Division of marital property during a divorce is usually highly contentious.  People who are typically reasonable when it comes to child support may become unreasonable when it comes to dividing assets, furniture, or the family house.  If you are facing a divorce, you must protect your financial future and speak with our divorce attorneys about your legal rights concerning property division.  Our firm has the experience necessary to handle a range of complex legal issues associated with marital property division and high-asset divorce settlements.

California is a community property state.  This means that all assets accumulated during the couple’s marriage are community property and property that belongs to both spouses equally.  However, there may be some exceptions in which certain property is deemed “Separate Property.”  For example, if one spouse receives an inheritance or certain types of “gifts.”

When a divorcing couple moves through the divorce process in California, the couple’s home will be the most important asset they will negotiate over during the asset division process.  Who keeps the home or pays for the home often becomes a significant point of contention for the divorcing spouses.  How the couple’s home is handled must be dealt with prior to finalizing your divorce.  If keeping the family home is important to you, there are a few things that you must understand. It is important that you obtain legal advice from one of our licensed divorce attorneys as every situation is different, and the following information is not legal advice.

One of the essential pieces of guidance that we offer our clients who want to keep the family residence is to, if possible, remain in your home until you have retained and discussed the matter with your divorce attorney. If you leave the marital residence before or during the divorce proceeding, this may weaken your position in keeping the family home. If you have already moved out, talk to one of our attorneys about the best approach to move back into your home.  This is can be a very challenging situation and could provoke your spouse to turn to law enforcement.  In some cases, an angry spouse will file false domestic violence charges against the other spouse to try and gain leverage during a divorce.  Therefore, it is essential that you speak with our divorce lawyers about your specific situation, learn about your legal rights, and determine the legal strategy to return to the marital home.

Some divorcing couples choose to sell the home and split the equity proceeds evenly.  Other couples decide to delay the sale of the marital residence due to the children.  One of the best ways to keep the house during a divorce is to negotiate with your spouse peacefully.  An effective strategy that may help you successfully keep the family house is to give your spouse other marital assets that equal half of the home’s equity.  A few examples of marital assets that could be given in exchange for an interest in the marital home include retirement accounts, vehicles, household goods, precious metals, cryptocurrency, stocks, bonds, and bank account balances.  Your spouse might be willing to take your share of the other marital assets for their share of the marital property.

Frequently the Court splits the family home and assets by awarding the house to one spouse and an equal amount of assets to the other spouse since the family home cannot be divided. This is why it is important to try and negotiate the best deal for yourself.  If your spouse really wants the marital home, it might be more cost-effective and financially beneficial to negotiate a greater monetary settlement in terms of the other marital assets. For example, if the home’s equity is $100,000, it might be in your best interest to take $75,000 in marital assets instead of receiving half of the home’s equity.

Another option is to pay off your spouse’s interest in the home by borrowing the money from a bank.  You could either take out a home equity line of credit or apply for a mortgage refinance.  In either case, it would be required to prove that you are pre-qualified for these loans before the divorcing couple can reach a settlement agreement.

In the absolute worst-case scenario, you could simply choose to move on, let the house go, place the home on the market, and use the proceeds of the sale to buy a new home for yourself.  It might be heartbreaking and difficult to sell the family home and start over.  However, many people find that the fresh start was the best thing that could have transpired out of the divorce.

Contact Our Santa Clara Divorce Lawyers 

If you are dealing with a marital dispute, you need legal representation as quickly as possible. For your initial consultation with one of our San Jose divorce attorneys at the Dominion Law Group, LLP, simply contact our law firm at 408-288-5592, or contact us online through our website contact form. Our divorce attorneys represent clients throughout San Jose, Santa Clara, Campbell, Mountain View, Palo Alto, Los Gatos, and all other cities in or around the San Francisco Bay Area.

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