Understanding the impact of Name on Title vs. ownership of Real Property in a California Divorce

Title on real property can be held in many forms in California.     Particularly, title on deeds can be held by individuals, couples and other entities.      Many married couples often take title to deeds as either "Joint Tenants" with right of survivorship, or as community property.

Often, the deed will state that both parties are "married".       In these cases, the property is commonly "community" in ownership nature and there may not be a dispute as to the extent of ownership by either party.      A more common problem occurs when one party either takes title during the marriage, as "a married person as their sole and separate property", or when a person owns property before marriage as "a single person."

Even if the title is in one spouse's name, that may not mean that the property is 100% theirs.

Starting with a line of family law cases in the 1980's, the California courts have analyzed a common problem- that if "community earnings during the marriage" are used to pay-down the mortgage on a property belonging to one spouse, the other spouse can actually gain an interest, or what is known as
a "pro-tanto community interest".      This theory is based upon the cases of Marriage of Moore (1980)288 Cal 3d. 366, and Marriage of Marsden (1982) 130 Cal. App.3d. 426, now more commonly known as the "Moore/Marsden" interest.

The Moore/Marsden theory basically looks at the percentage the mortgage or encumbrance was paid down during the marriage as well as the increase in property value, and "awards" the community (both spouses equally) a fractional share in the property.

This effect has been compounded over recent years because of the case of Marriage of Branco (1996)
47 Cal. App.4th. 1621, which states that if a property is refinanced "by the community" instead of by the spouse individually, the community gets an even larger interest in the property proportional to the new "community" encumbrance or debt.

Many people are surprised to learn of this situation, but they are common in divorce cases.     If you have a question about title to real property or your interest in property during the marriage, contact Torrance Divorce Lawyer Kevin J. Kensik at 310-704-0879.