Legal Question in Real Estate Law in California

This is one of the areas of law where self help is no help at all. California is a community property state. The basic definition is that everything that is acquired by the parties between the date of marriage and the date of separation, not counting gifts and inheritances, is community property.

What a lot of people don't realize is that this means their earning during the marriage are community property, regardless of which spouse goes to work, and which one stays home with the kids.

The community acquires interest in separate real property when community funds are used to pay down the mortgage. What this means is you may have purchased real property before marriage, which is your separate property, but the community acquired an interest in it during marriage if your income was used to pay down the mortgage. (This rule would not apply if the mortgage was entirely paid from rents earned from separate property. But it applies if the money used to pay the mortgage is his or your salary or earnings.)

Commingling of money in accounts presents another problem, and many courts will treat the commingled accounts as community accounts, especially when it becomes impossible to trace any separate character of individual funds.

I suggest you speak to a competent attorney familiar with community property law, that can review the documents that you are having your husband sign. That attorney would be able to help you structure things to ensure the separate property character of your real estate is not lost, inadvertently.

I agree with Mr. Roach. The use of wages and salaries to make payments on mortgaged real estate will begin to give the marital community a sliver of an interest in the property, and half of that sliver would go to the spouse upon divorce or death. The community interest is called a "pro tanto" interest and, due to the tiny portion of principal (compared with interest) in the early years of a mortgage, it is very small in the first few years of a mortgage, but becomes significant over time, gradually diluting your initial 100% separate ownership. Assuming you made a 20% down payment from separate funds and the community paid all the rest, by the time the mortgage was paid off, you would own 20% as separate property and 40% as your 50% share of the community interest. For details about how community property works, ask a family-law attorney.