FAQ's - My Husband Owned Our Residence Before Marriage.
What Are My Rights?
Q. My husband owned our residence before marriage. What are my rights?
A. The very first question is: Are you on title?
If your husband owned the house before marriage, but added your name to
title during marriage for any reason (estate planning, refinances), then a
has occurred and the house is now community property, subject to a Family
Code section 2640 reimbursement to him for the equity he had in the property
as of the date of the transmutation.
Q. I am not on title. But we paid the mortgage for 13 years!
A. There is a very important concept under California Law involving what
is generally known as "Moore-Marsden apportionment." It applies
to a common situation where a home is acquired before marriage, title
is in the name of the acquiring spouse alone, and during the marriage
and up to separation or divorce filing the mortgage is paid down with
Where this occurs the community estate acquires a legal, reimbursable,
interest in what would be otherwise be entirely the separate property
of the titled spouse IF community funds (earnings of either spouse, for
instance, or both) are used to make the mortgage payments. The idea is
that joint funds are being used to benefit a separate property interest,
i.e., the separate property equity. Many legal scholars consider this
to be a breach of fiduciary duty - that whenever one or the other spouse's
separate property interests are increased with community funds, or community
time, skill, and efforts of either spouse during the marriage, the community
is disadvantaged and that this disadvantage violates the statutory duties
of the parties that place the party's joint interests above their
The formula for apportionment is that the community acquires a pro tanto
(dollar for dollar) interest in the ratio that principal payments on the
purchase price made with community property bear to payments made with
separate property. Hence, any increase in value (appreciation) must be
apportioned accordingly between the separate property and the community
property estates upon separation or dissolution.
Note that this only applies to separate property owned prior to marriage
with a mortgage that was paid during marriage where an equity position
has been increased. For instance, if a mortgage exists but it is an interest
only mortgage, payments during marriage do not reduce principal. Therefore,
the separate interest of the owner spouse is not improved because the
debt remains exactly the same. As a general rule, the amounts paid for
interest, taxes, and insurance on the house are disregarded since that
portion does not to contribute to the capital investment.
Also, it assumes that the mortgage was paid with joint (community) funds,
or that the funds used were so commingled that the "separatizer"
is unable to trace them to a separate property source (meaning they don't
have records showing where each payment was made or are unable to provide
a recapitalization of the source of the funds). If your husband reduced
the mortgage throughout the marriage but he did it with an account that
was his separate property then the community would not have this reimbursement right.
In your case, with a lengthy marriage and little owing, you have significant