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Married in CA. Bought home in CA before marriage. Added wife to title. 1st property sold & used funds to buy new home in CA.

San Jose, CA |
Filed under: Divorce Real estate

My wife and I got married in California and have been married 3 yrs. I purchased a home several years before marriage but still owned about 65% of the loan balance at the time we got married. Within the 1st yr of marriage I refinanced the home and added her to the title of the house only; not the loan. We sold the house this year & used almost 100% of the funds from the sale of the 1st house to buy a new property in CA. We're now both on title & the loan. We plan to file for divorce this yr. From the sale of the house we put $250K & she saved $50K since marriage & put that as down payment. Total down $300k. Expect $300k in cash left after home is sold. Would my future ex be entitled to 50%($150k) since she was on title of the 1st home even though I had paid for most of that home b4 marriag

Attorney Answers 4


  1. While the house is community property, each of you may be entitled to a FC2640 reimbursement of your separate property contributions to the acquisition price. This would be a dollar-for-dollar, interest-free reimbursement, from the top, before splitting the remainder of the proceeds.

    In your case, you contributed money prior to marriage which is presumptively your separate property contribution. This money was paid, however, to the purchase of the original house. Therefore, you will, as Mr. Benton indicated, need to trace this contribution through to the present house.

    Your wife's contribution, on the other hand, sounds like it was accumulated during the marriage, making it a community property contribution that is not subject to reimbursement.

    So the quick and dirty take that I see, assuming your facts are true and can be corroborated by a good tracing, would be that you get the first $ X from the proceeds, and then you split the remainder with your wife.

    I recommend that you work and an experienced family law attorney to make sure that you are able to prove your case in court, should that become necessary.

    Legal disclaimer: The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. Attorney is licensed to practice law only in the State of California. Responses are based solely on California law unless stated otherwise.


  2. Accord with counsel but recommend ADR and use of a CDFA

    Ms. Straus (aka Carroll) may be reached at 800-400-8978 during regular business hours, Pacific Time, or anytime by email at: ECSEsquire@AOL.com. All of Ms. Straus’ responses to questions posted on Avvo are intended as helpful information based upon the facts stated in the question, and are not to be relied upon as a final legal opinion. It may not be what you wished to hear, and it does not create an attorney-client relationship. Ms. Straus is licensed to practice law in California. If you would like to obtain specific legal advice about this issue, you must contact an attorney who is licensed to practice law in your state, and retain him or her. Me Straus provides “unbundled” services if you need specific assistance with a specific issue.


  3. Since, you are the spouse who is claiming separate property interest, it is your burden of proof to trace the $250k to separate funds. She may be entitled to moore-marsden community interest in the first house, but it would not be much and she is entitled to the 2640 reimbursement claim if she can trace the 50K to separate property fund. You need an accountant and a good lawyer to do the math on this one.

    This response will not create an attorney-client relationship between you and Sarieh Law Offices, and is not intended to serve as a legal advice in your specific circumstances. This response is a legal opinion based solely on facts represented and you should not rely on this legal opinion as a legal advice. You still need to consult an attorney directly to fully protect your legal rights.


  4. ALWAYS involve a lawyer when you make any deal that could cost you.

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