Dividing real property in a California divorce can be complicated, especially when a home or other real estate has characteristics of both separate property and community property. Whether one spouse purchased the house before marriage, made mortgage payments using community income, or invested in improvements, determining the correct apportionment of real property requires legal expertise.
At Fernandez Law Group, our Los Angeles family law attorneys and support staff guide clients through the complexities of property division to ensure a fair and accurate distribution of assets.
Understanding Separate vs. Community Property
California follows community property laws, meaning that assets acquired during the marriage are generally considered community property and subject to equal division upon divorce. However, some assets remain separate property, which belong exclusively to one spouse.
When it comes to real estate, property can have both separate and community characteristics, requiring apportionment to determine ownership rights.
- Separate Property: Real estate acquired before marriage, through inheritance, or as a gift is typically considered separate property.
- Community Property: Any income earned during the marriage, including mortgage payments or home improvements made with marital funds, is considered community property.
- Mixed-Character Property: Real estate that started as separate property but was later paid for or improved using marital funds must be apportioned between community and separate interests.
Methods for Apportioning Real Property in a California Divorce
When real estate has both separate and community property components, courts use specific methods to divide the property fairly.
The two primary methods used in California are:
The Moore/Marsden Formula
California courts use the Moore/Marsden rule to determine the community interest in a home when one spouse purchased it before marriage but made mortgage payments using community funds.
- The Moore case established that if a home increases in value during the marriage and community funds were used to pay the mortgage, the community gains an interest in the property.
- The Marsden case refined this rule, clarifying how to calculate the exact community share of the appreciation in home value.
The formula considers:
- The original purchase price and the mortgage amount before marriage (separate property share).
- How much was the mortgage paid with community funds (community property share)?
- The property’s increase in value during the marriage.
Direct Tracing of Separate Contributions
If a spouse contributed separate property funds to the purchase or improvement of real estate, they may be entitled to a separate property reimbursement under Family Code Section 2640. This means the spouse can reclaim their original contribution before dividing the remaining value.
Factors That Affect Property Apportionment
Several factors influence how real property is divided in a California divorce, including:
- Mortgage payments: Were they made using separate or community funds?
- Home improvements: Were they funded using marital income or one spouse’s separate assets?
- Title ownership: Did both spouses jointly own the property, or was it titled in one spouse’s name?
- Property value changes: Has the home appreciated significantly since the marriage?
Protect Your Real Estate Interests with Fernandez Law Group
Apportioning real property in a divorce requires a detailed financial and legal analysis to protect your interests. At Fernandez Law Group, we work with financial and real estate professionals to ensure accurate property division that reflects separate and community contributions. If you are going through a divorce in California and have concerns about real estate division, contact us today at (310)-564-9163 or online for a consultation to discuss your case with our experienced Los Angeles County family law attorneys.