Carlsbad Family Law Attorneys

How a House is Going to Be Divided in a Divorce?

The easiest way to divide assets in a divorce is to split them in half. Wife gets half the money in the bank and Husband gets the other half. Wife gets her car and Husband gets his. When it comes to the house things can get a little complex. Obviously a house cannot be split in half like a bank account. The options are to sell the house or for one spouse to “buy out” the other spouse’s interest in the house. But who gets what share of the sales proceeds? What is a fair buyout offer? The answers to these questions require a sound knowledge of the law in California pertaining to the division of community property. This article will address the division of a house in a divorce when that house is not considered to be 100% community with the equity in the house belonging to each spouse equally.

The two scenarios that we often see which make the division of a house a bit more complex are as follows: 1. One of the spouses owned the house to be divided coming into the marriage or 2. One or both of the spouses used their own separate property to pay down the mortgage or as a down payment on the house to be divided.

What if I owned the house prior to marriage?

Moore/ Marsden Apportionment determines Community Interest in a Separate Asset

When one spouse owns a house prior to marriage and that house remains throughout the marriage and into the divorce, the marital community earns an equitable interest in that house if money earned by either spouse during the marriage is used to pay down the mortgage on the house. This is known by divorce lawyers as Moore/Marsden apportionment named after landmark California divorce cases. In cases like this, a percentage of equity is determined with the marital community benefiting from an increase in the value of the property over the curse of the marriage.

What if I used my money for the down payment?

Family Code Section 2640 Reimbursement determines Separate Interest in a Community Asset

When one spouse uses their own separate property to pay down the mortgage or as a down payment on a co-owned house to be divided, that spouse gets a dollar for dollar reimbursement equal to the amount of separate property contributed to the pay down of the mortgage or down payment on the house. That dollar for dollar reimbursement comes off of the top if the sales proceeds from the sale of the house. The remaining equity is divided equally—which includes the increase in value from purchase to sale.

The biggest difference between a Moore/ Marsden and a Family Code Section 2640 apportionment is that in a Moore/ Marsden apportionment, the community actually earns a percentage of the increase in value of the property—with a 2640 reimbursement the separate property contribution does not increase the ownership percentage as it relates to the division of capital gain on the property.

Obviously these issues can become more complex as the number of variables and transactions increase–especially in long term marriages.  If you are considering divorce and have questions related to complex property division call one of the experienced San Diego Family Law attorneys at Griffith, Young & Lass for a free consultation today.

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  • John N. Griffith, Esq., CFLS
  • Catie E. Young, Esq., CFLS
  • Amy J. Lass, Esq., CFLS
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  • John N. Griffith, Esq., CFLS John N. Griffith, Esq., CFLS

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    John Griffith has practiced exclusively in the area of family law since 2009. John is a Certified Family Law Specialist certified as an expert in the area of family law by the California Board of Legal Specialization. Prior to opening Griffith, Young & Lass, he worked as the managing partner of one of the largest family law firms in North County San Diego.
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    Catie E. Young excels in child custody cases and move-away trials. She has a unique approach to child custody cases and clients of Griffith, Young & Lass tend to gravitate toward her in these cases. Since joining the firm, she has continuously brought her zeal and compassion to representing clients in child custody and domestic violence cases, and in December 2011, she became a partner at Griffith, Young & Lass.
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  • Amy J. Lass, Esq., CFLS Amy J. Lass, Esq., CFLS

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    Amy Lass, a certified family law specialist, was born in New York and raised in San Diego, California. Amy graduated from Cal Poly, San Luis Obispo in 2003 with a B.S. in Economics with a concentration in Enterprise Accounting. Amy went on to earn her law degree from Thomas Jefferson School of Law and graduated cum laude in 2006.
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  • Shirin Asgari, Esq. Shirin Asgari, Esq.

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    Attorney Shirin Asgari has a broad spectrum of legal experience and has handled matters in family law, criminal law, business law, and national security law. Currently, she focuses on family law matters and is a strong advocate for the rights of her clients. She dedicates time and attention to the needs of each client and the unique circumstances their case presents.
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  • Eric Cowdery, Esq. Eric Cowdery, Esq.

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    Eric Cowdery earned his bachelor’s and Master’s degrees before earning his JD from Golden Gate University as part of the Honors Lawyering Program. He was admitted to the California Bar Association in 2013 and has been working diligently in the field ever since. Taking a personalized approach to each case, Eric Cowdery is committed to working with clients to help them through the often confusing and complex legal process of divorce.

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  • Jeffrey Wittliff, Esq. Jeffrey Wittliff, Esq.

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    Jeffrey Wittliff is extremely attentive to his cases and believes in thorough preparation and the value of regular client communication. Behind the scenes, he has an extensive background in research related to all areas of family law, propounding discovery when necessary, and negotiation to settle cases with opposing parties.
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  • Joshua Yee, Esq. Joshua Yee, Esq.

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    Attorney Joshua Yeereceived his Bachelor of Arts degree in Political Science, from the University of California, San Diego. Joshua went on to receive his Juris Doctor degree from University of San Francisco. His experience working with a local Certified Family Law Specialist solidified his desire to become a family law attorney. Since becoming an attorney, Josh has exclusively practiced in family law.
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  • Shaudi Malekzadeh, Esq. Shaudi Malekzadeh, Esq.

    Associate

    Shaudi Malekzadeh is a Carlsbad family law attorney at Griffith, Young & Lass, advocating for the rights and interests of Southern California families in a variety of family law cases, such as child custody, alimony, spousal support, and the division of community property. She is committed to delivering effective legal representation to our clients, aggressively advocating for their legal rights, and offering compassionate legal advice.
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