Legal Question in Real Estate Law in California

For your own privacy, you should not disclose your name.

Your home is your separate property and it does not change because you marry. However, if you are not careful, you can so called commingle separate and community property so as to transforms at least a portion of the former into the latter. You should prepare a pre-nupital agreement as to whose is whose. You might want to put the house into a revocable trust so you technically are not the owner [but may have tax consequences]. You have to make the mortgage payments and all the costs of the house should be paid by you; he should pay you a monthly rent. But all that might offend him. Perhaps you can say that your parents insisted upon it or they would not show up to the wedding or pay any of the bills. But if your future husband pays any of the house bills or you pay them from income earned from work after the marriage, he may be entitled to reimbursement of 1/2 if you divorce.

Mr. Shers is clearly not a family law attorney. Paying the bills for real property out of community earnings does not have quite the dire effect he thinks it does. What happens is you subject yourself to a claim for a 2640 reimbursement. In case of divorce, the community is entitled to reimbursement for community funds that increased the equity value of real property, expenses are not reimburseable. So the mortgage payments only are reimburseable to the extent of the principal portion of the payment, not the interest. A weekly gardener is not reimburseable, but a new pool would be. He is correct, however, that if you own property with any significant equity in it, a pre-nup is a very good idea.

A "2640 reimbursement" refers to Family Code section 2640. If you not only own your home, but have it fully paid off, the community is significanly less likely to acquire an interest and the house probably will remain your separate property. However, the earnings (wages and salaries) of either spouse during marriage are community property, so if you have a mortgage and either you or he or both of you make payments that reduce the principal balance out of your earnings, there will begin to be a sliver of community-property interest, sometimes called a "pro tanto" interest. The effect is slow because, among other things, the mortgage payment in the early years of a long-term loan goes more to interest than to principal reduction.

I agree that a large portion of Mr. Shers advice is inaccurate. In particular, it is unimportant who makes the mortgage payments; what is important is whether the payments are made with community funds or separate funds, and the wages and salaries of either of you, earned during marriage, are 100% community funds. Also, a revocable trust, while useful as an estate-planning tool, will not alter anythinr respecting accumulation of a pro-tanto community interest during your lifetime.

I vote for the prenuptial agreement, and do use a trust for estate planning, but don't ask for rent or worry about who writes the mortgage checks unless you can write them out of an account containing funds that are not community property.