Legal Question in Family Law in California
My wife and I bought a house a few months before we got married. The house is in her name. I gave her the money for the closing costs for it. We now are getting divorced and I am wondering what standing that I have towards the house. Is it community propoerty or is it separate propoerty? I have proof that I gave her the money as a gift to buy the house. Under CA law do I have any standing to the house? She is also trying to kick me out of the house. There is no history of violence in our relationship. Can she kick me out just because she wants me out of the house?
2 Answers from Attorneys
If you gave any contribution you made to the house to her as a gift, and you are getting divorced, it is her separate property and she can kick you out. If you as a couple made loan payments that reduced the principal debt, or made improvements to the house during the marriage, you may be entitled to some reimbursement payment out of the house, but that's it.
A long time ago, the Southern part of California used to be Mexico. We had a war. You missed it, but it was called the Mexican-American War. We won this war (if anyone could really win a war.) The treaty that concluded this war was known as the Treaty of Guadalupe-Hidalgo. As part of this treaty, the territory that forms up the majority of Southern California, Arizona, New Mexico, and Texas was ceded by Mexico. Under part of this treaty, property rights of Mexican citizens had to be observed. One of the property rights were what was known as the guarantee of a wife's separate property.
In 1849, the guarantee of a wife's separate property was written into article XI, section 14 of the California Constitution. That provision stated: "All property, both real and personal, of the wife, owned or claimed by her before marriage, and that acquired afterwards by gift, devise or descent, shall be her separate property; and laws shall be passed more clearly defining the rights of the wife, in relation as well to her separate property, as to that held in common with her husband. Laws shall also be passed providing for the registration of the wife's separate property." This provision was copied directly from the Texas constitutional provision and is identical to it.
This presumption later became embodied in Family Code section 803, which governs acquisitions before January 1, 1975. Acquisitions after January 1, 1975, are governed by other rules, but those rules also militate against you. The property was acquired before marriage, and therefore prior to any "community." You gave her the money as a gift, before marriage, so the rules regarding transmutations do not apply. The property is in her name only, which creates a presumption of title.
The only right you may have, or community right, was if community funds were used to pay down the mortgage or deed of trust through which the property was acquired. But this would only give the community a right of reimbursement from her separate property, and that would have to be divided by 2, to get your share.
If you are in her house, and she wants you out of it, she and her attorney will most likely try to get you out using the residence exclusion provisions of the Domestic Violence Protection Act. If I were you, I would get an attorney, and plan on moving to a new residence.