Characterization in divorce proceedings of Real Property acquired prior to marriage, but paid with community funds after marriage.

Characterization in divorce proceedings of Real Property acquired prior to marriage, but paid with community funds after marriage.

Generally in California, property acquired by a spouse prior to marriage is considered under the family code as separate property while those acquired after marriage are considered community assets. What ever happens when one spouse purchases real property before marriage but retains it during marriage and uses community funds to pay the mortgage? The community in this situation acquires a pro tanto interest in the ratio that the payments on the purchase price made with community funds bear to the total payments on the purchase price and any appreciation should be apportioned accordingly. Marriage of Moore (1980) 28 C3d 366, 371, 373, 168 CR 662, 664, 665. Other expenses associated with the property are not considered in the calculation such as mortgage interest, taxes, and insurance. In essence, the real property would accumulate both a separate property and a community property component by the date of separation. The appropriate remedy in this situation where separate property is subsequently paid with community funds is “apportionment.”

The process of apportioning between the separate and community property component is laid out in the Marriage of Madsen. In that case, the court determined the ratio or percentage in which the mortgage loan principal was reduced during the marriage and applied that percentage to the appreciation of the real property during the marriage. The community property component would then consist of the reduction in the mortgage loan principal during the marriage plus the portion of appreciation during the marriage applying the ratio discussed above.

In the Marriage of Madsen, the real property was purchased by the husband for $38,300 prior to the marriage. The original mortgage was $30,000. By the time the husband got married, the house was now worth $65,000 while the mortgage has gone down by $7,000. Both the appreciation of $26,700 and the mortgage reduction of $7,000 would be separate property since it occurred prior to marriage. Marriage of Madsen (1982) 130 CA3d 426, 181 CR 910.

During the marriage until the time of trial, the property has appreciated another $117,500 (property now valued at $182,500) while the mortgage has further declined by $9,200 up to the date of separation. The ratio at which community funds paid down the mortgage ($9,200) during the marriage to the original purchase price ($38,300) amounts to 25.02%. This percentage of the property appreciation during the marriage of $117,500 ($28,223.50) plus the reduction in mortgage balance during the marriage ($9,200) would constitute the community component of the real property. The rest was the husband’s separate property. The husband in that case was awarded his separate property component of the real property plus one half of the community property component.

The Madsen apportionment method is also applicable to situations where a community real property is later transmuted into one spouses separate property through execution of a quit claim by the other spouse but is subsequently paid using community funds. Marriage of Broderick (1989) 209 CA3d 489, 257 CR 397. If your divorce case involves complex issues of asset distribution, it is best to retain the representation of competent counsel.

Please note that this article is not legal advice and is not intended as legal advice. The article is intended to provide only general, non-specific legal information. This article is not intended to cover all the issues related to the topic discussed. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. This article does not create any attorney-client relationship between you and the Law Offices of Kenneth U. Reyes, P.C. This article is not a solicitation.

Attorney Kenneth Ursua Reyes was President of the Philippine American Bar Association for 2005. He is a member of both the Family law section and Immigration law section of the Los Angeles County Bar Association. Mr. Reyes is a Certified Family Law Specialist. He is a graduate of Southwestern University Law School in Los Angeles and California State University, San Bernardino School of Business Administration. He has extensive former CPA experience prior to law practice. LAW OFFICES OF KENNETH REYES, P.C. is located at 3699 Wilshire Blvd., Suite 700, Los Angeles, CA, 90010. Tel. (213) 388-1611 or e-mail; visit at

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