Legal Question in Real Estate Law in California

Re: How can I protect my home/investment from law suits

you need an attorney not a notary --- why would you rely on a notary who has no legal training --- your husband has in ca an equitable interest in the house which can vary in percentage based upon which legal formula under the law that would be applied, it is somthing a little less than 50% interes, you have the legal title to the residence --- the rest of your question calls for a substantial amount of advice and needs numbers of answers to questions before the proper legal advice can be given --- if you wish to consult with me as hundreds of folks have over the last 30 i would be happy to do so --- i am in no. ca 925-945-6000

Re: How can I protect my home/investment from law suits

If the ex-wife is still in "attack mode," you may not be able to prevent lawsuits, but at least you seem, presently, to be in a good position to defend, should a suit be filed.

Quitclaim deeds (rather than grant deeds) are often used in escrows where one spouse takes title as his or her separate property; the non-owner spouse thereby disavows (and surrenders) his or her interest, if any, to the other. It is an extra precaution that may be unnecessary, but lenders and others like the added protection.

If the house is your sole property, and you hold it neither as community property nor as joint tenants, the house will pass according to (1) the terms of any inter vivos or testamentary trust you have set up for estate-planning purposes; (2) your will; or (3) California's rules of intestate succession, if you have neither a trust or a will.

Under (1) or (2), you can leave the house to your husband or not; the result depends upon your choice and isn't automatic. Under (3), your widower would take a share of your total estate, which might or might not include the house, or a fractional interest in the house, and the size of the share would depend upon the number of lineal descendants you had.

So, my advice is to see an attorney that does estate planning, if you haven't already done so, and take the necessary steps to be sure your estate goes where you want, and not where you don't want.

Re: How can I protect my home/investment from law suits

I think you have been getting some advice that's not exactly correct, but you still may be okay here. If you purchase a home in California and pay for it with your current employment or business earnings, it is considered community property regardless of whose name the deed is under. Community property is normally liable for all debts of either spouse, including support obligations from a previous marriage. However, under California law, if community property is applied to such a support debt, the community estate is entitled to reimbursement from the liable spouse's separate property. So,if your house is community property, it can be reached by the ex-spouse for support obligations (not necessarily other lawsuits). Should that happen, your husband would be obligated to you to make the community estate whole from his separate property (if he has any).

The percentage of the equity in the house equal to the percentage of the total house payments paid for by your parents' payment of the down payment is your separate property if it was intended by your parents as a gift to you.

One way to protect the property from his ex- is to enter into a "transmutation agreement". This is an agreement whereby your husband gives up all community property rights in the house. In the case of real estate,it must be in writing. The grant deed he signed is probably, by itself, not sufficient. So, you may want to enter into such an agreement. Of course, this means in the event of divorce or death, he will not be entitled to a community property interest in the house. However, if you die without children and while still married to him, he would inherit all your property unless you had a will that said otherwise.

Also, whether it is true that your husband will get it all at your death depends, given the sole title in your name, on whether you have any surviving children. If you have children and die without a will, and to the extent the house is community property, he would get one-half and your children would get one-half. However, if he agrees to transmute the property into your separate property, your children, if any, could take all at your death unless you write a will.

It sounds like you may need a transmutation agreement with respect to the house. You need to sit down with your husband and negotiate the terms under which he will give up any community property interest in the house. Let me know if you need my assistance drawing it up. This is probably also a good time to review your entire estate planning. You can e-mail me at [email protected].

Re: How can I protect my home/investment from law suits

I would concur with Mr. Whipple that the quitclaim deed signed by your husband could well suffice to give up his community property interest and make it your separate property, and, therefore, free from the claims of the "attack mode" ex-spouse. However, it would be a very good idea to have the deed examined by a lawyer to be dead certain it meets all california's statutory requirements for transmuting community property into separate property.

Re: How can I protect my home/investment from law suits

I am sorry, you said he "grant" deeded, not "quitclaimed". My last msg inadvertently had it reversed. A grant deed may be more questionable as sufficient than a quitclaim would have been. You really need to have it examined.

Re: How can I protect my home/investment from law suits

The entire transaction needs to be examined by a lawyer. If you are using "marital income", meaning income earned during the marriage, then half of that income is your husbands, which may mean that half of that his ex is entitled to. Also, you said that should you pre-decease your husband the house goes to him. Well, that statement is concerning because it sounds like the deed is as "joint tenants" meaning half is his. Please hire local counsel to review these documents. It is extremely difficult to provide answers without review of the documents. Thanks for inquiring.