Legal Question in Family Law in California
I am considering "buying out" my husbands portion of the mortgage in our settlement, as opposed to sharing the house until my minor child turns 18. Within the mortgage balance is the payoff amount of a home equity line of credit.I would be using a portion of his retirement to do the "buy out", so he gets more retirement and no house, and I get less than half of his retirement and the house.My question is this---since the HELOC is part of the mortgage (that was refinanced a year ago), should he also be liable for half of that specific amount, as it was a shared debt, and he mixed it with the new mortgage to pay it off? If so, can I deduct his half from the proposed portion of the retirement? To assume the entire debt of the HELOC in addition to the mortgage seems unfair. I understand the mortgage since I would assume that with the sole ownership of the house. But the HELOC balance is a shared debt that is separate, right?
1 Answer from Attorneys
No, debt secured by the real property is debt secured by the real property. The person who takes the property almost unversally gets the entire secured debt. I think, however, that you are very confused by how the property division works. You need to have an attorney run your assets and debts through a property division software program, or at least spreadsheet it out for you and go over it. For example you don't buy out the mortgage with his retirement. One is an asset and the other a debt. You might buy out his equity with his retirement, but not the mortgage. If you take more than half the community debt, you don't get less of the other assets, he has to give you more of the other assets. You need someone to explain this to you in person in the context of your actuall assets and debts.
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