Real estate is an asset that must be divided during a divorce in Agoura Hills. If you have a premarital contract or postnuptial agreement, then you may have already done a lot of the hard work that goes into dividing real estate. Otherwise, this division for a divorce can be emotionally and financially taxing. Often, the most expensive asset a couple has is their familial home. Any additional real estate makes the process longer and more complex.
At Hoffer Family Law Firm, we understand the deep emotional attachment many families have to their homes as well as other property they may have. Our divorce lawyers go about the asset division process as fairly and equitably as possible, always keeping your interests in mind. Here’s an overview of what dividing real estate in your divorce may look like.
The first thing to recall about real estate property division is that California is one of a few states that follow the community property principle. The second thing to remember is that separate property is not included in community property unless it has been commingled.
As a community property state, all the property you and your spouse purchased while married is community property and belongs to each of you equally. For example, you get married and then you purchase a home together. That home is community property with 50 percent of the share belonging to you and the other half to your spouse.
In preparation f a divorce, you will want to make a list of all the real estate you purchased together. You will want the financials pertinent to the property, too. For instance, you will need to know:
Separate property in a community property state is real estate (or other property) you owned before marriage. For example, you already owned a house before the marriage and keep it to rent out while you and your new spouse purchase another house together to make as your home. The house you owned prior to the marriage is separate property.
You will want to have a list of all separate property so you are clear about what will be excluded from the division of assets during the divorce.
A very important issue often arises during divorces where one party already had property before the marriage. The issue is this: commingling. You may have had a house prior to the marriage, and then after marriage, your spouse started to contribute to the property by doing things like paying the mortgage or making repairs.
In cases where real estate property was commingled, financials will also be necessary to identify the value of the other spouse’s contribution. Reimbursement for the contribution may be necessary.
Now that you know what real estate property must be divided, you must determine how it will be divided. There are a few different ways to consider – one may make more sense in your unique situation than another option.
For example, you may have children still at home or one spouse may have been a stay-at-home parent. Situations like these factor into what is considered equitable or not.
A common method for real estate division is for one spouse to buy out the other spouse. This usually occurs with the family home – other real estate may be divided according to one of the options below.
To buy out the other spouse simply means to take full ownership of the property after paying the other spouse his or her share. To do so, the spouse keeping the home may refinance it, take the other spouse’s name off the title, and use the money from the refinancing to pay off the other spouse.
This method is often used when there are children and one spouse wants to keep the home for the sake of the children. It’s also used when one spouse – likely the one being bought-out – is ordered or agrees to pay spousal support and as part of that support, pays the mortgage.
Another very common method for real estate division is the sell and divide profits method. Here, the house or other real estate property is sold and the profits from the sale are split – usually split 50/50 unless there is a trade-in somewhere else.
For example, maybe there’s a boat one couple would really like to keep and it’s worth $15,000. Say the profits from the sale of real estate is $50,000, so each would typically get $25,000 from the sale of the real estate, but one spouse gets the boat, too. So, the split of the house profits could be something like $32,500 for the spouse not getting the boat ($25,000 share of the house plus $7,500 share of the boat) while the other spouse gets $17,500 from the sale of the house plus the boat.
To note, the sell and divide profits option isn’t always the best. It is ideal when both spouses are in a position to own a home on their own.
A deferred sale is another option when there are young children in the family. This method involves deferring the sale of the home. During this time, both parents still own the home jointly, but only one parent – the custodial parent – has exclusive use and possession of the home. The court will order the length of time there will be a stay on title, and upon the termination of the time-period, the home will be sold and profits will be divided.
This method is a result of two basic considerations:
There several factors the court will consider for both determinations, including:
During your divorce, it’s important to keep in mind that working together to divide the assets may be in your best interests rather than having the judge do it for you. You do not have to be limited by divorce laws but can work together to achieve an equitable division of property if not entirely equal distribution of property.
Jeffrey Hoffer, a Certified Family Specialist, has been working with families for years. He is committed to making sure your property is distributed correctly and equitably. Contact Hoffer family Law Firm to set up a consultation today and to learn more about dividing real estate in an Agoura Hills divorce.