Legal Question in Real Estate Law in California

Re: What happens to property after filing for divorce

Let's put it this way, if I could foretell the future and answer your question I would be answering your question from a yacht in the Aegean Sea going from Greek Isle to Greek Isle. The rapport between two parties getting a divorce changes on a moment to moment basis. More importantly, if she has not received any advice from an attorney what she says now will change 180� after the advice is given. The quick answer is, You Bet it will probably be a problem. Go out and get yourself a real good attorney who specializes in family law and let him/hurry help you deal with this situation, as it changes day-to-day.

Re: What happens to property after filing for divorce

In California divorces, community assets and liabilities are divided 50-50 (as to total dollar impact) with minor exceptions.

The divorcing spouses can and often do enter into voluntary property settlements which the court will approve and make part of the final decree if they seem to divide the property fairly. You and your spouse should seek the assistance of a family law attorney in negotiating a property settlement. Unless you are pretty much in agreement on everything, each of you should have your own attorney.

Now, the jointly-owned property....are you saying that upon its sale, you will take ALL of the net proceeds (after paying off loans, commission, taxes, etc.)? This may or may not be fair; it seems to me that your spouse MAY be entitled to a share of the net equity based upon the prior ownership, but this cannot be stated with certainty without full facts as to how and when it was acquired and paid for, etc.....IF she disclaims it, I suggest you ask her to quitclaim the jointly-owned house to you as your sole and separate property before its sale and before you file for divorce.

When buying the replacement house, you need, at minimum, to have the deed to you read, "Joe Doakes, a married man, as his sole and separate property." This will clarify that your soon-to-be ex-wife is not a co-owner nor is this new house community property. In addition, you may have to obtain a quitclaim from your wife in order to meet lender requirements, if you are planning to get a loan in your name only.

Finally, I should caution you that under the Family Code spouses owe each other a high duty of disclosure and ethical conduct and are fiduciaries of one another. A spouse's attempt to take unfair advantage of the other by failing to disclose ownership interests, fair value, etc. or to enter into undisclosed or mischaracterized transactions will probably be unearthed during the dissolution proceedings and will be reversed or otherwise punished......so beware of anything that even fantly resembles fraud or unfair advantage.