Legal Question in Real Estate Law in California

Re: ''Tenants in Common''

First, the deed is strong evidence of how title is held, but not completely dispositive. It could be that a court would hold that your home is community property, notwithstanding the language on the recorded instrument.

The preferable way for unrelated persons (including a newly-divorced couple) to hold real property as co-owners is as tenants in common. That gets away from the automatic survivorship problem of joint tenancy and allows each co-owner to deal with his or her interest in the property by will or testamentary trust.

You should think about the outcome of this plan,upon your death. At that point, your heirs will co-own with each other AND with your ex or his heirs. Sounds like a legal hairball in the making. Why not just sell the property and divide the money now, before a court has to do it for the heirs?

Since you are getting divorced, the question arises whether either (or both) of you are represented by counsel in the dissolution proceeding, and if not, why not, since you seem to have some property (e.g. a paid-off home). One or the other of the family law attorneys could easily prepare a deed. In any case, the proper instrument would be an interspousal grant deed (pre-dissolution) from H&W as joint tenants to H&W as tenants in common.

You should have a tax advisor study your proposed deal to see whether it is better to do it before, as part of, or after your dissolution decree. There may be transfer, property and income tax consequences to consider.

Finally, if you are going to co-own property with an ex-spouse, you really, really need to have a very well-written contract covering the use of the property, the respective ownership shares, who gets the income and who pays the expenses, and so on....this is an area where litigation often arises. The signatures should be notarized.

I recommend involving an attorney in this matter, but you can probably find a pre-printed interspousal grant deed form at a stationer's.

Re: ''Tenants in Common''

One way to do this is to deed your half to yourself as a tenant in common, and record this deed. If you are planning to make a trust, perhaps your attorney can take care of both at the same time.