Legal Question in Real Estate Law in California

Re: Married man purchasing real estate without wife's knowledge

Factually possible. Legally permissible? Perhaps. Morally questionnable? Definitely.

If the property was purchased with community property money, wife would have a community property interest even if her name was not on title. In the event of a divorce or a bankruptcy filing, you would be legally required to disclose this asset.

Re: Married man purchasing real estate without wife's knowledge

If you are paying cash, probably. Of course, in California, any property purchased during marriage is presumably considered to be community property.

If you are taking out a loan, the lender will require that your spouse sign a interspousal deed before they will lend any money.

Re: Married man purchasing real estate without wife's knowledge

the bottom line is no -- a 2 page answer would normally follow

Re: Married man purchasing real estate without wife's knowledge

I agree with Mr. Koenen and Mr. Starrett that it is possible -- indeed, it happens all the time -- but possibility does not mean that it is proper.

On the other hand, one cannot categorically say that every instance of a married man buying real property without his wife's knowledge or consent is improper. Family Code section 721 covers the subject. 721(a) says "Subject to subdivision (b), either husband or wife may enter into any transaction with each other, or with any other person, respecting property, which either might if unmarried."

721(b) goes on to limit 721(a) by saying, in so many words, that spouses are fiduciaries of one another and must not take unfair advantage of the other, including not withholding information requested by the other.

Family Code section 752 says "Except as otherwise provided by statute, neither husband nor wife has any interest in the separate property of the other."

Family Code section 770 defines separate property and goes on to say that a married person may convey (i.e., sell or give away) the person's separate property without the consent of the other spouse. By extension, if you can turn one kind of asset (tangible property) into another (cash), it's also OK to use separate-property cash to buy real property.

Of course, if the husband's deal involves community money for the down payment OR for future mortgage, etc. payments, very different and tougher standards would apply.

By the way, while most lenders would not lend to a married man for even a separate-property loan without the wife quitclaiming to him first, this is not a universal requirement. Many amateur or unethical lenders would make the loan.

The reason we have lawyers and they earn the big bucks (occasionally!!!) is that lawyers are trained to sort out and explain all this conflicting statutory and case law.

I think the ultimate test of a spouse buying real property without the knowledge or consent of the other is whether the non-disclosure is sneaky and deceiving, something that the husband really wants to keep undiscovered; or, on the other hand, whether it's a more or less routine re-alignment of separate property assets (or even in the normal course of business of a community-property business the spouses own but he manages, with her consent, on a day-to-day basis.

I'd say probably 5 to 10% of such deals would be ethical, moral and legal, and the remaining 90 to 95% would violate the spirit, if not the letter, of the law (Family Code and cases interpreting it).

Re: Married man purchasing real estate without wife's knowledge

In California, without a prenuptial agreement, it will be presumed community property.

Re: Married man purchasing real estate without wife's knowledge

Is the Pope Catholic? Does a bear ...

Can a man cheat on his wife without her finding out? For awhile, he may get away with it, but like the previous responses, there are adverse consequences in him doing so.

How do you find out? You do a title search, and find out when and if he acquired property. If he acquired it during the marriage and it there is no prenuptial agreement, no transmutation, and his purchase is not traceable to separate property, it is community property.

This kind of thing keeps the sharks fed. I mean, it keeps lawyers busy.

Very truly yours,

Re: Married man purchasing real estate without wife's knowledge

Yes, it's possible, and yes they do it.