Video Transcript: What does a judge consider when dividing marital property?
Dan Couvrette: I’m Dan Couvrette the publisher of Family Lawyer Magazine and divorcemag.com and today I have the pleasure of speaking with California family lawyer Michael Sarris.
What does a judge consider when dividing marital property?
So, everything that was acquired during marriage from the time, skill, and effort of one spouse belongs to both. So, the time element is very helpful here because you must see when the property was acquired. If the property was acquired before marriage and is fully paid, that’s separate property.
If you bring in your marriage a house, and it’s got no mortgage, that’s your house. It’s always going to be your house. Even if you get a loan on the house after that is not the loan you used to purchase the property because it was paid off by the time you got married.
So that will always be separate property. If your parents give you a house and it’s fully paid during marriage, that’s a gift. That’s not from your time, skill, and effort. And so, time matters, and the source of the funds to acquire the property matters.
Title doesn’t necessarily matter. So, if during marriage, if I buy a house and I put it on my name alone, and I say, it’s my own separate property that doesn’t make it a separate property because it was bought during marriage and it was bought with money that I earned during my marriage.
So, that will be a community property so title will not prevail. Also, another element is I get married, I have a house it’s fully paid and three years into the marriage I decide to add my wife on title. Well, I am now transmuting title from separate property to community property.
That house belongs to both. However, the equity on the date that I changed title to both of us belongs to me. It’s still my separate property unless I waive that separate property interest, which we very rarely see happening. So, if on the date I added my wife to title during marriage, the house had equity of 500,000 and later, when we divorce, the equity is 2 million.
Yes, the house belongs to both. We sell it, we get 2 million, I’m going to get the first half, that’s my separate property, and then we’re going to split 1.5. I get another 750, I’m at 1.25 because I never waived my separate property interest unless I did in writing, which most people don’t.