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Articles Posted in Division of Property

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In California, one of the most common questions that arises when it comes to divorce is, who gets the house? When couples divorce, they often tie deciding who gets to house to child custody, financial arrangements, and negotiations for other marital property. So if the ex-spouses do not agree, things can escalate quickly. And so can the legal bills.

If you and your ex-spouse are trying to decide what to do with your family home, here are some money-saving tips to consider:

Tip #1: Figure Out Who Owns What

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In a divorce proceeding, Family Code 2104 tells us what each party must disclose to the other party in order to advance the divorce case to a settlement conference or a trial:

(1) Each party shall serve on the other party a preliminary declaration of disclosure, executed under penalty of perjury on a form prescribed by the Judicial Council.  The commission of perjury on the preliminary declaration of disclosure may be grounds for setting aside the judgment, or any part or parts thereof, pursuant to Chapter 10 (commencing with Section 2120 ), in addition to any and all other remedies, civil or criminal, that otherwise are available under law for the commission of perjury.  The preliminary declaration of disclosure shall include all tax returns filed by the declarant within the two years prior to the date that the party served the declaration.

(2) The preliminary declaration of disclosure shall not be filed with the court, except on court order.  However, the parties shall file proof of service of the preliminary declaration of disclosure with the court.
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Under California law, any property obtained during a marriage is presumed to be community property. The California Family Code allows for parties to change community property to separate property in certain circumstances, however.

Recently, an appeals court in California held that an interspousal transfer grant deed contained the necessary language to constitute a transmutation of the character of marital property. If you intend to seek a divorce, you should meet with an experienced California divorce attorney to assess the nature of any property obtained by you or your spouse during the marriage.

Ownership of the Property in Question

The husband and wife married one another in January 2010. In May 2010, the wife reportedly purchased a condo. The deed from the seller allegedly transferred the condo to the wife as “a married woman as her sole and separate property.” That same month, the husband signed an interspousal transfer grant deed (ITGD) granting the condo to the wife as her sole and separate property. The money used for the down payment on the condo was from the husband’s separate bank account. The husband filed for divorce in August 2011. The wife claimed the condo was her separate property based on the ITGD. The husband insisted the condo should be his separate property, however, because he paid for the down payment.

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