What Happens to the Family Home in a Divorce?

"Mi casa es su casa." Those of us familiar with basic Spanish immediately recognize that this endearing greeting is typically made to welcome visitors upon entering Latin homes. This cultural expression of warmth basically translates to "My house is your house." In family law, however, this expression is filled with legal ramifications; typically, during the end days of a marriage where divorce seems likely. A family home carries with it the emotions of its inhabitants, their joys, sorrows, elations, and tragedies. For some, breaking the family home umbilical cord, as it were, is too difficult. For others, their entire success and achievement is tied into their family home as a symbol of how they have thrived.

"Who gets the family home?" "Will I keep my home?" "What can you do to protect my home?” and so on and so forth, are the typical statements and questions posed to us family law practitioners. Essentially, all of these questions are really asking, "How will my property be distributed?" Sometimes it is fairly easy to determine what will happen to the family home. For instance, where husband and wife have bought the property after marriage, as a married couple, and they are both on the paperwork (deed, and bank mortgage note), the general rule will be that the soon to be divorced couple will share a 50/50 interest in the family home. Moreover, whatever equity remains in the family home, will be shared equally.

At this time, I can hear you all snickering, "Equity? Is he serious? Has he not heard of the housing crisis, subprime loans, and painful ARMS (no not your upper extremities, but those pesky adjustable rate mortgages). Doesn't he know that I refinanced and pulled out so much from my home that there is nothing left?” All right, to all of you shaking your head about equity, I hear you. Let's just suppose, for the sake of this discussion, that there is still equity remaining, or that you were one of those intelligent people who did not build a Buckingham Palace style estate, but actually had a home within your budget, with a reasonable mortgage, and that you did not consider your family home to be an insatiable cash cow.

In other words, you have equity. Now, however, you wonder what is going to happen to that equity? We have already said that the case where you and your ex have purchased the home together, the call is fairly simple. But what if you purchased the home prior to marriage, on your own, and you are the only one on title? Your initial answer might be something to the effect, "Well duh, it’s mine, and mine alone. My ex cannot claim it. I am the one bought it many years before I even met him/her." Are you correct? Not necessarily. What if you are the partner in the marriage who has been told by your ex "Don't bother coming after my home. You are not on title and you have absolutely no right to it." Is your ex correct? Not really.

Family Law courts are courts of equity (fairness). They try and do things with that fundamental fairness concept in mind. Fairness can take into account the value the community (meaning husband and wife) have had in reducing the mortgage, even if the property was clearly purchased prior to marriage. There are interesting family law cases which give rise to complicated formulas used to access what your monetary interest in a home you never purchased might be, simply by virtue of the fact that a portion of the mortgage was paid during the time you and your husband/wife were married.

Therefore, simply not being on title, or not being on bank loan documents, should not necessarily dissuade you from thinking you do not have a right to a portion of the equity in the family home. This can be an important issue to consider particularly if there are monetary issues in your case, which will require negotiation and leverage on your part. It is certainly worth your while to present your case for the family home to an attorney before naively or innocently signing away your rights to something that may have monetary value to you. Rest assured that the person owning the property is most likely well aware of your rights (whatever they are letting on to you) as they have more to lose.

While your entitlement to the family home may not exactly turn into "my home is your home," it might turn into something akin to "your home is your home, however, don't forget about me." Should you be interested in discussing your individual situation, please do not hesitate to contact our offices to schedule a consultation with one of our Glendale divorce attorneys.