Who Gets the House?

Your house is more than just a roof over your head… Not only does this structure act as the sacred keeper of your family’s memories, but it’s also often the most significant investment a married couple will make. 

Hence, if you find yourself worried, wondering: Who gets the house? in your divorce, don’t fret. You aren’t alone.

Here’s what you need to know about who gets the house in a California divorce, and how the Maples Family Law team can help you navigate these important issues. 


Who Gets the House: It Starts with Community Property

In California, a house is considered property. Hence, just like your car, bank accounts, debt, and that heirloom silverware your grandmother left you, this structure is subject to the same rules of community property, if you ever get divorced. 

Community property is one of two systems that US courts use to divide marital property, which focuses on ensuring each partner gets an equal share of marital assets. Here, the timing of when you got married (as well as when you acquired the property) will be important to determining how much of your joint assets you’ll ultimately walk away with.

To make these decisions, California courts will follow these four steps: 

  1. Identify all of the couple’s property.
  2. Classify all property as either separate or marital.
  3. Value all marital property. 
  4. Divide all marital property between spouses.  

Here’s a closer look at each of these steps, and how they specifically apply to our question: Who gets the family house? 

Step 1: Identify

First thing’s first: identify all of your property.

This ‘role call’ might sound silly (after all, how hard is it to identify a house?); however, it’s not just the house you’ll need to identify. During this step, you’ll need to produce documentation on everything you own, including all assets, real property, retirement accounts, debt, loans, credit cards, and investments. 

While these assets might not directly relate to your house, knowing exactly what you have will be important during the valuing and division phases. (After all, the court can’t divide a home’s value fairly, without knowing what else the couple owns.) 

Identifying property also acts as an important accounting step, to ensure that neither spouse is trying to hide assets from divorce court.


Step 2: Classify

Once property has been identified, the court will need to classify everything as either separate property (a.k.a. “individually owned” property), or marital property (a.k.a. “it belongs to both of you” property). 

In a community property jurisdiction, anything acquired before or after marriage is considered the separate property of whoever brought it into the marriage. In addition, gifts, inheritances, and awards of personal injury are also considered separate—regardless of when they were received. 

On the other hand, anything acquired while married—be it a paycheck, loan, credit card, or winning lottery ticket—belongs to both, equally, regardless of whose name it’s in. (Which, of course, is why your date of separation is so important, and why it’s a good idea to formalize it with a legal separation.)

Hence, in an extremely general, very sanitized scenario, a house purchased prior to marriage would possibly be considered separate property, and one purchased during marriage, marital property.

However, life is never that simple, and there’s a really good chance that at least some of the home’s value belongs to the marriage—even if it was purchased prior to tying the knot. (More on that to come…) 


Step 3: Value

Next, the court will assign a price tag to all of your marital property, including debt, investments, retirement accounts, and even bitcoin, too.

Pricing everything out is important to our house question, because a physical structure can’t be cut in half (sorry, Solomon!). Hence, only one spouse will be able to actually keep the house. The other will need to be compensated with a greater share of marital property, to make up the difference in value.


Step 4: Divide 

Finally, it will be time to divide the house and your marital property. To this end, couples can either:  

  1. Sell the house and split the value.
  2. Spouse A keeps the house, and refinances the mortgage to remove Spouse B from the loan. 
  3. Spouse A and Spouse B agree to temporarily keep the house together. 

Typically, the simplest option is to simply sell and split the value. In California, courts can’t force lenders to remove someone from a valid contract. Hence, sometimes complications can arise with refinancing. 

Then again, if kids are involved, it might be better for the custodial parent to keep the house for their emotional stability. 

In the end, there are pros and cons to each option, and it will be up to the couple and the court to determine which is best for their situation. 


Who Gets the House: Complications

So far, we’ve made the house dividing process sound very neat and clean, but the truth is, it’s usually anything but

For example, let’s say Spouse B purchased a house before getting married. This structure might have started out as separate property, however, once married, it was almost certainly paid for, maintained, or upgraded using marital funds at some point. Hence, there’s a good chance Spouse A shares at least some of the value in Spouse B’s home.

On the other hand, consider the possibility that Spouse A used separate money (like… say… funds from an inheritance) to finance a major upgrade on a house purchased after marriage. In this scenario, it’s possible Spouse A owns a share of the home’s value as separate property, even if it was purchased while married. 

Bottom line? Short of a valid prenuptial agreement, the question of who gets the house is not an easy one to answer. That’s why it’s so important to have an experienced attorney looking out for your interests during this process.


Divorce Attorneys in California

Your house might just be the biggest investment you made as a couple, so it’s pretty important to make sure its division is done right. That’s why we hope you’ll trust our experienced team to lend a hand in your divorce. 

If you have more questions about who gets the house in a California divorce, and how these rules might affect your situation, we want to hear from you. Call Maples Family Law at (209) 989-4425, or get in touch online, and let us help fight for your best interests.