Legal Question in Real Estate Law in California

Re: community property

At the moment the home is purchased, if the deed reads "......to Mary Doe, a married woman, as her sole and separate property" or words to that effect, the deed will be persuasive evidence that the home is Mary's, and not community property. It might be possible for John Doe, Mary's husband, to rebut that evidence by showing that he (or their community) provided some or all of the down payment and that no gift to Mary was intended, or that the deed was obtained by fraud rather than their agreement. For this reason, many lenders in this situation will ask the poor-credit spouse to quitclaim the property to the other.

Then, after the purchase, the community gradually acquires an ever-increasing interest in the home as mortgage principal payments are made with community funds. If the initial down payment was very small, or if there was no money down, the community interest will be much larger at any given post-purchase time.

Remember that all earnings from employment by either spouse during marriage are considered community income, so that if only Mary is bringing home a paycheck, there will nevertheless be an increasing community interest as time goes by.

This accumulating interest is called a pro-tanto interest and divorce lawyers have computer programs to figure the community share based on data such as the down payment, mortgage size, interest rate, balloon payments, and all that stuff.