Deciding to divorce can be one of the most challenging decisions a couple can make. Divorce is complex and involves the couple deciding what will happen to assets if there will be spousal support, child support, and custody, to name a few. One of the most common concerns is what will happen to their shared home and mortgage when they divorce in California.
Understanding how a mortgage is handled in a California divorce can help couples navigate this challenging time more smoothly. Here’s what happens to a mortgage when couples in California decide to part ways.
California: A Community Property State
California is a community property state. That means that during a divorce, couples must split all assets the couple acquired during the marriage equally. The only exception is if the couple signed a prenuptial agreement before the marriage. In that case, the prenup overrides community property laws.
On the other hand, you have separate property. Assets and debts are considered separate property when one spouse enters the marriage with them. Some types of separate property include property, financial gifts, or an inheritance received by one spouse, even if they received it during the marriage. Each spouse retains the total amount of their separate property in a divorce.
Is a Mortgage Community Property?
This is where things get a bit tricky. It is considered community property if you purchased your house after marriage or with funds you earned during the marriage.
The mortgage would be considered separate property if you purchased the house with your own money before marriage. However, a couple of circumstances could make the home considered community property.
- Mortgage payments made jointly after the marriage would be considered a community interest in the property and evenly split in a divorce.
- If you change the title to include your spouse, it will be considered marital property.
What Happens to a Mortgage in a California Divorce?
Regardless of what is stated in your divorce decree, if you and your spouse share a mortgage, you’re both still responsible for paying for it. While this may seem unfair, the mortgage lender is a separate entity, so the terms of your divorce don’t apply.
If you’re the spouse leaving the home, it can be concerning to continue making mortgage payments for a house you no longer live in. Fortunately, you have options.
Buyout
In a buyout, the spouse who remains in the home buys out the other spouse’s share of the equity in the house. To do this, the buying spouse must refinance the home in their name and pay the selling spouse their share of the equity. Since the buying spouse must independently qualify for a new mortgage, it can be challenging if their income alone is insufficient.
Sell the Home
One of the easiest solutions is to sell the home and divide the proceeds. This allows the mortgage to be paid off, and the remaining equity can be split between spouses. However, selling a home takes time and may not be in both parties’ best interest, especially if children are involved.
Co-Ownership
Some couples choose to continue to co-own the home after the divorce, especially if they want to maintain stability for their children. This arrangement requires a clear agreement on how expenses and mortgage payments will be handled and often involves setting a future date or event (such as children finishing school) when the home will be sold.
Defer Sale (Birdnesting)
Sometimes, couples may choose to defer the home sale until a later date. This can involve one spouse living in the house while the other maintains a different residence or both spouses rotating in and out of the home to minimize disruption for their children. This arrangement required detailed planning and cooperation.
Turn to the Award-Winning Team at Azemika & Azemika During Your Divorce
Divorce is a challenging life event, and dealing with a mortgage can add to the complexity. Because California is a community property state, it’s essential to understand your options and the legal framework clearly. By carefully reviewing the information in this article, you can navigate this aspect of your divorce with confidence and greater financial security.
Azemika & Azemika has been handling family law cases for over three decades. We understand the emotional toll divorce can have on you, so our dedicated team is here to help you every step of the way. We have handled some of the most challenging and high-asset family law cases in Kern County. We are here to provide that same aggressive, knowledgeable, and affordable representation to you in your case.
Our firm has been selected as Best of Bakersfield for Divorce and Family Law attorneys for two years running. Contact us today to work with our award-winning team.
