Divorce is one of the most emotionally traumatic events anyone can experience. In addition to the emotional trauma, you can expect a significant degree of financial uncertainty as property is split between you and your spouse. The family residence is normally the most important item of property that a couple owns, and if you want to keep it, you are going to have to understand the rules that govern the distribution of marital property in California.

Marital Property under California Law

Under California marital property law, any property obtained by either spouse during the marriage (until legal separation) is presumed to be marital property, owned jointly by each spouse, unless an exception applies. Relevant exceptions include:

  • Property inherited by only one spouse

  • Property that is given to only one spouse

  • Property that one spouse purchases with separate assets (with money earned before the marriage took place, for example)

  • Property that both spouses agree belongs to only one spouse

Certain other exceptions apply as well.

If the Home Is Titled in Only One Spouse’s Name

Like other property, real estate transferred to a married person during the marriage is generally presumed to be marital property. This presumption can be overcome under certain circumstances, however. The presence of only one spouse’s name on the title document, for example, might be used to assert that the spouses intended the house to be one spouse’s separate property.

This conclusion is not inevitable, however. Who paid the mortgage payments on the house? Were mortgage payments taken out of marital property or out of one spouse’s individual assets? If you want to keep the house, it is certainly to your advantage if your home is titled in your name only. And it is certainly to your disadvantage if the house is titled in the other spouse's name only. But this is not necessarily the end of the story.


If you want to keep the house but it has been classified as community property, one way you could gain undisputed ownership would be to buy out your spouse’s 50 percent interest in it. This would likely require the agreement of the other spouse, although the family court judge might decide to award you the house and award your spouse a larger share of the marital estate’s other property in compensation.

Deferred Sale

If the reason why you seek sole ownership of the family home is to maintain a stable environment for your children, a family court judge might order a deferred sale if it would be in the best interests of the children (you could also agree to this with your spouse). Under this arrangement, the custodial parent would live in the house with the children until they reached a certain age, and then the house would be sold and the proceeds split between the spouses.

Long Term Co-Ownership

Divorcing spouses can agree on long-term co-ownership of the family home. This is not a typical arrangement, of course, because of the high potential for conflict. Although you can agree to this arrangement with your spouse, a family court judge is unlikely to order it.

Consult with the Professionals

If you anticipate your home being involved in a property division incident to a divorce, call CKB Vienna today or contact us online to schedule a case consultation with us. We serve clients in Rancho Cucamonga, San Bernardino County, Los Angeles County, Orange County, and Riverside County.