Legal Question in Real Estate Law in California
If a spouse bought a house months prior to getting married in California, does the other spouse have 50% ownership if they share in the mortgage payments? How does the spouse protect his interests if not on the deed?
2 Answers from Attorneys
The house is separate property, but the community acquires an interest in the property to the extent that community property is used to reduce principal.
No, not 50%. The not-on-title spouse will gradually acquire a so-called "pro tanto" interest when community funds are used to make principal payments. All wages and salaries of both spouses during marriage are community funds. However, the amount of a house payment that goes to principal during the early years of a typical mortgage (note and deed of trust) is so small that the pro-tanto interest is minuscule for the first few years, assuming there was a significant down payment.
Family law attorneys who do lots of dissolution of marriage work have specialized software that is used (among other purposes) to calculate pro-tanto ownership percentages. I believe it is called "Dissomaster" or something like that.
If a married couple wants a different result than produced by operation of law, they can always use a quitclaim deed or similar instruments to alter their ownership percentages from what happens in the ordinary course of paying a mortgage. Such deeds should be lawyer-prepared and recorded.
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