San Diego Divorce Attorney
In divorce cases in California, community property is divided equally by law. Determining whether property is community or separate can sometimes be difficult to determine, for example, if funds were “commingled” in a bank account in which both community property monies and separate property monies were deposited.
San Diego Divorce Attorney – Down payments, improvements, and mortgage payments on the marital residence.
For our purposes here, however, the general definition will suffice: community property is all the property which was acquired from the date of marriage until the date of separation, except for property received by inheritance or gift. When it comes to the marital residence, however, it is a little more complicated than that. Affordable divorce attorney San Diego has years of experience.
San Diego Divorce – Property – what if we both own the house?
When it comes to determining who owns which proportion of the equity in the marital residence, several factors come into play. The first question is, how did the married couple pay for the house? If one party used the proceeds from the sale of his or her home which was owned prior to the marriage, for example, to make a down payment on the marital residence, the family code provides that that spouse may recoup that same dollar amount in the division of assets at the end of a divorce case.
That spouse is not entitled to any additional amount based on the increase in the value of the house; the increase in the value of the residence is community property.
Other questions which need to be answered are:
What was the source of the funds which fulfilled the monthly mortgage payments, what was the source of the funds which were used to make improvements, and if one spouse moved out after the date of separation, whose funds were used to continue to make mortgage payments? Child custody lawyer in San Diego offer quality services at low rates.
San Diego Divorce – what about down payments on another property?
If a separate property contribution is made to the purchase of a home during the marriage which is then sold during the marriage, if the proceeds of that sale are used for a down payment on the purchase of a subsequent house (or houses), the separate property contribution to the first property may still be recoverable.
During the marriage, one spouse may have used separate property funds to improve the marital residence, for example, to install a pool. Similarly, one spouse may have used separate property funds to improve the separate property real property of the other spouse. This expenditure is also recoverable. A related issue occurs when one spouse retains real property owned prior to the marriage and community property funds are used to improve that property.
After separation, one spouse may have left the marital residence and the spouse who remained made the mortgage payments. However, the party out of the house may be entitled to credits for the fair market rental value of which he or she was deprived by the other spouse’s exclusive use and possession of the residence.
As you can see, there are numerous types of credit and reimbursement issues which are present in the division of real property. They may cancel each other out, or one type of credit may be substantially larger than the others. Also, while it may be clear that a type of credit exists, the precise value of that credit may be difficult to ascertain.
For example, while someone may be entitled to credits for the fair market rental value of the marital residence occupied by the other spouse, the actual rental value is not known because the residence was not actually rented.
The opinion of an expert who is familiar with rental values of properties in the same area or neighborhood may be required to establish what the fair market rental value is. Our family law attorney been a trial lawyer for 17 years and tried various jury trials.
Similarly, when separate or community funds are used to improve the opposite type of property (separate or community), the cost of the improvement is easily quantified, but the degree to which the property’s value has been improved is imprecise and will also require the opinion of an expert.
San Diego Divorce – property mediation
A final decision on how much each credit and reimbursement is actually worth usually may only be obtained at a trial on the matter. Achieving a favorable result at the trial is both uncertain and costly. A more fruitful way of apportioning the various amounts and the ultimate net amount to each side is either negotiation or mediation. If the parties are able to reach agreement on these matters, they will save time and money and they will achieve certainty of result.
Some calculations and divisions are mandatory when proof establishes, for example, that $100,000 of separate property was used to make a down payment on an otherwise community property residence. That party is entitled to a reimbursement of $100,000. But most other such rights to reimbursement are discretionary, and the judge making the decision has wide latitude to order a greater or lesser amount.
Of course, the right to recover the amounts described above depends upon the ability of the party seeking the reimbursement to prove that he or she made the payments. Often, the transactions happened many years ago. While the records of transactions may have existed at one time, it is frequently the case that banks and escrow companies no longer retain the records of transactions.If you need any help regarding a free consultation then contact our San Diego Divorce Attorney for property.
And while the records may still exist in the form of closing statements from the purchase of real estate, those records may be in the possession of only one of the spouses. It is not uncommon for such records to “go missing” when they are advantageous to one side and disadvantageous to the other side.
Further, the actual source of the allegedly separate property funds may be unclear, and it may be necessary to employ the services of a forensic accountant to give an opinion on how the funds were derived and trace their way to the account which was ultimately used to make the purchase of the residence.
If you need a Divorce Lawyer in San Diego Free Consultation, you should seek the advice of a California State divorce attorney. Again, there is a cost in order to attempt to achieve the benefit of the right a party seeks to enforce. As in the other aspects of divorce cases, there are issues of disagreement regarding the marital residence and other real property.
The San Diego Divorce Attorney at the Law Office of Michael C. MacNeil has many years of divorce law experience and will competently represent your family law case. Please call for a no-cost divorce attorney consultation at (858)922-7098. San Diego Divorce Lawyer Down payments on Real Estate look forward to helping you with any of your questions about divorce in San Diego.