Your home is your castle, and this mindset is never more evident than when a divorce leaves a couple arguing about who gets the family home. In many cases, it’s where a couple raised their family. During happier times, it was probably a sanctuary of peace and security. The high emotional value can cause all parties involved to respond more dramatically when it’s time to divide the marital assets.
Most divorced couples do not wish to continue to own a home together. (This does happen in some cases. It is called a deferred sale, but it is a rare situation). In the typical divorce settlement, the home is sold. Proceeds are divided between both parties as ordered by the court. Sometimes the proceeds will be split 50/50, but this is not always the case. An alternative method of handling the marital home in a divorce settlement is for one spouse to buy out the other one.
In most cases, the sale of the home is not contentious. It is generally as simple as choosing a real estate agent to handle the transaction, cooperating with the sale of the house, and abiding by the court order or other agreement regarding the distribution of the proceeds.
When marital home provisions are included in a divorce settlement, they usually include provisions outlining how the real estate agent will be chosen, how the price of the home will be set/adjusted, dispute management process in the event there is a disagreement regarding property price, how to handle repairs, responsibilities for showing the property and keeping it ready to show, issues that will be taken to the court if the couple cannot agree, and how to manage and split the proceeds.
Another option for handling the marital home in the typical divorce settlement is a buyout. A buyout is when one spouse wants the house and is willing to purchase it from the other spouse by buying out their share of the property. For example, if a couple’s home was valued at $200,000 and the wife wanted to keep the house, she would buy out the husband at $100,000. For the buyout to work, both parties have to agree. The “payment” for the buyout often comes in the form of an offset another asset followed by refinancing.
Family Code 2640 addresses reimbursement of a separate property down payment on the marital home. If you have questions about how to address this during the division of assets, talk to an experienced California divorce attorney. If you have concerns about what happens to a home that is one spouse’s separate property, but community earnings or savings paid the mortgage payment during the marriage (and reduced the overall principal) ask your qualified California divorce attorney about the Moore Marsden Claim and how it applies to your case.