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  • Writer's pictureJaini Morkhiya


Updated: Apr 15, 2021

Property division is a highly contentious issue in divorce—particularly if you and your spouse have children. The division laws can be complex, and they differ from state to state.

You may be especially concerned about your home. Who will need to move? Will you need to sell it to a third party? Either moving or selling your home can add to the trauma of the divorce, and matters may become even more stressful if your spouse is fighting for a resolution that is entirely different from what you believe is fair (and in the best interests of your children).

Let’s take a look at the factors that may come into play when a court determines which spouse should keep the house in a divorce.

Community Property Laws

California is a community property state. As such, properties acquired during the marriage are considered community properties, meaning they are equally owned by both spouses—even if only one spouse paid for it. This applies even if one or both of you were living in another state at the time of the purchase. The exception to this is if one spouse had savings before the marriage and used these savings to purchase the property themselves. Gifts and inheritances received by only one spouse are also counted as separate property, rather than community property.

Your home, therefore, may be community property if:

  • You and your spouse bought the house jointly; or

  • You or your spouse bought it separately, but you/your spouse used money earned DURING your marriage.

Your home might NOT be community property if:

  • The house was given as a gift to only one of you;

  • Only one of you inherited the house;

  • Only one of you bought it using money earned BEFORE your marriage; or

  • Only one of you bought it BEFORE your marriage.

If the house is separate property, it goes to the spouse who owns it. If the house is community property, however, equity may be divided in several ways, depending on many factors.

You and your spouse may come to an agreement regarding who can keep the house, but the court will need to approve this plan. In some cases, the house may need to be sold, and proceeds will be divided among the two of you. In other cases, one spouse can take full ownership of the home and pay the other spouse their fair share. This second option will require a refinancing process that removes the other spouse’s name from the title.

The Best Interests of Your Children

Any family law court will be greatly concerned with the wellbeing of your children. In the best-case scenario, children will remain in the family home with the custodial parent, so as not to increase the turmoil and stress resulting from the divorce.

In a divorce involving children, the court will need to consider the following factors before deciding which parent keeps the home:

  • The amount of equity in the home

  • The amount left on the mortgage

  • The financial standing of each parent (i.e. who can afford the maintenance and mortgage payments)

  • The child’s preference, age, general wellbeing, and other characteristics

  • Which parent is getting custody of the child

Because each situation is so unique, there is no quick formula to determine who will keep the family home. The best way to obtain a realistic prediction is to consult with a highly experienced attorney.

Let Our Team Help You Navigate This Process

Divorce is never easy, and it is especially difficult when you and your spouse cannot come to an agreement on your own. With so much at stake, we urge you to bring your situation to US Legal Group, APC. We provide compassionate and sensitive support, coupled with aggressive representation of your best interests. If you need a legal team that is personally and professionally committed to your family’s wellbeing, let us handle your divorce process from start to finish.

Give us a call at (714) 921-5226 or contact us online today. We can begin with a complimentary consultation.

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