How can a house be considered both separate and community property in a divorce? I’m currently going through a divorce in California and am curious if others have had similar situations where their home was part community property and part separate property. Although I haven’t reached this stage with my attorney yet, I’m looking for insights based on similar experiences.
Half of the down payment came from my separate property (profits from a previous home, as confirmed by my lawyer), and the other half came from community funds. When dividing the house’s profits, does my ex get 50% of the equity from the community funds only, while I keep 100% of the equity from my separate property?
As a Family Law Attorney in California, here’s how separate property contributions are handled:
Your separate property contribution to the acquisition of a house is known as a “separate property reimbursement claim” under Family Code 2640. This requires you to document the source of the down payment and demonstrate that it was used for the property acquisition (e.g., through the buyer’s closing statement). You are then entitled to a reimbursement for that amount, without any appreciation.
For example, if the down payment was $200,000, here’s what to expect (assuming everything is perfectly documented):
You would file a 2640 reimbursement claim. If neither party can buy out the other and the house is sold, you are entitled to your half of the down payment, or $100,000. Since the property was purchased during the marriage, it is generally considered a community asset, so you would need to argue for both your separate property reimbursement and a portion of the community equity.
In the best-case scenario, you get $100,000 as reimbursement, and the house is sold with the remaining proceeds divided equally. If you sell the house jointly, you can exclude up to $500,000 in capital gains.
If you choose to contest this further, you might argue that only 50% of the property is community due to the separate property down payment. Be prepared to spend the $100,000 on legal fees for this fight, as it is difficult to win this argument in most cases, and a judge might rule equitably, potentially denying your claim for a larger share.
In a divorce, property can be classified as separate if acquired before marriage or through inheritance, and community if acquired during marriage. Assets can be mixed, requiring careful tracing and valuation to determine the share of each type.
Most of the time, half of the staff that the family got after getting married. The things that each person owned before they got married, on the other hand, stay with them.
In California, if a house’s down payment includes both separate and community funds, it can be considered both separate and community property. Typically, your ex would get 50% of the community portion of the equity. The separate property portion, funded by your own assets, remains yours. Consult your attorney to confirm specifics.