Author Topic: Buying house with houswife  (Read 12149 times)

alex1176

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Buying house with houswife
« on: March 21, 2014, 10:00:24 AM »
Hello ladies and gentlemen,
I have kind of complicated situation and I hope that you will be able to help me with advise.
The state is California.

I am the only earner and have an excellent credit score. My income is sufficient to qualify for a mortgage.
My wife is a housewife and her credit is bad.

I want to buy a house without her having any rights in it after divorce. Also, I want her having no rights to bring and allow other people to live in the house against my will (her brother, for example).
How can I do it, and is it possible in California?

Thank you

Gin1984

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Re: Buying house with houswife
« Reply #1 on: March 21, 2014, 10:06:21 AM »
Hello ladies and gentlemen,
I have kind of complicated situation and I hope that you will be able to help me with advise.
The state is California.

I am the only earner and have an excellent credit score. My income is sufficient to qualify for a mortgage.
My wife is a housewife and her credit is bad.

I want to buy a house without her having any rights in it after divorce. Also, I want her having no rights to bring and allow other people to live in the house against my will (her brother, for example).
How can I do it, and is it possible in California?

Thank you
I am not a lawyer but I don't think you can do that in California.  It is a joint property state, the income and assets earned in marriage are marital property and belong to both parties.

CommonCents

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Re: Buying house with houswife
« Reply #2 on: March 21, 2014, 10:12:33 AM »
Are you buying with marital income or property?  Then you probably can't do it.  If you can do it, it would likely require a valid post-nup.  But a lawyer from Cali should chime in here. 

It also seems pretty...cold and callous to get the benefit of her staying home and looking after you and the house, without equally sharing in the financial rewards of your job.  If you have the "mine" attitude, it's probably better if you 1) encourage her to get a job so she's not screwed if you walk out the door, and/or 2) consider the divorce sooner rather than later so you can both start fresh.

May I suggest you instead address the issue with her that she'd have guests you don't want in the home?  That seems the root of the problem and contracting around rather than discussing (counseling?) doesn't really solve the underlying issue in your marriage.

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Re: Buying house with houswife
« Reply #3 on: March 21, 2014, 10:20:06 AM »

May I suggest you instead address the issue with her that she'd have guests you don't want in the home?  That seems the root of the problem and contracting around rather than discussing (counseling?) doesn't really solve the underlying issue in your marriage.

i agree with commoncents about addressing your marriage issues, maybe through counselling, rather than trying to use legal protection to cope with them. unless you are in the process of a divorce, which it almost sounds like you are from your post or as though you are considering.

alex1176

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Re: Buying house with houswife
« Reply #4 on: March 21, 2014, 10:27:20 AM »
Thank you for the reply.
We had a very bad incident before when one of her very close relatives came into our rented house and made very heavy emotional pressure on her to prevent me to kick him out legally. At that time I just left the house, stopped paying the rent and they left for not being evicted.
Now we live together again after she promised that it will never happen again.
At that time I lost few grands as a payment to the landlord, as he is absolutely doesn't need to suffer because our family issues.
If I buy a house and this situation will come back, I will loose much much more including me credit score, and I cannot afford it.
So, I'm trying to find a way to prevent it in advance.
Thank you.

Cpa Cat

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Re: Buying house with houswife
« Reply #5 on: March 21, 2014, 10:50:52 AM »
You're pretty much out of luck. The state of California has a history of disregarding prenups and postnups. Even if you got her to contractually agree to this, it would immediately be thrown out in a CA divorce court.

The only way to protect yourself would be to divorce her and then buy the house. But you're in CA... so you'll just pay alimony instead.

So your best option is probably to tell her to get an education and/or a job. That way she can contribute financially and establish an earning history to protect you from alimony.

Christiana

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Re: Buying house with houswife
« Reply #6 on: March 21, 2014, 12:03:31 PM »
Obviously, it would be wise to work out the marriage issues, through marriage counseling, before buying a house.

More practically, don't buy a house with enough room for stray in-laws to move in, unless you're willing to live with the possibility. 

We had a spare bedroom when I was growing up--my uncle came for a while, and stayed for 20 years.  My mom finally kicked him out.

DoubleDown

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Re: Buying house with houswife
« Reply #7 on: March 21, 2014, 01:30:14 PM »
I want to buy a house without her having any rights in it after divorce. Also, I want her having no rights to bring and allow other people to live in the house against my will (her brother, for example).

CommonCents has given great advice.

I agree with other posters that you are not likely to be able to exclude your wife from ownership rights to the house in a divorce. Even if you got an ironclad postnuptial agreement that she has reviewed with her own attorney and signed, and even if you could somehow purchase it with purely separate funds of your own, how would you continue to maintain it and pay for it other than with martial funds (i.e., your paycheck)? Also, the law generally considers assets attained during a marriage (including appreciation of the asset) to be joint assets, and that is reasonable and fair when you think about it. She should not be left destitute, she has a valid claim to any gains made during the marriage.

For your second point about keeping family members out, that's pretty simple: Don't allow them to move in. If they attempt to move in or overstay their welcome, put them out. Put their stuff out on the front lawn, tell them to leave, and lock the door. If they attempt to come in, or refuse to leave, call the police. If your wife is obstructing you in this, then you know your marriage has run its course. File for divorce immediately, and ask the court in your divorce complaint to get the unwelcome family members out immediately. You need to act promptly; once they've "moved in" or established residence there, they have certain rights about not being evicted without proper notice, and so on. Don't allow them to become residents. It goes back to the old advice that "no one can take advantage of you unless you let them."

alex1176

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Re: Buying house with houswife
« Reply #8 on: March 21, 2014, 02:09:47 PM »
I want to buy a house without her having any rights in it after divorce. Also, I want her having no rights to bring and allow other people to live in the house against my will (her brother, for example).



For your second point about keeping family members out, that's pretty simple: Don't allow them to move in. If they attempt to move in or overstay their welcome, put them out. Put their stuff out on the front lawn, tell them to leave, and lock the door. If they attempt to come in, or refuse to leave, call the police. If your wife is obstructing you in this, then you know your marriage has run its course. File for divorce immediately, and ask the court in your divorce complaint to get the unwelcome family members out immediately. You need to act promptly; once they've "moved in" or established residence there, they have certain rights about not being evicted without proper notice, and so on. Don't allow them to become residents. It goes back to the old advice that "no one can take advantage of you unless you let them."
And in this case I'm loosing the down payment and my credit score, as nobody can kick out somebody that my wife (second owner) allows to stay.

CommonCents

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Re: Buying house with houswife
« Reply #9 on: March 21, 2014, 02:28:54 PM »
I want to buy a house without her having any rights in it after divorce. Also, I want her having no rights to bring and allow other people to live in the house against my will (her brother, for example).



For your second point about keeping family members out, that's pretty simple: Don't allow them to move in. If they attempt to move in or overstay their welcome, put them out. Put their stuff out on the front lawn, tell them to leave, and lock the door. If they attempt to come in, or refuse to leave, call the police. If your wife is obstructing you in this, then you know your marriage has run its course. File for divorce immediately, and ask the court in your divorce complaint to get the unwelcome family members out immediately. You need to act promptly; once they've "moved in" or established residence there, they have certain rights about not being evicted without proper notice, and so on. Don't allow them to become residents. It goes back to the old advice that "no one can take advantage of you unless you let them."
And in this case I'm loosing the down payment and my credit score, as nobody can kick out somebody that my wife (second owner) allows to stay.

Thats why DoubleDown suggests filing for divorce immediately and asking the court to evict them.

Also, you aren't losing the down payment and credit score.  Yes, the property would be split up in a divorce, but so would the money have been.  You only lose the credit score if you fail to make agreed upon payments, which has nothing to do with anything discussed above.  I would suggest that you don't fail to do that.  (For the record, the courts in my state require you to support your spouse - they don't like one spouse who is capable of supporting a spouse just walking away from their responsibilities, which generally lands the other on state aid.  In fact, in my state, in that situation a spouse might be able to file for support.  So I wouldn't recommend that you repeat the situation above where you walked out and left your wife in an apartment without sufficient funds to maintain herself.)

LadyMuMu

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Re: Buying house with houswife
« Reply #10 on: March 21, 2014, 03:04:15 PM »
This question is appalling. But since it is asked in good faith, here's an honest answer: you should not buy property until your marriage is on better footing or ended. Only other option is to NEVER allow anyone to spend the night in your home for any reason.

warbirds

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Re: Buying house with houswife
« Reply #11 on: March 22, 2014, 02:21:37 PM »
She sounds like one lucky girl!

CanuckExpat

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Re: Buying house with houswife
« Reply #12 on: March 23, 2014, 01:16:26 AM »
This sounds like a troll, but anyways.. I assume if you really wanted to do this, you could work something out with a trust. There would be fees and lawyers involved, but where there is a will there is a way..

alex1176

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Re: Buying house with houswife
« Reply #13 on: March 23, 2014, 09:01:26 AM »
Thank you all for your replies. I guess I will speak to a lawyer.

Daleth

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Re: Buying house with houswife
« Reply #14 on: March 29, 2014, 12:59:34 PM »
This sounds like a troll, but anyways.. I assume if you really wanted to do this, you could work something out with a trust. There would be fees and lawyers involved, but where there is a will there is a way..

Not in a community property state, I'm guessing. Any money placed in the trust would be marital assets, to which she has a right, unless it's money he alone earned prior to the marriage--but I doubt he has several hundred grand that he can prove he earned before the marriage sitting in an account somewhere. And banks typically do not make mortgages to trusts to buy homes; they make mortgages to people. Putting the house in the name of a trust after you buy it would (1) possibly be a breach of the mortgage, (2) incur hefty transfer taxes and (3) not keep the wife from having rights in it, because she gets rights in it the second her husband buys it no matter what he does with it later.

Personally I don't understand why people with such immense trust issues and such an unwillingness to support each other are even married at all. To the OP: if you're married, the law will treat you like you're married--so either accept that, or divorce her.

Cassie

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Re: Buying house with houswife
« Reply #15 on: March 29, 2014, 01:49:45 PM »
If you can get her to sign a quit claim deed immediately after closing the house then she would not be entitled to half of the house even in a community property state. 

arebelspy

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Re: Buying house with houswife
« Reply #16 on: March 29, 2014, 05:41:08 PM »
If you can get her to sign a quit claim deed immediately after closing the house then she would not be entitled to half of the house even in a community property state.

Yeah, that's not true.
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James

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Re: Buying house with houswife
« Reply #17 on: March 29, 2014, 05:47:56 PM »
I would suggest not purchasing a house in your situation, problem solved.

Daleth

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Re: Buying house with houswife
« Reply #18 on: March 29, 2014, 07:16:07 PM »
If you can get her to sign a quit claim deed immediately after closing the house then she would not be entitled to half of the house even in a community property state.

Yeah, that's not true.

Right you are, RebelSpy. The quitclaim advice is garbage. Anything either spouse buys during the marriage belongs to both spouses, except in the highly unusual case that the purchasing spouse uses entirely pre-marriage money to buy it, and can prove that.

Cassie

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Re: Buying house with houswife
« Reply #19 on: March 29, 2014, 10:40:42 PM »
It is interesting that in Nevada I know 2 people that did that & gave away their right to the house.

arebelspy

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Re: Buying house with houswife
« Reply #20 on: March 29, 2014, 10:53:50 PM »
It is interesting that in Nevada I know 2 people that did that & gave away their right to the house.

They are not on title after the quitclaim. They still have claim to the house in the divorce proceedings.

Just like if one member bought a 80k car, was the only one on title of the car, the other spouse would still have a claim to half of it.
« Last Edit: March 30, 2014, 09:25:22 AM by arebelspy »
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Daleth

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Re: Buying house with houswife
« Reply #21 on: March 30, 2014, 09:13:14 AM »
It is interesting that in Nevada I know 2 people that did that & gave away their right to the house.

They are not on title tater the quitclaim. They still have claim to the house in the divorce proceedings.

Just like if one member bought a 80k car, was the only one on title of the car, the other spouse would still have a claim to half of it.

Right. This is what some people on this thread don't seem to understand: being on title is one way of having a claim to property. However, being married to the person who is on title is another way. If you get divorced, especially in a community property state, the court could not care less whose name is on title. All they care about is whether you bought the property after the marriage (or whether you made payments on the property--such as mortgage payments--with money earned after the marriage).

So OP, if you distrust your wife this much, you need to either divorce her or forget about buying a house.

Cassie

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Re: Buying house with houswife
« Reply #22 on: March 30, 2014, 05:42:12 PM »
Okay, I have a friend that is a lawyer so called her up because the opinions are so conflicting. It turns out everyone is somewhat right. If you can prove that the $ for the house came from you strictly & was not mixed marital funds then the amount of $ you put down on the house would be yours. For example you bought it with $ that was yours alone before the marriage. However, you would only get your down payment back and then the rest is considered joint property and would be split. If you paid cash for the house & can show with bank records it was yours alone before getting married then it would be yours.   

arebelspy

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Re: Buying house with houswife
« Reply #23 on: March 30, 2014, 05:59:22 PM »
Okay, I have a friend that is a lawyer so called her up because the opinions are so conflicting. It turns out everyone is somewhat right. If you can prove that the $ for the house came from you strictly & was not mixed marital funds then the amount of $ you put down on the house would be yours. For example you bought it with $ that was yours alone before the marriage. However, you would only get your down payment back and then the rest is considered joint property and would be split. If you paid cash for the house & can show with bank records it was yours alone before getting married then it would be yours.

Yah, that's not true either, unless you have a prenup.  Call your friend again.
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Cassie

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Re: Buying house with houswife
« Reply #24 on: March 30, 2014, 09:40:40 PM »
Unless you are a lawyer in this area of expertise like my friend is this is correct!  By the way you are a teacher.  Anyways to the poster please consult a lawyer in your state.

arebelspy

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Re: Buying house with houswife
« Reply #25 on: March 30, 2014, 09:54:59 PM »
Surprised you're still this confident after being wrong multiple times in this thread.  A little humility would go a long way.  You might find out you could learn something, even from someone who is just a teacher.

Regardless, assets become joint when entering a marriage.  Even funds earned ahead of time.  If I own a house myself, get married, then divorced a decade later, you think the spouse has no claim to that house? 

They do. 

Ditto a house purchased after marriage with funds acquired before the marriage.

Unless, like I said, a prenup is in place, and it will depend on the details of that prenup.

Regardless, you finally got something correct:
Anyways to the poster please consult a lawyer in your state.

Absolutely.  Don't listen to any random person on the internet, myself included, or even a lawyer.  Consult your own lawyer for all legal matters.
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Cassie

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Re: Buying house with houswife
« Reply #26 on: March 30, 2014, 10:01:58 PM »
so a teacher is right when a lawyer in this area of expertise is wrong?  I don't think so!

arebelspy

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Re: Buying house with houswife
« Reply #27 on: March 30, 2014, 10:03:33 PM »
so a teacher is right when a lawyer in this area of expertise is wrong?  I don't think so!

As I said, call your friend again.

If I had to guess I'd say the most likely scenario is you inadequately explained it to your friend.
We are two former teachers who accumulated a bunch of real estate, retired at 29, spent some time traveling the world full time and are now settled with three kids.
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Cassie

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Re: Buying house with houswife
« Reply #28 on: March 30, 2014, 10:04:56 PM »
BTW: you are not reading: it is called Trace Law. If you can trace your $ before the marriage it is yours alone. Either the down payment or full payment of whatever is yours if you have the records to trace it regardless of a pre-nup.

kkbmustang

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Re: Buying house with houswife
« Reply #29 on: March 30, 2014, 10:11:21 PM »
Surprised you're still this confident after being wrong multiple times in this thread.  A little humility would go a long way.  You might find out you could learn something, even from someone who is just a teacher.

Regardless, assets become joint when entering a marriage.  Even funds earned ahead of time.  If I own a house myself, get married, then divorced a decade later, you think the spouse has no claim to that house? 

They do. 

Ditto a house purchased after marriage with funds acquired before the marriage.

Unless, like I said, a prenup is in place, and it will depend on the details of that prenup.

Regardless, you finally got something correct:
Anyways to the poster please consult a lawyer in your state.

Absolutely.  Don't listen to any random person on the internet, myself included, or even a lawyer.  Consult your own lawyer for all legal matters.

Lawyer living in a community property state here. Got an A in Texas Matrimonial Property, if you're interested, and licensed by the State Bar of Texas.

The separate property used as a down payment on the house used during the marriage will be presumed to be comingled with the marital property, including any increase in value of the house during the marriage. This presumption can get rebutted by prenup or by strict tracing of funds. However, IIRC the burden of proof on the tracing lies with the separate property claimant and it is a high burden of proof. For all intents and purposes, prenup is the only surefire way to go.

@Cassie - ARebelSpy is an incredibly smart man and, from my point of view, has a lot of patience.
« Last Edit: March 30, 2014, 10:14:36 PM by kkbmustang »

Cassie

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Re: Buying house with houswife
« Reply #30 on: March 30, 2014, 10:15:38 PM »
exactly- if someone has consulted a lawyer before doing this they will make sure it is traceable if do not have pre-nup or if they paid the mortgage in full. I actually know 2 people that did this & it held in a divorce.

arebelspy

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Re: Buying house with houswife
« Reply #31 on: March 30, 2014, 10:18:44 PM »
BTW: you are not reading: it is called Trace Law. If you can trace your $ before the marriage it is yours alone. Either the down payment or full payment of whatever is yours if you have the records to trace it regardless of a pre-nup.

Yes, I follow. Reread the OP's scenario.  They are the single earner.  The wife is a housewife.  They are getting a mortgage, cannot pay cash.  Even if just gotten in the husband's name, mortgage payments will be made from his income.  She has a claim to some of that income, and will certainly have a claim to the house, even if he is the only one on title (via quitclaim or taking title in his own name) and the sole one on the mortgage.

As you state, the OP can - at best - get their down payment back, if they haven't yet commingled funds.

It will also matter if they are in an equitable distribution state or community property state.

And again:
Don't listen to any random person on the internet, myself included, or even a lawyer.  Consult your own lawyer for all legal matters.

EDIT: kkb (which autocorrect wanted to make KGB) chimed in while I was typing.  Thanks for the clarification!  Absolutely agree with your last post Cassie, it's something to plan for ahead of time, because your choices afterwards are quite limited.  If you're tracing assets before marriage though, but not getting a prenup... seems odd to me.  And preparing for a divorce before being married doesn't portend well, to me.
« Last Edit: March 30, 2014, 10:21:39 PM by arebelspy »
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Cassie

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Re: Buying house with houswife
« Reply #32 on: March 30, 2014, 10:20:49 PM »
yes, if it is community property & he can show his down is before the marriage that will be his alone.

kkbmustang

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Re: Buying house with houswife
« Reply #33 on: March 30, 2014, 10:22:12 PM »
No problem. *puts on black glasses and slithers away*

Cassie

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Re: Buying house with houswife
« Reply #34 on: March 30, 2014, 10:24:04 PM »
More then one person on this forum actually has a brain-how dare anyone speak their opinion?

kkbmustang

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Re: Buying house with houswife
« Reply #35 on: March 30, 2014, 10:24:17 PM »
yes, if it is community property & he can show his down is before the marriage that will be his alone.

It's a little bit more involved, with the burden of proof lying on his shoulders. Tracing isn't necessarily as simple as making a copy of a bank statement. It has to be traced back to its original source and put in context.

Cassie

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Re: Buying house with houswife
« Reply #36 on: March 30, 2014, 10:27:18 PM »
I realize that- I have a Ph.D and have many educated friends. Plus I do not come from a family of snobs-my parents were blue collar workers who helped us achieve beyond what they were able to do because of money.

Gin1984

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Re: Buying house with houswife
« Reply #37 on: March 30, 2014, 10:36:11 PM »
BTW: you are not reading: it is called Trace Law. If you can trace your $ before the marriage it is yours alone. Either the down payment or full payment of whatever is yours if you have the records to trace it regardless of a pre-nup.
Not in California, in California a cent of martial money that goes into the pre-martial asset and it is 100% martial assets. 

Cassie

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Re: Buying house with houswife
« Reply #38 on: March 30, 2014, 10:37:34 PM »
Community property is community property-I doubt that CA is special.

Gin1984

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Re: Buying house with houswife
« Reply #39 on: March 30, 2014, 10:39:40 PM »
Community property is community property-I doubt that CA is special.
I was married in California and I have consulted a lawyer on this prior to getting married.  And, yes, states have different laws.

Cassie

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Re: Buying house with houswife
« Reply #40 on: March 30, 2014, 10:47:34 PM »
please read all the posts because you are missing some of the earlier discussion. There are other exceptions beyond a pre-nup that trump community property per my lawyer. 

dragoncar

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Re: Buying house with houswife
« Reply #41 on: March 30, 2014, 10:58:07 PM »
Community property is community property-I doubt that CA is special.
I was married in California and I have consulted a lawyer on this prior to getting married.  And, yes, states have different laws.

Yeah, community property is like English common law in that each state inherited a body of law many years ago but since then has made it's own statutory and case law that can and does diverge from other states.

Cassie, I've noticed a trend from your postings wherein you assert, as unassailable fact, things that you've heard second or third hand.  This is a particular pet peeve of mine (e.g., many schoolyard arguments over whether eating Pop-Rocks with Coke makes your stomach explode, with much anecdotal evidence pointing to yes).  You may find that people on this board tend to require a higher standard of evidence, and don't much go for appeal to authority (although I'm more likely to find a first-hand source like kkbmustang more pursuasive than a friend of some gal on the internet).

Gin1984

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Re: Buying house with houswife
« Reply #42 on: March 30, 2014, 11:13:36 PM »
please read all the posts because you are missing some of the earlier discussion. There are other exceptions beyond a pre-nup that trump community property per my lawyer.
If you were saying that to me, I had read the other posts.

kkbmustang

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Re: Buying house with houswife
« Reply #43 on: March 31, 2014, 04:29:56 AM »
Community property is community property-I doubt that CA is special.
I was married in California and I have consulted a lawyer on this prior to getting married.  And, yes, states have different laws.

This is true. And California and the 9th Circuit are always special.

I should have added the disclaimer that states could have different laws. Sorry. Chalk it up to late night posting.

cotterpin

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Re: Buying house with houswife
« Reply #44 on: March 31, 2014, 09:13:12 AM »
Community property is community property-I doubt that CA is special.
I was married in California and I have consulted a lawyer on this prior to getting married.  And, yes, states have different laws.

This is true. And California and the 9th Circuit are always special.

I should have added the disclaimer that states could have different laws. Sorry. Chalk it up to late night posting.


Agreed!!  And even laws are open to interpretation. Otherwise we wouldn't need two lawyers and a judge to duke it out for us.

I hope the OP will get things worked out between himself and his spouse first.  That should be the priority, and certainly a better investment than a house at this point.

DoubleDown

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Re: Buying house with houswife
« Reply #45 on: March 31, 2014, 10:15:36 AM »
please read all the posts because you are missing some of the earlier discussion. There are other exceptions beyond a pre-nup that trump community property per my lawyer.

I think we all know what the OP should or should not do, so leaving that aside and focusing on the general or theoretical situation at hand:

For all practical purposes, it would be virtually impossible for someone in the OP's situation to keep his separate property (as declared by him), separate, even if he could trace the down payment to clearly separate $$ that predated the marriage. As Arebelspy points out, this is a man who provides the sole income for the family. All continuing mortgage and maintenance payments will come from marital assets (his income), and thus will immediately be commingled. And, the family will be living together in the marital home.

So, assuming the soon-to-be-ex wife presses her claim to half the home's value (since this is the only situation we are interested in, it's a non-issue if she walks away on her own) then, as pointed out, the burden will be on the husband to show that it was his sole, separate property that completely predated the marriage that made the down payment, and that will definitely be a high burden. Even if that was established, the down payment will be immediately commingled with marital property in the form of the very first mortgage payment. Once it's commingled, that just about puts the nail in the coffin, so to speak.

It's just a fact that established law and precedent considers property acquired during a marriage to be joint property, absent evidence to the contrary. There are no doubt various state laws and exceptions, but generally it's not going to matter how it was acquired. A court will not presume the marital home was purchased with the intent of excluding the wife from half the value, absent a signed agreement from her specifically stating that to be the case. This will be particularly true for a family with a single wage earner -- his income is her income, and everything bought with it is half hers.

Now, in the case of the husband purchasing the home with his own separate, traceable, pre-marriage $$, and a month later the marriage dissolves, he might be able to get his down payment back just to himself. But after any significant passage of time, forget it. The court is not going to entertain teasing apart down payments, ongoing payments, appreciating value, repairs, improvements, sweat equity, etc. -- it's going to be split, period, particularly on a marital home which is, by definition, marital and not separate.

Furthermore, depending where you live, the court may heavily frown on attempts to disinvest a non-working, dependent spouse from shared assets like a marital home, so if there are other issues being argued (like child custody, pensions, other assets), it could backfire attempting to press such a claim (besides having little or no chance of success).

I'll even go a step further: I think even if a husband in this situation got his wife to sign a post-nuptial agreement forgoing any claim to the marital home value, she would have an equal or better chance of having a court toss that post-nuptial agreement and giving her half the home's value, then his chances of tracing his own, separate down payment and getting it back without a post-nuptial agreement. It's jut too lopsided against the wife.

kkbmustang

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Re: Buying house with houswife
« Reply #46 on: March 31, 2014, 02:33:39 PM »
please read all the posts because you are missing some of the earlier discussion. There are other exceptions beyond a pre-nup that trump community property per my lawyer.

I think we all know what the OP should or should not do, so leaving that aside and focusing on the general or theoretical situation at hand:

For all practical purposes, it would be virtually impossible for someone in the OP's situation to keep his separate property (as declared by him), separate, even if he could trace the down payment to clearly separate $$ that predated the marriage. As Arebelspy points out, this is a man who provides the sole income for the family. All continuing mortgage and maintenance payments will come from marital assets (his income), and thus will immediately be commingled. And, the family will be living together in the marital home.

So, assuming the soon-to-be-ex wife presses her claim to half the home's value (since this is the only situation we are interested in, it's a non-issue if she walks away on her own) then, as pointed out, the burden will be on the husband to show that it was his sole, separate property that completely predated the marriage that made the down payment, and that will definitely be a high burden. Even if that was established, the down payment will be immediately commingled with marital property in the form of the very first mortgage payment. Once it's commingled, that just about puts the nail in the coffin, so to speak.

It's just a fact that established law and precedent considers property acquired during a marriage to be joint property, absent evidence to the contrary. There are no doubt various state laws and exceptions, but generally it's not going to matter how it was acquired. A court will not presume the marital home was purchased with the intent of excluding the wife from half the value, absent a signed agreement from her specifically stating that to be the case. This will be particularly true for a family with a single wage earner -- his income is her income, and everything bought with it is half hers.

Now, in the case of the husband purchasing the home with his own separate, traceable, pre-marriage $$, and a month later the marriage dissolves, he might be able to get his down payment back just to himself. But after any significant passage of time, forget it. The court is not going to entertain teasing apart down payments, ongoing payments, appreciating value, repairs, improvements, sweat equity, etc. -- it's going to be split, period, particularly on a marital home which is, by definition, marital and not separate.

Furthermore, depending where you live, the court may heavily frown on attempts to disinvest a non-working, dependent spouse from shared assets like a marital home, so if there are other issues being argued (like child custody, pensions, other assets), it could backfire attempting to press such a claim (besides having little or no chance of success).

I'll even go a step further: I think even if a husband in this situation got his wife to sign a post-nuptial agreement forgoing any claim to the marital home value, she would have an equal or better chance of having a court toss that post-nuptial agreement and giving her half the home's value, then his chances of tracing his own, separate down payment and getting it back without a post-nuptial agreement. It's jut too lopsided against the wife.

Thank you for this Double Down.

Cassie

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Re: Buying house with houswife
« Reply #47 on: March 31, 2014, 03:35:07 PM »
Dragoncar, you assume that I do not know what I am talking about yet someone that claims to be a lawyer you take for gospel even though this is a person on the internet you do not know?

dragoncar

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Re: Buying house with houswife
« Reply #48 on: March 31, 2014, 03:41:54 PM »
Dragoncar, you assume that I do not know what I am talking about yet someone that claims to be a lawyer you take for gospel even though this is a person on the internet you do not know?

Where did I take anything for gospel?  My whole point is that anything you hear second hand should be taken with a grain of salt, and should definitely not be repeated as gospel.  That said, I'm a lawyer (in CA even!) and have read quite a few posts from kkbmustang, and I typically agree with her.  So that affects how much salt I take with her posts.

arebelspy

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Re: Buying house with houswife
« Reply #49 on: March 31, 2014, 03:56:45 PM »
Cassie, I'm not sure where your attitude is coming from, but it's not very constructive.

I can take it (and I deserve the attitude sometimes - I can be a jerk as well), but I don't appreciate you being rude to multiple other people in this thread.
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