Your Spouse had a Mortgage before MARRIAGE
– is it half yours?
Property division is sometimes not as simple as it should be.
In California, it should be simple to determine whether an asset is community property, but in some cases, it’s not. If your husband buys a house during the marriage, half of it usually belongs to you. If he bought it before the marriage, however, whether you have an ownership interest depends on many factors. For example, whether he put your name on the deed; whether he made mortgage payments during the marriage with any community funds; or whether you made any financial or sweat-equity contributions to the home.
Even if your husband’s house starts out as separate property, it may not stay that way. Once you’re married, your earnings and his are community income. If he uses community income to pay the mortgage, that gives you an ownership stake. How much of a stake depends on the circumstances, and whether he keeps exact records of how much community income he invested in the house. If he’s paying with separate income, such as a trust fund or an inheritance, he may be able to keep the house 100 percent his own.
Transmutation of Property
Transmutation refers to a process by which separate property becomes community property. For example, commingling can cause transmutation. If your husband intends to pay the mortgage out of his separate money but ends up using your joint checking account to make the payments, it’s possible that transmutation can occur. Another way in which transmutation can occur is if your husband places your name on the deed.
rental income in your account
When you get hitched owning separate property, it can have a ripple effect. If your husband’s mortgage is on a rental home, for instance, and if he continues to pay the mortgage during your marriage with his separate funds, again, not with his earnings, the rental income is separate income, too. Of course, commingling and transmutation can occur here as well. For example, if he always puts his rent checks in your joint bank account, and pays for repairs out of that account, the rent money is probably no longer separate property.
Prenup or Postnup Agreements
It’s always possible to change the ownership rules with a prenup or postnup agreement. If you agree, say, that your husband can spend his earnings to make the mortgage payments and that the house will remain his separate property, it will be his. In that case, you have no claim to the home. Prenups and similar contracts — as long as they are valid and are not considered grossly unfair — trump state law with regard to property division.
Community property states aspire to a 50/50 equal division of marital property and usually don’t touch separate property, but that doesn’t necessarily mean you will receive “your” exact proportion of every asset. Suppose your marital assets amount to $400,000: it doesn’t matter which $200,000 in assets each of you walks away with. For example, perhaps you have only a 10 percent ownership interest in the family home, but you have young children and you hope to keep living there. It’s possible to make an agreement with your husband and essentially buy out his share of the home. That way, he could keep more of other assets in exchange for giving up his interest in the home.