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  1. #1
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    Jan 2019
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    Default Property Rights in California

    My question involves marriage law for the State of: California

    When my wife and I got married, I owned a condo property for 13 years. She waived her rights to the property, ie the deed has only my name, married man, etc. She was a stay at home wife/mom for the first several years that we were married. This year she started a home business where she has made several thousand so far, nothing that we can live off of on its own but still good supplement money. She is a sole proprietor, I help with the accounting / business license side of the business, and we file joint taxes. So far, I have been putting all profits into a joint account, the same account that I use to pay all the bills, including the mortgage for the condo.

    I was just reading "All property you own before marriage is your separate property in California, as long as you keep it separate and do not mingle it with community property". Does this mean she has a right to it since I used a joint account to pay for the mortgage and despite her signing off her rights to the condo? Would setting up a separate bank account for the business now (6 months into it), allow me to keep full rights to the condo?

  2. #2
    Join Date
    Oct 2006
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    16,391

    Default Re: Property Rights in California

    Quote Quoting daufoi
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    My question involves marriage law for the State of: California

    When my wife and I got married, I owned a condo property for 13 years. She waived her rights to the property, ie the deed has only my name, married man, etc. She was a stay at home wife/mom for the first several years that we were married. This year she started a home business where she has made several thousand so far, nothing that we can live off of on its own but still good supplement money. She is a sole proprietor, I help with the accounting / business license side of the business, and we file joint taxes. So far, I have been putting all profits into a joint account, the same account that I use to pay all the bills, including the mortgage for the condo.

    I was just reading "All property you own before marriage is your separate property in California, as long as you keep it separate and do not mingle it with community property". Does this mean she has a right to it since I used a joint account to pay for the mortgage and despite her signing off her rights to the condo? Would setting up a separate bank account for the business now (6 months into it), allow me to keep full rights
    The equity that has accrued since you got married is community property. Your income from your work is community property just as her income from her business is community property. The only way that the condo would be your sole and separate property (no community interest at all) would be if totally separate property paid the mortgage and upkeep. So, if you had had a million dollars in a separate bank account when you got married and that was the only money you used to pay the mortgage and upkeep then the condo would be entirely your separate property. Otherwise it's not.

  3. #3
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    Nov 2013
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    Default Re: Property Rights in California

    Quote Quoting daufoi
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    I was just reading "All property you own before marriage is your separate property in California, as long as you keep it separate and do not mingle it with community property". Does this mean she has a right to it since I used a joint account to pay for the mortgage and despite her signing off her rights to the condo? Would setting up a separate bank account for the business now (6 months into it), allow me to keep full rights to the condo?
    To keep the pre-marriage property separate you can't use community funds to pay the mortgage, pay taxes, or maintenance fees. Whey you use comingled funds you muddy the waters. You should only use your income to pay the expenses of the property.

    The horse may already be out of the barn. Separate accounts is a good way to go. But when and if you ever seek a divorce, it will be a judge that decides if the condo became community property and to what extent.

    Your deed is good evidence as to intent to keep the property separate even though some community funds were used to maintain it. Your spouse however could claim for reimbursement of those funds while you would keep ownership.

    The party contesting the property's community status bears the burden of establishing its separate character. (In re Marriage of Haines (1995) 33 Cal.App.4th 277, 290, disapproved on another point in In re Marriage of Valli (2014) 58 Cal.4th 1396.) This rebuttal of the presumption may be accomplished by "any credible evidence," such as "tracing the asset to a separate property source, showing an agreement or clear understanding between parties regarding ownership status[, or] presenting evidence the item was acquired as a gift." (Ibid.)
    https://scholar.google.com/scholar_c...d=2&as_sdt=4,5

    Quote Quoting llworking
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    . So, if you had had a million dollars in a separate bank account when you got married and that was the only money you used to pay the mortgage and upkeep then the condo would be entirely your separate property. Otherwise it's not.
    That is not correct.

  4. #4
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    Mar 2013
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    Default Re: Property Rights in California

    Quote Quoting daufoi
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    She waived her rights to the property, ie the deed has only my name, married man, etc.
    No, she didn't. At least not unless you had a pre-nuptial agreement which I don't think you have.

    There's a difference between ownership and marital interest. You own it. She has a marital interest in the equity that has accrued during your marriage.

  5. #5
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    Feb 2020
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    Default Re: Property Rights in California

    Quote Quoting budwad
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    To keep the pre-marriage property separate you can't use community funds to pay the mortgage, pay taxes, or maintenance fees. Whey you use comingled funds you muddy the waters. You should only use your income to pay the expenses of the property.

    The horse may already be out of the barn. Separate accounts is a good way to go. But when and if you ever seek a divorce, it will be a judge that decides if the condo became community property and to what extent.

    Your deed is good evidence as to intent to keep the property separate even though some community funds were used to maintain it. Your spouse however could claim for reimbursement of those funds while you would keep ownership.

    That is not correct.
    Not so. If it is an amicable divorce then a judge doesn't decide anything.

    Not only does joint money used to pay the mortgage muddy the water, but if the property required much labor to maintain and operate, that has joint value too.

    I had a very similar experience when I went through a divorce (in CA) where I owned rental property prior to marriage. The property ran itself in the black and I rarely did any labor on it. I had no prenuptial on it. My divorce lawyer said that a property like that will remain sole and separate property for about 5 years before the courts will deem it community property. In my case both lawyers agreed that it was my separate property because we got divorced at the five year mark and there was no commingling of money. Also, no judge even looked at our settlement agreement because we handled it amicably ourselves.

  6. #6
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    Jul 2018
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    Default Re: Property Rights in California


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