How to Retain Sole Ownership of Your Home After Marriage
You are getting married, and you own a home that you purchased previous to your marriage. Like many individuals, you may want to keep your home “yours,” rather than financially share it with your spouse, so that you can more easily leave it to your children. Owning separate property before marriage and trying to keep it separate after marriage can become very complicated in a hurry. To make it work, often times you’ll need a prenuptial or postnuptial agreement. Here’s why.
California is a community property state, which means that the earned income either spouse earns during their marriage belongs 50% to the other spouse, unless the couple has agreed differently in writing. Income includes: wages, stock options, pensions and other employment compensation and business profits. Everything that is purchased with income earned after marriage is considered community property.
So, if you pay down a mortgage on your pre-marriage, separate property home with the income you earn during your marriage (your income is community property), a portion of your home will be owned by your spouse. See Marriage of Moore (1980) 618 P.2d 2018. In addition, if your home increases in value over the years (which is very likely in the state of California), your spouse will be entitled to 50% of the home’s increased value. See Marriage of Marsden (1982) 130 Cal.App.3d 366. This is what is known as a Moore/Marsden credit.
As a partial owner of your home, your spouse can independently decide to take out a loan on your home, remodel it, or even sell it. If your spouse has children from a previous marriage, you may become co-owners with them, should your spouse pre-decease you. Lastly, your children may not be the sole owners of your home, when you die.
Yes, it gets complicated.
How to remedy this situation?
Get a prenuptial or postnuptial agreement – You can indicate in a prenuptial or postnuptial agreement that you want to treat your home as a solely owned asset throughout your marriage, even if your income is used to pay down a mortgage. A prenuptial agreement is intended to protect the assets you have prior to a marriage. It is a contract that describes the ownership and distribution of assets and debts, spousal support, community contributions to separate property and other financial matters. A postnuptial agreement is similar to a prenuptial agreement, but it is created after the couple has married.
If you are getting married, own property, and would like to discuss your specific situation, please contact our office for a consultation. If you desire a prenuptial or postnuptial agreement, I can draft an appropriate document.
Attorney Christina Sherman is a Marin County CA family law attorney and Certified Family Law Specialist, specializing in divorce, child custody and support, marital contracts and other family law issues.
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