In the midst of divorce proceedings in California, questions often arise about the handling of marital assets, particularly the marital home. One common query concerns the ability of one spouse to refinance the home that, despite being a marital asset, is solely in the other spouse’s name.
Understanding Marital Property:
California is a community property state, meaning that any assets acquired during the marriage are considered jointly owned by both spouses, regardless of whose name is on the title. This includes the marital home. Therefore, decisions regarding the home, such as selling or refinancing, typically require mutual agreement.
Refinancing During Divorce:
- Mutual Consent: Generally, refinancing the marital home during a divorce would necessitate the consent of both parties, particularly if both spouses’ incomes were considered in the original mortgage application.
- Legal Restrictions: Once divorce proceedings have started, automatic temporary restraining orders (ATROs) come into effect, preventing either spouse from altering the financial status of marital assets without the other’s consent or a court order. This includes actions such as refinancing a mortgage.
- Court Permission: If one spouse wishes to refinance the home during the divorce and the other does not consent, the requesting spouse would typically need to seek permission from the court. The court will consider various factors, including the refinancing’s impact on both parties’ financial situations and the equity in the home.
Protecting Your Interests:
- Legal Advice: It’s crucial to seek the advice of a family law attorney who can provide guidance specific to your situation and help protect your interests regarding the marital home and other assets.
- Negotiation and Agreement: Spouses can negotiate terms regarding the marital home as part of their overall settlement agreement. This might include one spouse refinancing the home to buy out the other’s share.
Conclusion:
In California, refinancing a marital home during divorce proceedings without the written approval of both spouses is generally not permissible due to community property laws and the automatic temporary restraining orders that take effect when a divorce is filed. Cooperation, legal guidance, and, if necessary, court intervention are key to resolving such matters amicably and fairly.
***
Disclaimer: This content is for informational purposes only and does not constitute legal advice. Laws and legal procedures are subject to change and can vary widely based on specific circumstances. For personalized legal advice, please consult a licensed attorney in California.