It may be considered a marital asset if marital funds were used for the house. If you have a greater claim to the house, then it would likely be awarded to you as sole property, but you may have to buy him out of his portion of ownership (if the court awards him any).
It is possible to purchase a home while married without having the other spouse on the title or mortgage. Assuming you are financing the home, you would need to make sure the financial institution is willing to give the mortgage without the other party's name on the title and mortgage.
Both individuals on the loan are still legally liable for mortgage payments, and if one person doesn't pay, the other will be impacted. A divorce agreement should specify who is responsible for payments, but there's a risk that one party may not follow such an agreement.
For a community property in California, it depends upon when and how their spouse acquired the property. The law asserts that all property purchased during the marriage, with income that was earned during the marriage, is community property.
In many cases, the spouse can inherit your house even if their name was not on the deed. This is because of how the probate process works. When someone dies intestate, their surviving spouse is the first one who gets a chance to file a petition with the court that would initiate administration of the estate.
39;California is one of only a few states that considers marital property to be communal, meaning it belongs equally to each spouse, regardless as to how the item, asset, or property was actually obtained.
In the states with community property laws, all assets, including houses, cars, jewelry, etc., are divided in half between the spouses. It means that if you bought a house during your marriage, it qualifies as jointly owned, even if only your name is on the title or deed.
While refinancing is the most straightforward and obvious way to remove a person from a mortgage, that option isn't always available or optimal. Doing so without refinancing is possible via mortgage assumption, loan modification or even bankruptcy.
If your name is on the mortgage but not the deed, you are financially responsible for the loan but do not have ownership rights. This situation can arise if you co-sign a loan or take out a mortgage for someone else's property.
Community Property States
If you and your spouse live in a community property state, this means that all the assets you gain during marriage are owned by both of you. These nine states are community property states: Arizona. California.
What Happens If Your Spouse Is Not On the Mortgage. If your spouse is not on the mortgage, they are not responsible for paying it. However, the mortgage lender can foreclose on the house if the mortgage is not paid.
As of 2024, Colorado, Iowa, Kansas, Montana, New Hampshire, Texas, Utah, and the District of Columbia are common law marriage states, each with their own particular legal stipulations.
In most cases, judges try to avoid one-sided proceedings and will attempt to locate the other party in the situation. So if you filed for divorce, you shouldn't expect to complete the entire process behind your partner's back.
If such a transaction occurs without permission, the non-consenting spouse can petition the court to void it. This could lead to the lender losing its lien position on the property and becoming an unsecured creditor.
The short answer is yes, though you want to understand the pros and cons of getting a mortgage without your spouse.
Joint mortgage responsibility
If both spouses' names are on the mortgage, then both must keep paying, even if one leaves. Whether the spouse lives in the home or not, they remain financially tied to the mortgage until they pay it in full or it gets legally modified.
If you hold as joint tenants and they are alive, you need either their consent or a court order. California is a community property state and a spouse cannot be removed without some kind of compensation.
Legal Remedies When Refinancing Isn't Feasible
If the spouse who wishes to keep the home cannot successfully refinance it after the divorce, several legal remedies and options may come into play: Sell the Home: One option is to sell the marital home and divide the proceeds as agreed upon in the divorce settlement.
As per Indiana Code 31-15-7-4, unless the property was protected by a prenuptial agreement, any assets that were acquired either during or before marriage are considered marital property and will be included as part of the inventory for distribution.
If you are married or in a civil partnership
If you are married/in a civil partnership and are not on the mortgage, you can apply for a Matrimonial Homes Rights Notice. This will give you some occupation rights but will not provide you with any ownership rights.
In California, the state follows a 50/50 law, which means that any assets that were acquired during the marriage are split equally between both spouses. While this may seem like a fair approach to asset division, it can create problems for individuals who want to keep what's theirs.
It does not matter who bought the property or whose name it is titled in. If it was purchased during the marriage, it is considered marital property, owned by both spouses.
Co-Owner's Right to Access the Property
A fundamental rule of co-ownership in California is that: “One of the essential unities of a joint tenancy is that of possession. Each tenant owns an equal interest in all of the fee, and each has an equal right to possession of the whole. Possession by one is possession by all.
a spouse does not automatically get added to a deed upon marriage. At the time of the divorce, a court will indicate the non deeded spouse has ownership rights as if their name was actually on a deed.