Legal Question in Real Estate Law in California

Re: real estate

Doing something like this is complicated by the community-property laws. The house is likely community property, or even if acquired in joint tenanct or tenancy in common, there's probably a large built-up community interest in it. To the extent it's community property, there's no concept of "his equity" or "her half;" it's 100% "ours."

This doesn't mean you can't or shouldn't take some steps to protect yourself, especially if your husband is willing, even grudgingly, to cooperate, perhaps as the price of getting you to sign the refinance papers.

However, I don't think it's appropriate for a real estate lawyer who doesn't know you and doesn't know how you hold title to give you specific suggestions. My suggestion would be to get a free initial consultation with a nearby family-law attorney. One of the possibilities would be, in conjunction with the re-fi, to re-title the house from community property to joint tenancy or tenancy in common, or even to your separate property.

Also, there is a question in my mind as to how refinancing is "necessitated" by exhaustion of the equity in the house. Often, exhaustion of the equity would make refinancing impossible rather than necessary. Maybe there was a home equity line of credit that he went through, and a re-fi will give you better terms for paying off the balance by converting it all to a new first. This is, of course, a lousy time for refinancing and if pulling out the last dollar as a cash-out in the refinancing is a thought, don't do it.

Re: real estate

Doing something like this is complicated by the community-property laws. The house is likely community property, or even if acquired in joint tenanct or tenancy in common, there's probably a large built-up community interest in it. To the extent it's community property, there's no concept of "his equity" or "her half;" it's 100% "ours."

This doesn't mean you can't or shouldn't take some steps to protect yourself, especially if your husband is willing, even grudgingly, to cooperate, perhaps as the price of getting you to sign the refinance papers.

However, I don't think it's appropriate for a real estate lawyer who doesn't know you and doesn't know how you hold title to give you specific suggestions. My suggestion would be to get a free initial consultation with a nearby family-law attorney. One of the possibilities would be, in conjunction with the re-fi, to re-title the house from community property to joint tenancy or tenancy in common, or even to your separate property.

Also, there is a question in my mind as to how refinancing is "necessitated" by exhaustion of the equity in the house. Often, exhaustion of the equity would make refinancing impossible rather than necessary. Maybe there was a home equity line of credit that he went through, and a re-fi will give you better terms for paying off the balance by converting it all to a new first. This is, of course, a lousy time for refinancing and if pulling out the last dollar as a cash-out in the refinancing is a thought, don't do it.

Re: real estate

Your husband owes you a fiduciary duty to spend prudently. If he breached this duty, you would not be responsible for 1/2 of the debt he incurred or money he lost.

Unfortunately, there is no simple form you can fill out to remedy this situation. There are options, however, short of divorce or separation, like an agreement spefifying that some of your husband's separate property will now belong to you as your separate property, so that should he die or should you get divorced, you can be assured that property will belong to you.

Re: real estate

Only a contract.