Legal Question in Real Estate Law in California

Re: Property Buying Problem

Yes, she must use only money that is her separate property and none that is community property or traceable to community property.

If the couple has been apart, with little or no contact and no intention to resume married life, the money she's earned on her own is separate property and can be used to acquire a separate-property interest in real estate.

Separate property would also (probably) include assets she inherited or gifts she received. Any money or assets resulting from the couple's period of living-together marriage, however, would be community property and their use to make the acquisition would give rise to an interest therein by the community, and hence the estranged husband.

So, under those ground rules, carefully followed, a married woman can purchase an interest in real estate as her separate property.

Note, however, that the possibility of a legal challenge exists, and for that reason lenders and title insurers often want the additional assurance that no community interest exists that a quitclaim from the spouse will provide.

One way around this is to pay all cash and forego title insurance -- obviously impractical as to the first and risky as to the second. Your loan broker and your title insurer may be aboe to provide you with some practical tips.

Next, you refer to your co-purchaser as your fiance(e). I assume therefore that she intends to get a divorce. I think before you acquire property together, you should handle the divorce, get married, and then acquire your home as your community property. You have things in the wrong sequence. If this particular house is a teriffic bargain, maybe lease it with an option, or you buy it.

As for serving someone by publication (rather than in person), it can be done, but requires a petition to the court for an order allowing it.

Finally, the two of you absolutely must put together and sign a written agreement covering all aspects of your joint financial involvement, especially any real property deals you make. Cover the intentions of the parties. Cover who makes the down payment, by whom and how title is to be held, who makes payments (interest-principal-insurance-taxes), who does maintenance and what happens when you break up (which inevitably happens even if it isn't until the first of you passes away).