Choosing who gets to stay in the marital home during a divorce is often one of the most contentious issues when spouses separate, along with child custody and spousal support. California is a community property state where marital assets are split 50/50 between spouses in a divorce. The answer to the question of who keeps the house depends on the status of the house in or outside of the pool of marital assets.
In the best-case scenario, a divorcing couple in California can come to the terms of their divorce agreement through negotiations with the help of their Los Angeles divorce attorneys or professional mediation. Part of the discussion should involve the marital home. Ideally, the divorcing spouses will consider the best interests of their children if they are parents, and make a decision about the family home that would cause the least trauma to the children, such as the parent with the majority of parenting time keeping the family home and the spouse taking an asset of equal value to meet the state’s 50/50 divorce law requirement.
But ultimately, who keeps the family home in a California divorce depends on the status of the house in the state’s community property laws.
What is Separate Property vs. Community Property in California Divorce?
When considering the division of marital assets, California defines separate property as any assets, real estate property, and bank or investment account belonging to an individual before they are married as remaining separate property, unless the individual comingles the asset with their spouse, such as giving the spouse access to an account or inviting them to make substantial improvements or investments into a property or asset. Inheritances and gifts also remain separate property unless comingled with a spouse. On the other hand, Marital property includes any assets or real estate property acquired by the spouses while they were married. Even if a home is only in one spouse’s name when purchased, if it was purchased during the marriage it is a marital asset. If the home was one spouse’s inheritance, it continues to belong to that spouse, unless the other spouse makes significant improvements or invests money and/or time into adding to the value of the home, in which case, it becomes community property.
Because determining what is or isn’t separate or community property can become quite complex, it’s best to hire an experienced attorney to represent your interests while negotiating a divorce agreement.
When divorcing spouses fail to reach a mutually acceptable agreement for a 50/50 division of their marital assets—including the family home—the matter goes before an impartial judge to decide.
Is it Better to Keep a Marital Home During a California Divorce or Sell it?
There are advantages and disadvantages to remaining in the marital home during and after a divorce. Remaining in the house offers the following advantages:
- You don’t have to find a new home and move your things during an already stressful time
- It provides stability for the children if you have 50/50 custody or greater
- You have time to decide if you’d like to stay in the home or sell it and move to a new place for a fresh start
On the other hand, disadvantages could include:
- You may have difficulty making the mortgage payments in new financial circumstances following a divorce
- Maintaining a home may be difficult to manage alone after a divorce
- It could be a sad reminder of your previous family life that causes emotional distress
If the marital home is determined to be a community asset, you and your spouse must negotiate terms to decide if one party keeps the home and the other takes an asset of equal value, or if it’s best to sell the home and split the equity 50/50. If the issue becomes contentious, both spouses will have the opportunity to present their arguments to the court for a judge to decide.