Q: Getting back personal $ used as deposit on home.
I used $100K of my personal inheritance as a down payment on a house purchased jointly. We are considering divorce and selling of house. Do I get my money prior to splitting profits?
A:
In California, the characterization of property as separate or community is an important factor in determining how assets, including the family home, are divided during a divorce. Generally, any property acquired before the marriage or by gift or inheritance during the marriage is considered separate property.
In your case, the $100K you used as a down payment on the jointly purchased house was your inheritance, which would typically be considered your separate property. However, the characterization of the property can change depending on how it was handled during the marriage.
When dividing the proceeds from the sale of the house, the court will likely first try to reimburse you for your separate property contribution (the $100K down payment) before dividing the remaining profits as either community property or separate property, depending on the specific circumstances.
However, there are some factors that could complicate the situation, such as:
1. Commingling: If the inherited funds were mixed with community property funds, it might be difficult to trace the separate property.
2. Transmutation: If there was an agreement, either written or implied, to convert the separate property into community property, the characterization of the funds could change.
3. Community property contributions: If community funds were used to pay the mortgage or make improvements to the house, the community estate may be entitled to reimbursement as well.
Given the complexities involved, it is highly recommended that you consult with a qualified California family law attorney who can review the specific details of your case and advise you on how to protect your separate property interest in the house during the divorce proceedings.
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