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Who Gets the Family Home in a Carlsbad Divorce

On Behalf of | Aug 19, 2020 | Divorce

Who gets the family home in a Carlsbad divorce? This is a complex legal issue and it is best to seek the counsel of an experienced proven Carlsbad Certified Family Law Specialist for guidance and insight.

The equity in your family home is community property. Community property is to be equally divided between the parties. If the home was owned by one of the spouses prior to the divorce a complicated financial calculation will be required to determine the amount of the community’s interest in the home versus the “separate property” interest of the spouse who brought it into the marriage.

One of the most common misconceptions about the family home in a Carlsbad divorce regards how underlying financing is affected by the divorce. When a party is awarded the house the other party the judgment requires the other party to execute an “Interspousal Transfer Deed.” This document removes one party from the title, placing the home in the sole and separate ownership of the other party.

The party who is keeping the family home is responsible for all mortgage payments, taxes, maintenance, HOA fees and associated costs of ownership from that point.

The surprising fact for many people is this: there is no formal legal requirement for the party who is awarded the house to refinance it to remove the non-custodial party from the mortgage. This creates an ongoing contingent liability which can impact your credit and your ability to obtain financing on your own home in the future.

This is an area where those who attempt to handle their own divorce make mistakes that cost them dearly down the road. The settlement agreement must contain the correct legal language to ensure the court has continuing jurisdiction over the property until the underlying financing is paid in full.

This is crucial, especially if you are the party who has relinquished title to the property. This allows you to seek an order for the property’s sale or for the house to be awarded to you if the other party is not able to keep up the payments.

This is one of the many reasons it is so important to have the advice and counsel of the experienced, proven Carlsbad and North County divorce and family law attorneys at Burke & Domercq. We invite you to protect your own interests and contact us or call 760-389-3927 to schedule an appointment for a remote or socially distanced consultation with one of our experienced Certified Family Law Specialists.