3 Crucial Questions About The Family Home In Divorce

There are three important questions to ask when determining what rights you have regarding the family home.

1. When was the home purchased?

If the home was purchased during the marriage and before the date of separation, it is presumptively community property which will be split equally unless either party has a right to reimbursement under Family Code section 2640. The community property presumption can be rebutted by one spouse claiming the property is separate property based on how title to the property is held.

2. How is title to the property held?

If title to the property is held by one spouse, the title presumption will trump the date of purchase presumption and the property will be deemed the separate property of the spouse who is on title. However, if the spouse took title in his or her name alone during the marriage and used community property to buy the property, the spouse who holds title must demonstrate that he or she took title with the other party’s knowledge and consent. Likewise, if one spouse acquired title during the marriage by the other spouse transferring his or her interest to the titled spouse, the spouse who holds title must demonstrate there was a valid transmutation of the character of the property from community property to separate property and that there was no undue influence in the transaction. A presumption of undue influence arises when a spouse gains an unfair by the change in character of the asset and the spouse who gained the unfair advantage must prove that the transfer was entered into knowingly, voluntarily and intelligently otherwise title will be restored to community property.

3. What can you do to protect your interest in the family home?

It is important to understand the consequences of taking title or changing title to a property during marriage. Before agreeing on how title will be held or signing a document transferring title to your spouse, you should seek legal advice so you can protect your interest in the family home.

Categories: Divorce

About the Author

Rachel Castrejon opened her own law practice immediately after graduating from Loyola Law School and passing the California Bar exam in 1998. When she first opened her practice, she handled a variety of cases including wrongful termination, criminal appeals and family law matters. Ultimately, she chose to practice exclusively in the area of Family Law because she likes helping her clients through a very emotional process. Rachel’s goal is to help her clients through one of the most difficult times in their lives – the breakup of their family. Rachel understands the importance of achieving a resolution that is good for the entire family, particularly the children involved.

Learn more about Rachel

Disclaimer: The information and examples provided herein are based on the laws and regulations at the time of writing. Prior to deciding how to hold title in your property, you should consult with an accountant, probate attorney or family law attorney to determine the best way to hold your property for the purpose you want to accomplish.

What are the benefits of Mediation In the Family Law Context?

There are four primary benefits to mediation:

    • The parties can control the outcome of their case.
    • Reduced Cost
    • Less antagonism and emotional drain.
    • Mediation is confidential.

In addition to the cost savings detailed above, mediation is a way for the divorcing couple to control the outcome of the case.  When a case is not mediated and the parties have the court decide issues, the court is bound by certain rules and cannot deviate from those rules.  In mediation, the parties can be creative in dividing property, continuing to hold property jointly, payments of spousal support and developing parenting plans.  The mediator should assist you in achieving both parties’ goals for your family post-divorce.  For instance, in certain cases it might be important for a spouse receiving spousal support to receive a lump sum at the outset of the divorce rather than receiving payments over time.  Mediation allows a divorcing couple to agree on a one-time lump sum buyout of spousal support (aka alimony) while a court can only order monthly, ongoing payments if there is no agreement by the parties.

Mediation generally decreases the cost of getting divorced as an efficient mediator will usually help the parties resolve matters in a few two-hour sessions.  Thus, the parties are incurring the cost of one mediator, rather than paying two attorneys to prepare documents to submit to the court.

Unlike the litigation process which often requires parties to submit filings to the court, which can create a lot of stress and cause the parties to make public very private matters, the mediation process enables parties to exchange information in a more informal way.  Thus, the exchange of information is less anxiety provoking.

Finally, mediation is confidential.  That means that you can discuss matters freely during mediation without worrying that the mediator will be called to court to testify about what was said.  The open lines of communication allow for a more honest and family centered approach to mediation.

Categories: Mediation

About the Author

Rachel Castrejon opened her own law practice immediately after graduating from Loyola Law School and passing the California Bar exam in 1998. When she first opened her practice, she handled a variety of cases including wrongful termination, criminal appeals and family law matters. Ultimately, she chose to practice exclusively in the area of Family Law because she likes helping her clients through a very emotional process. Rachel’s goal is to help her clients through one of the most difficult times in their lives – the breakup of their family. Rachel understands the importance of achieving a resolution that is good for the entire family, particularly the children involved.

Learn more about Rachel

Disclaimer: The information and examples provided herein are based on the laws and regulations at the time of writing. Prior to deciding how to hold title in your property, you should consult with an accountant, probate attorney or family law attorney to determine the best way to hold your property for the purpose you want to accomplish.