In community property states (e.g. California), if I purchase a real property before marriage, that is separate property. But if I'm married and I and my spouse now live in that property I bought before marriage, does that property become community or separate property if a divorce occurs? Thanks.


1 Answer 1


The property is probably of mixed character. The original equity in the house is your separate property, but typically during the course of the marriage you will add to that equity by making mortgage payments, making improvements or additions to the home, etc. Usually these are paid for with community property, such as income you make during the marriage.

As a result, the community acquires some of that equity. This process is called "commingling" and it's treated differently on a state by state basis. In some states, the addition of any significant amount of community equity gets the whole thing kicked over to the community property bucket (unless the spouses agree otherwise in writing, which is a good idea if you'd like to preserve your separate property).

In California, this does not appear to be the rule. Rather, the court will divide the equity according to the amount actually paid during the marriage (according to the California Courts self-help guide, who ought to know):

One spouse uses money they earned before they married as a down payment on a house. The down payment for this new house is separate property. The married couple uses money they’re earning to make the mortgage payments. This means the payments are made using community property. The equity (value) resulting from paying down the house loan is community property. The equity in the house is now part community and part separate property.

Who if anyone actually lives in the house is immaterial to its community or separate nature. You don't have to have equity in a house in order to live in it or vice versa.

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