Solving Complex Family Law Issues with Creative Strategies

How to Protect Your Home During a Divorce

Ending a marriage is a difficult decision. If you love your home and wish to keep it, the fact that California’s community property laws require a 50/50 division of marital assets can be a big concern. Whether your reasons are pragmatic—such as affordability, close proximity to work, or access to community schools and other resources—or you wish to retain the family home for sentimental reasons or to maintain a sense of security for your children, protecting your home during a divorce in California may be at the top of your priority list.

A common question in California divorces is “How do I protect my home?”

How California’s Community Property Laws Affect Your Home

California is a community property divorce state. This means the law requires as close to a 50/50 division of marital property as possible during a divorce. Any bank accounts, investment accounts, or real estate property—including the family home—are subject to division during a divorce in California. A home is often the asset of the most significant value in a divorce. Unless it was purchased by one spouse before the marriage or inherited by one spouse before or during the marriage, a family home is subject to division during a divorce in California. In fact, even if either of the above is true, a home may become community property if the other spouse invests significantly in the home or makes improvements to it through their time and/or money.

What this means for most divorcing couples, is the home is marital property subject to division unless it was completely paid for or inherited by one spouse and the other spouse did not invest time or money into the home.

Protecting Your Home Before the Marriage

If you’ve purchased or inherited a home and it’s important to you to retain ownership of the home as a separate property, the best way to protect the home is to protect it before your marriage through a prenuptial agreement. In most cases, an agreement includes a form of compensation to the other spouse in the event of a divorce in exchange for full ownership of the home.

While some couples still feel that asking a loved one to sign a prenuptial agreement before the divorce means they don’t believe the marriage will last, it’s best to think of this as a type of insurance for the worst-case scenario. Prenuptial agreements are more popular than ever, with as many as 15% of California couples signing an agreement before marriage in 2022—up from only 3% in 2012.

Strategies for Retaining the Family Home During a California Divorce

Even if the home is community property under California’s laws, it’s still possible for one spouse to retain the home in some circumstances, providing that the other spouse is willing to compromise or is legally compelled to do so. Some strategies a spouse can use to protect their family home include:

  • Forming their own agreement for one spouse to retain the home while the other takes possession of something of equal value
  • Agreeing for one spouse to buy out the other spouse’s interest in the home
  • Agreeing to defer the sale of the home until the children are older while one spouse remains living in the home
  • Using your other separate assets to offset your spouse’s share of the home’s equity, including cash, a vacation home, a rental property, a retirement account, vehicles, or a reduction in spousal support payments

Any of the above methods of retaining the family home must be approved by the judge during the final divorce hearing and included in the decree. If a couple is unable to come to an agreement, the judge will decide the matter and may order the spouses to sell the home and divide the profit 50/50.

If you’re facing a divorce in California and wish to retain your home, speak to an experienced San Francisco divorce attorney.