Preserving the Family Home Even if Your Spouse Owns it Outright

California is a community property state.  So property obtained through wages and efforts of each spouse during the marriage are community property and generally divided in half at dissolution.  Separate property is property is not included in the category of community property.  Separate property is property held by a spouse before marriage, or during the marriage by gift, bequest, or devise.   Separate property usually becomes that of its owner after a dissolution action.

   

If you are in a hotly contested divorce or dissolution action, there may be a way to preserve the family home even if the family home is a separate property asset of your spouse.  Preserving the family home when it’s your spouse’s separate property is possible only if you have children and you have primary physical custody.  Under California Family Code § 3800 et seq., it is fairly common for Judge to enter a deferred sale of home order for a home that has both a community property and a separate property interest.  For example, one spouse has a house that has not been paid off yet before getting married and the other spouse helps pay off the mortgage with community property assets.  So this house is separate property with a community property interest.  If this couple has children, and then decides to get a divorce, the deferred sale of home order helps the spouse with primary physical custody to keep the children in the family home.  The policy of this law make some sense because you want to keep the children’s living situation as stable as possible.  In this situation, both spouses have an interest in the family home.

This post takes this one step further.  It might be easiest to understand with a hypothetical:   Husband owns the family home outright as his separate property and this is quite clear.  Wife has primary physical custody of two children and has been living in the family home for 8 years.  It may be possible under California Family Code § 3800 et seq. to defer the sale of this home for several years.  (Marriage of Braud (1996) 45 Cal. 4^th 797)  In this type of situation, the family court will look at the following factors (California Family Code § 3802(b)):

1. The length of time the child has resided in the home.
2. The child's placement or grade in school.
3. The accessibility and convenience of the home to the child's school and other services or facilities used by and available to the child, including child care.
4. Whether the home has been adapted or modified to accommodate any physical disabilities of a child or a resident parent in a manner that a change in residence may adversely affect the ability of the resident parent to meet the needs of the child.
5. The emotional detriment to the child associated with a change in residence.
6. The extent to which the location of the home permits the resident parent to continue employment.
7. The financial ability of each parent to obtain suitable housing.
8. The tax consequences to the parents.
9. The economic detriment to the nonresident parent in the event of a deferred sale of home order.
10. Any other factors the court deems just and equitable.

Of course, considering all of these factors, the court will grant a deferred home sale order for a property that is entirely the separate property of the non-resident spouse only in certain situations.  However, a spouse that has custody of the children and the children have strong ties to the surrounding environment will have a good chance of getting and deferred home sale ordered granted in their favor possibly for several years.  

It is best that if you attempt to get an order like this granted you seek the services of an attorney.  If you are in need of a Pleasanton Divorce Lawyer please contact the Law Office of Barry D. Witt at (925) 399-9790.    Contact a San Jose Divorce Lawyer (408) 883-3884.  Contact a San Mateo Divorce lawyer (650) 425-3455.  Contact a Castro Valley Divorce Lawyer (510) 244-2400 or visit www.lawofficeofbarrydwitt.com

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