Legal Question in Real Estate Law in California

Re: Real Estate

Are you divorcing him for a reason, or simply because your name is not on the deed? Your name is not on the deed because your husband's time machine did not work. In other words, he got a deed to the property before he married you, and could not have received title in community property if you were not married at the time. I hate to burst your bubble, but property acquired before marriage is separate property of that spouse. Any loan payments that were made during the marriage would create a community property interest in the property, assuming that they were paid with community funds, according to the analysis provided by Mr. Whipple. The loan documents refer to him as a single man because that is how he holds title to his separate property.

From your post, you sound like a harpy. You apparently married him with the assumption that all of his property is now yours. If this is true, then shame on you.

Very truly yours,

Re: Real Estate

The new loan and associated documents do not in themselves have any effect on title or ownership. The mention of the owner/borrower as an unmarried man may reflect a moderate fraud or deception on his part (the loan he refinanced probably accurately referred to him as an unmarried man), or simply be an inconsequential mistake on the part of the lender or escrow company. In any event, calling yourself a single man does not make you a single man.

The real issue here is whether you have any claim on the property. I'd say you have a claim, but it's very small. Here's some detail:

Property that someone owns before they marry remains their separate property and does not become community property by virtue of the marriage, unless:

1) an interest is given to the other spouse or to the community as a gift;

2) an interest is transferred by an instrument such as a quitclaim deed;

3) the separate property is commingled with community property or the other spouse's separate property so thoroughly that it cannot be traced by accurate records back to its separate-property roots - this may happen when the spouses put money from various sources in a checking account, or invest in a business, etc.

It also happens when community property funds, for example, the earnings of either spouse during marriage, are used to pay the equity portion of a mortgage on one spouse's otherwise separate real-estate property. This creates a so-called 'pro tsnto' community interest in the previously separate property.

There are complicated formulas that a divorce lawyer will have software to apply to the numbers to determine your fractional interest in his house.

Since your marriage is so far very brief, and because most young mortgages are "95% interest, 5% principal" (or worse), the community pro-tanto interest is likely to be very small.

So the bottom line is that the lies on the loan application won't do you much good, but you may be entitled to a sliver of an interest in the house based upon the use of earnings of either of you during marriage to pay principal.

Keep all of this in mind if and when you see a family law attorney in your area; he or she should be asked to confirm these views, which involve law that's more in the area of family law than real estate law.