Divorce is already one of life's most stressful experiences. Add a shared home to the equation, and the complexity multiplies. If you're facing divorce in California and wondering what happens to your house, this guide covers the legal framework, your options, and practical steps to move forward.
California Is a Community Property State
California is one of nine states that follows community property rules. Under California Family Code Section 2550, courts must divide community property equally between spouses—meaning a 50/50 split of assets acquired during the marriage.
The critical distinction is between community property and separate property:
- Community property includes anything acquired during the marriage, regardless of whose name is on the title
- Separate property includes assets owned before marriage, gifts received by one spouse, and inheritances
Many people assume that if only their name appears on the deed, they automatically keep the house. In California, this isn't necessarily true. The community property presumption can override title records for property acquired during marriage.
What Are Your Options?
When it comes to the family home in a California divorce, you generally have three paths:
1. Sell the House and Split the Proceeds
This is often the cleanest solution. You sell the home on the open market (or to a cash buyer), pay off the mortgage, and divide the remaining equity 50/50. This approach provides:
- A clean break for both parties
- Cash to establish separate households
- No ongoing financial ties between ex-spouses
2. One Spouse Buys Out the Other
If one spouse wants to keep the home, they can buy out the other's share. This requires:
- An appraisal to determine current market value
- The buying spouse to refinance the mortgage in their name alone
- Sufficient income to qualify for the new loan
If the buying spouse cannot afford the equalization payment, the house may need to be sold anyway.
3. Deferred Sale (Rare)
In cases involving minor children, courts sometimes order a deferred sale—allowing one spouse (usually the custodial parent) to remain in the home until the children reach a certain age. This is less common because it keeps both parties financially tied together.
The ATRO Restriction
Here's something many divorcing couples don't realize: once divorce papers are filed and served, Automatic Temporary Restraining Orders (ATROs) take effect under California Family Code Section 2040.
These ATROs prevent either spouse from:
- Selling or transferring community property
- Removing the other spouse from insurance policies
- Borrowing against community assets
This means you cannot simply list and sell the house on your own once divorce proceedings begin. You'll need either:
- A written agreement from your spouse
- A court order permitting the sale
Mixed Property Situations
Real-world situations are often messier than the law's neat categories. Consider these common scenarios:
Separate down payment, joint mortgage payments: If you used money you had before marriage for the down payment but paid the mortgage with income earned during marriage, the house is partially separate and partially community property. Courts use formulas to calculate each spouse's share.
Premarital home with community contributions: If you owned a home before marriage but your spouse contributed to mortgage payments or improvements during the marriage, they may have a community property interest in the appreciation.
Practical Steps If You're Selling
If you and your spouse agree to sell, here's what to expect:
- Get an appraisal or market analysis to establish current value
- Decide on the sale method—traditional listing, iBuyer, or cash buyer
- Agree on listing price and terms in writing
- Coordinate with your attorneys to ensure the sale is properly documented
- Divide proceeds at closing according to your agreement or court order
For couples who want to avoid the uncertainty of the traditional market—with showings, contingencies, and potential deal fall-throughs—selling to a cash buyer can provide a faster, more certain path to closure.
Timeline Considerations
Traditional home sales in California take an average of 60-90 days from listing to closing. Cash sales can close in as little as 7-14 days. If you're facing:
- Mounting carrying costs on a home neither party can afford alone
- A need to finalize the divorce quickly
- A property that needs repairs neither party wants to fund
A faster sale may make financial sense, even if the price is somewhat lower than a traditional listing might achieve.
What If You Can't Agree?
If you and your spouse cannot agree on what to do with the house, the court will decide. A judge may:
- Order the house sold with proceeds divided
- Award the house to one spouse with an equalizing payment
- Order a buyout within a specified timeframe
Court-ordered sales typically cost more in legal fees and take longer than negotiated solutions.
Moving Forward
Selling a home during divorce doesn't have to be adversarial. Many couples find that agreeing to a quick, fair sale allows both parties to start fresh. The key is understanding California's community property framework, knowing your options, and choosing the path that makes the most sense for your specific situation.
If you're considering selling your Southern California home during a divorce and want to explore a cash offer, we can provide a no-obligation valuation and explain how the process works. Sometimes a clean break is exactly what both parties need.