If I bought my primary residence before I got married and have been paying the mortgage by myself, can my spouse claims half of it when we get divorced?

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If I bought my primary residence before I got married and have been paying the mortgage by myself, can my spouse claims half of it when we get divorced?

Asked on November 19, 2011 under Family Law, California

Answers:

S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

If you live in a community property state such as CA, community property is property acquired during marriage.  Each spouse has a one half interest in the community property.

Separate property is property acquired before marriage or after the marriage ends.  Your spouse has no claim to your separate property.  Since the house was purchased before marriage, it is your separate property.  However, if you are using community property funds (income earned during marriage) to pay the mortgage, your spouse would have a one half interest in those mortgage payments that were made during marriage with community property funds.  Your spouse could then claim a proportionate interest in the house based on one half of the mortgage payments made from community property funds.  Also, if improvements are made to the house during marriage, your spouse could claim half the value of those improvements made from community property funds.

If you are paying the mortgage from a separate property bank account, then the house would retain its separate property status and your spouse would not have any claim to the house. 


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