Family Residence

 How to Divide Real Property

There are several factors the court reviews in determining how to divide real property during the divorce: (1) when the property was purchased; (2) in whose name the real property is in; (3) if there was any transmutation; (4) whether or not the community paid down the mortgage during the marriage; (5) if the residence was refinanced during the marriage; (6) how the down payment was made; and (7) if the lender used any other assets to secure the mortgage on the real property.

If the real property was purchased before the marriage by one spouse and the spouses paid down the mortgage during the marriage with community funds, then the community has an interest in the real property. The amount of the community interest is determined on the Moore/Marsden formula. This formula applies when title to the property is in one person.

Refinancing the home during the marriage creates a greater community interest, because it gives the community a greater interest in the real property.

If the real property was purchased during the marriage, it is presumed to be community property even if it was placed in only one party’s name. The only exception to this is if the down payment was paid during the marriage with the separate property of one spouse.

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