Is My House Separate or Community Property in California Divorces?

Separate or Community Property

Is my house separate or community Property? In two recent California cases, that old cliché that “you better get it in writing” (perhaps one of the most repeated pieces of legal advice ever tendered) were borne out, yet again.

Separate Property Transmuted to Community Property

In In re Marriage of Holtemann (2008) 162 Cal.App.4th 1175, husband executed a trust for estate planning purposes, which included a Transmutation Agreement. The Transmutation Agreement stated clearly that husband’s separate property was transmuted to community property. That the Court found that the property was in fact transmuted to community probably causes you no surprise. Mr. Holtemann was surprised. He had also included language in his trust that the transmutation was conditional, only for estate planning purposes, and not for purposes of a divorce. The Court found that by putting the clear language of transmutation in his trust Mr. Holtemann had made a decision to transmute, and he could not take it back, or place conditions on the transmutation.

Community Property Became Separate

In In re Marriage of Brooks & Robinson (2008) 169 Cal.App.4th 176, husband signed a deed putting the family home in wife’s name at the time it was first purchased. Only husband paid the mortgage payments, wife did not pay a dime, ever. Wife ultimately moved out and without notice to husband, sold the home out from under husband, keeping a check for $41,851.03. Husband and the parties’ 7 year child were evicted. Normally in California the Court will essentially ignore the form of title, and follow the community money. If something was paid for with community funds (here, husband’s wages during marriage were community) then the Court will presume that it is community and split it 50/50. But Mr. Brooks had signed that deed when the property was first purchased. He put it in writing, and he could not take it back – in spite of a large body of prior California Law to the contrary.

Get It In Writing

In these two tales the wife got what she wanted, in writing. Later, having it in writing was very helpful to her. Do not be surprised if your divorce attorney suggests that you get an agreement in writing.