|
|
Last Modified on Oct 14, 2026
Selling or Buying Out the Family Home in a California Divorce
By Kent Tierney | Tierney Law Group, P.C.
Most East Bay divorces involving a house end in one of three ways: the house is sold and the net proceeds are divided; one spouse keeps it and the other receives an equalizing payment or other assets; or a court temporarily delays the sale so a child can remain in the home. This article covers the first two. The third, a deferred sale of home order under Family Code sections 3800 through 3810, is covered in a separate article.
The Community Estate Is Divided Equally Unless You Agree Otherwise
Family Code section 2550 is the starting rule. Except upon the written agreement of the parties, an oral stipulation in open court, or as otherwise provided in that division of the code, the court shall divide the community estate equally. Equal does not mean each asset is cut in half; it means the total community estate is divided equally. Until there is a court order, property and debt from the marriage still belong to both spouses, no matter who is using them.
In general, community property is what either spouse earned, bought with those earnings, or owed from the date of marriage until the date of separation. Separate property generally includes what a spouse owned or owed before marriage or after separation, plus gifts and inheritances. A mortgage taken out to buy the house during the marriage is generally a community obligation, and whose name is on the loan does not, by itself, change that. Whether a particular spouse is personally liable to the lender is a separate question, governed by the loan documents and Family Code sections 910 through 916.
If the house was bought before marriage and community money later paid down the loan or improved the property, the size of the community interest is a characterization question. That formula is explained in our Moore/Marsden article.
The Value Is Usually Set Near Trial, Not on the Date of Separation
Family Code section 2552(a) requires the court to value assets and liabilities as near as practicable to the time of trial. Under section 2552(b), on 30 days’ notice, the court may for good cause value assets at a date after separation and before trial. A buyout number based on an old estimate is not the statute’s default.
The Summons Restrains a Sale, a Refinance, and Most Changes to Title
Family Code section 2040 restrains both parties from transferring, encumbering, hypothecating, concealing, or in any way disposing of any property, real or personal, whether community, quasi-community, or separate, without the written consent of the other party or an order of the court, except in the usual course of business or for the necessities of life. Listing the house, accepting an offer, signing a deed, or borrowing against the equity requires written consent or a court order first.
The summons also warns that property acquired during marriage in joint form is presumed to be community property for purposes of division, but that if either party dies before the property is divided, the way title is held on the deed controls.
The current version of section 2040 is scheduled to be repealed on January 1, 2027. Assembly Bill 1297 (2025) replaces it on that date with a version that carries the same restraints forward and adds a prohibition on letting insurance coverage lapse for nonpayment or failure to renew. The restraints on selling, refinancing, or retitling the home continue.
Sale Versus Buyout, in Practice
A sale is often the cleaner way to equalize when neither spouse can carry the payment alone. A buyout keeps one spouse on title and gives the other an equalizing payment. A divorce judgment does not, by itself, remove a spouse’s name from the mortgage. That is a contract with the lender, and it generally requires a refinance or an assumption the lender approves.
Family Code sections 2100 through 2107 require each spouse to make a full and accurate disclosure of assets and liabilities, and impose a continuing duty to update that disclosure when there are material changes.
Talk With a Pleasanton Family Law Attorney
If you have questions about a family home in a divorce or legal separation in Pleasanton, Alameda County, Contra Costa County, or elsewhere in the East Bay, the attorneys at Tierney Law Group can help you evaluate your options.
Contact Tierney Law Group at (925) 362-3364 or [email protected] to schedule a consultation.
This article is for general informational purposes only and is not legal advice. Outcomes depend on the specific facts of each case. Confirm current law with counsel before listing, refinancing, or transferring a home.
