Legal Question in Real Estate Law in California

Re: Can married people purchase property seperatly?

Several legal principles come into play here, and they involve not so much real estate law as the California community-property laws.

First, spouses can have separate property as well as community property (and debts). The usual sources of separate property are (1) assets owned prior to the marriage, (2) gifts, and (3) inheritances. Separate property loses its separate nature and becomes community property when it is "commingled" with community property, but may retain its separate quality if tracing is possible, e.g. husband owns 100 shares of General Motors before marriage, keeps it in a separate brokerage account, then after marriage sells it and uses the proceeds (including some dividends held in the brokerage account) to buy 125 shares of Ford. The Ford shares remain separate property.

So, whether the Arizona real property is going to be separate property or a form of community property will depend on where the down payment comes from, and perhaps to some extent whether his or community credit is relied upon by a lender.

Another principle of community-property law worth keeping in mind is that spouses are supposed to conduct their financial and property affairs with a high degree of openness, candor and fiduciary responsibility. You would have the right to demand an accounting from him, for example, regarding his Arizona transactions.

Note also that if your husband was (or is) domiciled in Arizona at the time the property is acquired, it would technically be "quasi-community property" but the legal result is nearly the same.

A spouse cannot make unusually large gifts of community assets (as this property may be) without the consent of the other.

Finally, if this property is used in or related to a business that your husband manages, there is a provision of family law that makes it somewhat easier for him to buy and sell, but this does not affect its community or separate property nature and a court would award you your share in a separation or dissolution proceeding.

This is probably the appropriate time for you to retain a family law specialist (a/k/a divorce lawyer) to take at least defensive measures on your behalf, which might include using an investigator in Arizona and/or notifying the escrow holder or lender that there may be a community-property interest. If an improper gift to the brother occurs, it can probably be un-done by an appropriate court action, although being in another state adds another step to the process.

Re: Can married people purchase property seperatly?

Yes he can do this. The real question is whether you have an ownership interest in the house by virtue of your marriage. Yes, if community property funds were used. No, if he used his separate property to make the purchase. Community property would be money earned at work during the marriage. Separate property funds would be money he came into the marriage with (assuming he kept it segregated) or money he received via inheritance. This all assumes there was no prenuptial or postnuptial agreement.