Legal Question in Family Law in California
Community vs. Separate
My (soon to be ex) husband and I were on title until 2002, when we signed an interspousal transfer deed to me giving me
sole and separate property in front of a Notary. We are now divorcing and I would like to know if the home (in California) is considered my separate property. The downpayment came from my 401K which I do not have proof since he took all the important papers when he left the state, as well as not working for the last 10 years of the
marriage due to refusal to work, so I have made all the payments.
Thank you.
2 Answers from Attorneys
Re: Community vs. Separate
Just because you have an Interspousal Transfer Deed that does not mean that you automatically own the house as your sole and separate property.
This issue is addressed in the Family Code Section 721 dealing with fiduciary duties of spouses. There is also case precedent. You could look up the Marriage of Haines and the Marriage of Delaney.
In any event, this is a complex area of the law and, considering the nature of the asset, there may be a lot of money involved. Therefore, I strongly encourage you to seek the assistance of an attorney.
Kind regards,
Damian M. Nolan
Re: Community vs. Separate
Presumptively, the house would be yours. However, there are grounds in which he could claim a community interest, but it depends on more facts than you have given me. These are thorny legal issues and you should have an attorney to protect those interests. There is a lot of money at stake. Good Luck, Pat McCrary
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