Who Gets the Home in a San Diego Divorce - Family Law Property Division

Who Gets the Home in a San Diego Divorce?

Pierre Domercq Community Property Division

Who gets the home in a San Diego Divorce?  We are often asked this question, however there is  no simple answer to the ultimate disposition of your home at the outset of a divorce.  The family home represents many things to both parties in a divorce. There are many components: financial, emotional, impact on the children, and even pride and the amount of work you’ve invested into the home.

What happens when only one of the parties is listed on title.  This may be due to credit issues.  It may also be the result of one of the parties owning the home prior to the marriage.

The most important thing to know about who gets the home in a San Diego divorce is there will be an order at the outset of divorce proceedings which will freeze all transactions involving the sale or additional mortgaging of the couple’s house during the divorce proceedings.

If the home was purchased during the course of the marriage it will most likely be considered to be community property and the equity in the home may be equally distributed to each party as part of the property division process.

If one of the spouses wishes to keep the family home, they must “offset” the interest of the other spouse with other assets during the community property settlement.  It is important to consider the risk of remaining on the mortgage after a divorce.  The Judge may order the property to be the property of one of the spouses but this does not remove them from an existing mortgage.

If the spouse who gets the home in a San Diego divorce falls behind on their payments it will impact the credit of their former spouse.  It is often better to consider refinancing the home.  This can provide some or all of the offset and remove the non-custodial spouse from the mortgage.

If one spouse owned the home prior to the marriage, but the “community” funds were used to make mortgage payments and to make repairs there may be a substantial legal discussion regarding the amount of value which is “community property” and the amount that is classified as “separate” property for the initial property owner.

One of the parties may have filed a “lis pendens” which is essentially a lien stating that the party has a financial interest in the property. Just because one of the parties is the only one listed on the title, doesn’t mean the Court will view that asset as a separate asset belonging to that party.

All of these issues must be resolved before you’ll know who gets the home in a San Diego divorce. Generally speaking the question will revolve around the “equity” in the home and the impact of that equity upon property division.  In many cases the home is sold and the proceeds are divided according to the community property aspects of the remaining equity.

The question of who gets the home in a San Diego divorce is usually quite complex.  We invite you to protect your interests and contact the experienced Certified Family Law Specialists at Burke & Domercq, conveniently located in Carlsbad, or call 760-434-3330 to schedule an appointment to discuss your unique situation.