Family Residence

The family law attorneys at Richard Ross Associates apply over 30 years of legal experience to solving complicated issues in divorce matters, such as how the family residence will be dealt with in the property settlement.

On the subject of property division, the family residence is often the spouses' single greatest asset.  Since California is a community property state, it is not uncommon for both spouses to own a one-half interest in the family residence.

The Presumption of Title

Generally speaking, when a residence is acquired during marriage in any kind of joint form, the law presumes that residence to be community property.  In order to rebut that presumption, one must show either a clear statement in the deed or other document showing that the residence is separate property or proof of a written agreement between the spouses that the residence is the separate property of one of the spouses.

The Right to Reimbursement

According to California Family Code section 2640, a party has a right to reimbursement for contributions made to the acquisition of the property.  Reimbursable contributions include down payments, payments for improvements, and payments to reduce the principal on a loan used to finance the purchase or improvement of the property.  Contributions which are not reimbursable include loan interest payments or payments made for maintenance, insurance, or taxes. 

This right to reimbursement can be waived.  Also, in order to secure the right to reimbursement, the party must be able to trace the payment to a separate property source.  This can be a complicated matter and subject to much dispute in court, requiring legal assistance to resolve.

Complex Issues

There are many different ways the purchase of a residence may involve both community property and separate property, and each method presents different complications in the property division of a divorce: 

• Community Property may be used to purchase the home as Community Property
• Community Property may be used to purchase the home as Separate Property
• Separate Property may be used to purchase the home as Community Property
• Separate Property of one spouse may be used to purchase the home as Separate Property of the other spouse 

Another problem is the issue of refinancing or second mortgages, which may be accomplished using Community Property funds on a home owned as Separate Property.

Capable Lawyers for Complex Problems

With over thirty years in the practice of law, the attorneys at Richard Ross Associates are experienced in handling the most complex estates and complicated issues in divorce and property division.  If you are unclear on how the family residence will be dealt with in your divorce, contact Richard Ross Associates for capable representation.