Is the down payment of a home considered equal property in a divorce? 7 Answers as of May 16, 2011

In 1993, my wife and I weren't married and purchased a house together. She put in the $30K down payment. We got married in 1996. I've paid the mortgage the majority of the time during the marriage. Now we're getting divorced. My wife wants to know if the $30K she put in counts as something that was hers before the marriage and should still be hers. I'm thinking it's equal property because it was put into the house, which is mutual.

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Michael Rose Attorney at Law
Michael Rose Attorney at Law | Michael Rose
Real property division can be a complex issue. Think of it this way, her $30k down payment was what helped purchased the house and it increased in value along with the house. Did you have anything to do with the $30k? Get an attorney or you will lose what could have been yours. Many people make this mistake. There could be other assets that can be divided do you know what they are??
Answer Applies to: California
Replied: 5/16/2011
Law Office of Curry & Westgate
Law Office of Curry & Westgate | Patrick Curry
No her down payment is considered her separate property and reimbursable first.
Answer Applies to: California
Replied: 5/16/2011
The English Law Firm
The English Law Firm | Robert English
The outcomes might vary on this, but generally a separate property contribution by your wife prior to the marriage would likely be her separate property.
Answer Applies to: California
Replied: 5/16/2011
Michael Apicella
Michael Apicella | Apicella Law and Mediation
The down payment before marriage is separate property. Based on the limited facts you stated, there is likely both a separate and community property component of the house. However, other facts are needed to do a full analysis to determine each parties respective share (both community and separate). Unless the two of you took out further debt against the house, I'm assuming there is equity to split. If so, one party can either buy out the other party's community and separate share, or sell the house and divide the separate and community portion of the sale proceeds. It would be wise to call a local family law lawyer to help you with this house division issue, and perhaps your other divorce issues as well. Good luck!
Answer Applies to: California
Replied: 5/13/2011
Warner Center Law Offices of Donald F. Conviser
Warner Center Law Offices of Donald F. Conviser | Donald F. Conviser
Your wife is correct. Assuming that her down payment is traceable to a separate property source (i.e., premarital funds of hers), Family Code Section 2640 provides that she is entitled to reimbursement from the house equity (or from the first sales proceeds of the house sale) before the balance is divided 50/50. Your payments on the mortgage were made with your earnings, which is community property, so the fact that you made those payments is immaterial to your wife's Section 2640 reimbursement.
Answer Applies to: California
Replied: 5/13/2011
    Law Office of L. Paul Zahn
    Law Office of L. Paul Zahn | Paul Zahn
    The situation you describe suggests to me that the down payment was your wife's separate property. You cannot accumulate community property until you are married. Another issue is what is the characterization of the property (is it separate property of one of you or of both jointly). I strongly recommend using an attorney to assist you in this matter. If you are in my area, please contact me for a free consultation.
    Answer Applies to: California
    Replied: 5/13/2011
    Law Office of Joseph A. Katz
    Law Office of Joseph A. Katz | Joseph A. Katz
    It is a debatable point. Generally, your now-wife can try to trace her separate property payment and claim the right to reimbursement for those funds. The issue is somewhat subject to the principles of equity, though. A Court might consider how many years you have lived together in the house and the fact that you have been paying the mortgage all that time.
    Answer Applies to: California
    Replied: 5/13/2011
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