The family home is often the most valuable marital asset, so it is natural that both divorcing spouses will want to keep the house. In addition to its value, the family home helps the custodial parent provide a sense of continuity for the children. But both parties need to recognize that the division of marital assets in California is largely based on the community property guidelines.

Determining possession of property can involve many considerations, even though theCalifornia courts identify only two primary types of property ownership:

  • Community property is broadly defined as everything both parties own together, which would include a home acquired during the marriage. In fact, even if one spouse paid for the home, both parties may own it — if the money used to pay for the home is community property because it was earned during the marriage.
  • Separate property is anything owned individually, typically including assets acquired before the marriage, as well as inheritances or gifts received by one party during the marriage.

During more than three decades as a divorce attorney handling property division in California, I can tell you that some assets don’t fall neatly into either category. The courts sometimes identify property as mixed community and separate because of the way couples handle these assets. For example, even if one spouse bought the home before the marriage and retained title after the marriage, the other spouse may have contributed mortgage payments or helped pay for home improvements. Such commingling can complicate property division during divorce.

Perhaps the best way to reduce disputes about property division in such a situation is to execute a premarital agreement that specifies that the home belongs to one party and any contributions by the other party are the equivalent of rent. Even in the absence of a written agreement, however, an experienced California divorce attorney can help find equitable ways to divide mixed property.