Janet Magdangal said:
I live in Calif and would like to know what interest my ex-husband has in my property I was married for 6 years 1994-2000 and has owned the home since 1974. His name was never put on the title and he has never made a house payment. Please let me know what he is entitled too. We do have a daughter together. Thanks
My response:
If one of the spouses brings to the marriage a residence that is subject to an encumbrance, which encumbrance is paid in whole or in part with community property during the marriage, the property, while remaining separate, will develop a community property interest that must be divided, assuming the contributions were not gifts to separate property. [Re Marriage of Moore (1980) 28 Cal 3d 366, 168 Cal Rptr 662, 618 P2d 208; Marriage of Marsden (1982 1st Dist) 130 Cal App 3d 426, 181 Cal Rptr 910]
In Moore, the court set forth the formula for calculating the separate property interest in the residence which the wife had purchased shortly before marriage. That amount was calculated by crediting her separate property with the down payment and the full amount of the loan less the amount by which community property payments reduced the principal balance of the loan. That sum was divided by the total purchase price of the property to create the percentage of the separate property interest in the increased value of the property. Similarly, the community interest was determined to be the amount by which community property payments reduced the principal of the loan divided by the purchase price. The Moore court only considered payments that reduced principal, and specifically excluded any credit for payments made for interest, taxes and insurance. [Re Marriage of Moore (1980) 28 Cal 3d 366, 168 Cal Rptr 662, 618 P2d 208]
The Moore decision was simplified by the fact that the wife had purchased the property shortly before marriage, and it was found that there had been no appreciation in value at the date of marriage, nor had there been a significant reduction in the principal balance owing on the loan. Further, the parties lived in the residence together until their date of separation, and all payments from the time of marriage until the date of separation were made from community property.
The Marsden decision was made more difficult due to the fact that the husband had owned the property for 7 years prior to marriage. The trial court had not given any credit to the husband for the increase in value from the time of purchase until the time of marriage. The court of appeal found this to be an error, finding that the premarital appreciation should be credited to husband’s separate property. [In re Marriage of Marsden (1982, 1st Dist) 130 Cal App 3d 426, 181 Cal Rptr 910]
A party’s execution during marriage of a quitclaim deed to property which the other spouse owned prior to marriage does not do away with the party’s right to claim Moore-Marsden appreciation as a result of community payments made during marriage. [See Branco v. Branco (In re Branco) (1996, 1st Dist.) 47 Cal.App.4th 1621, 55 Cal.Rptr.2d 493 (disapproving contrary holding in In re Marriage of Stoner (1983, 2nd Dist.) 147 Cal.App.3d 858, 195 Cal.Rptr. 351)]
Good luck.
IAAL
