaneously with the payment. So if it is you and your spouse's intent that your pay-off remain your separate property, just document it. The most solid evidence would be a deed recorded concurrently with the pay-off, granting title from your spouse and yourself (as joint tenants, community property, or however you now hold title), to yourself and your spouse (as joint tenants, community property, or however you now hold title) as to an x% interest, and to yourself "a married man as his sole and separate property" as to a y% interest, where y is the percentage of the total current value of the property represnted by your pay-off, and x is the remaining percentage.
Related Questions & Answers
Looking for something else?
10,200 active attorneys ready to answer your legal questions today.
Featured Attorneys
Earn additional revenue and grow your business.
