You bought a house before getting married, and salaries, bonuses, commissions or other income earned during marriage were used to make improvements or pay the mortgage on your house. Now, you’re legally separating or dissolving a domestic partnership or getting divorced in California and your spouse claims that he/she acquired an interest in the house and you must buy-out is/her share in order to keep the house or divide the net sales proceeds if you sell the house.
You want to know if the claim has merit, and if so, how much of an interest your spouse acquired in the house.
You can find answers in the California Court of Appeal’s opinions for Marriage of Marsden (1982) 130 CA3d 426 and Marriage of Moore (1980) 28 C3d 366, which provide in part:
If community property is used to reduce the mortgage principal or increase the equity in a spouse’s separate property house, the community acquires an ownership interest in the home; and
Ultimately, the disposition of the house is a reflection of the community and separate property percentage and cash interests in the house at the time of a trial.
California Family Code Section 760 defines community property as follows:
Except as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property.
California Family Code Section 770 defines separate property as follows:
(a) Separate property of a married person includes all of the following:
(1) All property owned by the person before marriage.
(2) All property acquired by the person after marriage by gift, bequest, devise, or descent.
(3) The rents, issues, and profits of the property described in this section.
In lay-speak, the court’s opinions in Marriage of Moore and Marriage of Marsden and California Family Code Sections 760 and 770 mean:
- If a person buys a house before getting married and doesn’t legally transmute (transform) the character of the house from separate to community property by way of a prenuptial or legal transmutation agreement or Deed, the house is separate property
- Unless a couple has a premarital or postnuptial agreement stating otherwise, spouses’ salaries, bonuses, commissions, etc. earned during marriage are community property
- If asked, a California family law judge must divide community property equally in a Legal Separation or Dissolution of Marriage or Domestic Partnership.
- If salaries, bonuses, commissions, etc. earned by a spouse during marriage are used to reduce the mortgage principal or increase the equity in a spouse’s separate property house, the community acquires an ownership interest in the home
- The formula for calculating the community property interest in the separate property house at the time of trial (or settlement conference) is in the California Court of Appeals opinion for Marriage of Marsden (1982) 130 CA3d 426 – it’s often referred to in the trade as Moore-Marsden.
Step One: Gather the following relevant facts:
- Date of marriage
- Date of separation
- Date of house purchase
- Purchase price
- Title on Deed
- Type of Deed
- Amount of down payment
- Down payment paid by
- Source of down payment (i.e. premarital income, inheritance)
- Principal mortgage balance on date of purchase
- Secondary loan balance(s) on date of purchase
- Amount of principal paid by the homeowner spouse before the date of marriage
- Amount of principal paid by the homeowner spouse after the date of separation from a separate property source
- Amount of principal paid with community property funds from date of marriage to the date of separation
- Amount of principal paid with community property funds from the date of separation to the date of trial or settlement
- Premarital home appreciation (value of home on date of marriage minus purchase price)
- Value of home at the time of trial
- Appreciation of the house from the date of marriage through the date of trial or settlement
Step Two: calculate the following percentages that are used to determine the separate and community property interests in the appreciation accrued in the home after the date of marriage and before trial:
Separate property percentage = (Down payment + (separate property loan – community property payments))/ divided by the purchase price)
Community property percentage = (community property payments that reduced the separate property loan(s) principal/ divided by the purchase price)
Step Three: calculate the following cash interests:
Separate property cash interest = separate property down payment +principal loan payments paid with separate property before marriage +principal loan payments paid after separation with separate property funds + all premarital appreciation + separate property percentage of the appreciation during marriage through the date of trial
Community property cash interest = community property principal loan payments + community property percentage of marital appreciation
Step Four: calculate the cash interests to be awarded to the separate property homeowner and his/her spouse
Award to separate property homeowner spouse = Separate property cash interest + one-half of community property cash interest
Award to non-homeowner spouse = one-half of community property cash interest
To illustrate, here are the facts, formula, and outcome or disposition in Marriage of Marsden (1982) 130 CA3d 426:
Facts: H bought a home before marriage for $38,300. H paid $8,300 down and executed a $30,000 purchase money trust deed loan for the balance. Title was taken solely in H’s name. At the time of H’s marriage to W (nine years after purchasing the residence), H had made a total of $7,000 loan payments that reduced the loan principal balance and the property had increased in value to $65,000 ($26,700 premarital appreciation). H used his post-separation earnings (separate property) to further reduce the loan principal by an additional $655. The balance of the loan at the time of trial was $13,145.
During marriage and prior to the date of separation, the community made$9,200 in payments that reduced the principal loan balance. At time of trial, the property was worth $182,500 ($117,500 appreciation between date of marriage and date of trial).
Separate property percentage: 75.98% = ($8,300 down payment + ($30,000 separate property loan – $9,200 community property payments)) /divided by the $38,300 purchase price)
Community property percentage: 24.02% = ($9,200 community property payments that reduced the separate property loan(s) principal /divided by the$38,300 purchase price)
Separate property cash interest: $131,931.5 =$8,300 separate property downpayment +$7,000 separate property before marriage principal loan payments +$655 post-separation separate property principal loan payments +$26,700 premarital appreciation + $89,276.50 separate property percentage of the appreciation during marriage ($117,500*75.98%)
Community property cash interest: $37,423.50 =$9,200 community property principal loan payments + $28,223.50 community property percentage of the appreciation from the date of marriage through the date of trial ($117,500*24.02%)
H was awarded the separate property interest of $131,931.50 plus one-half of the community interest of $18,711.75 ($37,423.50/2) for a total of $150,643.25. W was awarded one-half of the community property interest of $18,711.75 ($37,423.50/2). H was responsible for the balance due on the loan.
If H wished to keep the home, he would pay wife $18,711.75. If W wished to keep the home, she would pay H $131,931.50 and assume or refinance the loan.
A few final notes:
- The Moore-Marsden rule and formula applies to the disposition of commercial or residential property (See Marriage of Frick (1986) 181 CA3d 997)
- The Moore-Marsden rule and formula are not used to determine the disposition of property acquired during marriage, even if funded by one spouse’s separate property
- Payments towards mortgage interest, property taxes, maintenance, utilities are not taken into consideration in the Moore-Marsden formula
- You can learn more about Moore-Marsden by reading Hogoboom & King, California Practice Guide: Family Law (Rutter) Section 8:295 etc.