Whose house is it? California community property, in plain terms
Before anybody in a California divorce can talk about keeping or selling the house, the house gets sorted. Part of it may belong to both of you and part to one of you, and most houses I've seen come out as a mix. Below is how the sorting works, with two worked examples and every step shown.
Bought during the marriage means community, as a starting point
Family Code 760 is one sentence long. Except where another statute says otherwise, property either spouse acquires during the marriage while living in California is community property. A house bought after the wedding with paychecks earned after the wedding is the plain case.
The debt follows the same logic. The Judicial Council's self-help page on property and debts says a mortgage taken out to buy a house while you were married is community debt, which means both of you are on the hook for it no matter whose name is on the paycheck that makes the payment. The same page draws the line at the date of separation: what each of you earns after that date is your own.
What stays separate
Family Code 770 lists separate property: anything you owned before the marriage, anything you received during it by gift or inheritance, and the rents and profits from those things. The self-help page adds the condition that trips people up. Separate property stays yours as long as it was kept separate.
Houses are rarely kept separate. Somebody refinances and adds the other spouse to the loan, or the mortgage comes out of the joint checking account for eleven years. Either one blurs the line, and the law has a different rule depending on which way it got blurred.
The deed matters more than people think
Family Code 2581 says property bought during the marriage in joint form is presumed to be community property in a divorce. Joint form covers joint tenancy, tenancy in common and community property. The presumption can be beaten only two ways: a clear statement in the deed itself that the property is separate, or proof of a written agreement saying so. "We always said it was my house" is neither.
So find the grant deed from when you bought and read the vesting line, the one that says how you two hold title. In my front office we had a saying about field trip forms: if it isn't signed, it didn't happen. Title works about the same way.
Getting a down payment back under Family Code 2640
Here's the situation that comes up most when friends ask me about this. One spouse sold a condo they owned before the wedding, or cashed out money saved before the marriage, and put it down on the family house. The deed went into both names. Under 2581 the house is presumed community. Is the down payment gone?
Not necessarily. Family Code 2640 gives that spouse a right to be reimbursed for separate-property contributions to community property, if they can trace the money to a separate source. Contributions include down payments, payments for improvements, and payments that reduce loan principal. They do not include interest, maintenance, insurance or property taxes.
The catches are written into the statute:
- The reimbursement comes back without interest and without any adjustment for inflation or the house going up in value.
- It can't be more than the net value of the property when it's divided.
- A written waiver, or a signed document that works like one, cancels the right.
- The money has to be traced. A bank statement showing the funds leaving a premarital account and landing in escrow is the kind of thing that does it.
This is where my habit of keeping every worksheet would have paid off if our down payment had come from anywhere interesting. Yours might have.
Example: a 2640 reimbursement
The numbers below are made up to show the order of operations. They are not data about any real house.
| Example step | Amount |
|---|---|
| Purchase price, bought during the marriage, joint title | $400,000 |
| Down payment from Spouse A's premarital savings, traced | $60,000 |
| Agreed value at division | $540,000 |
| Loan payoff at division | $290,000 |
| Net equity (540,000 minus 290,000) | $250,000 |
| Spouse A's 2640 reimbursement, taken off the top | $60,000 |
| Community equity left to divide | $190,000 |
| Each spouse's half of that | $95,000 |
| Spouse A's total | $155,000 |
| Spouse B's total | $95,000 |
Notice what didn't happen. The house went up $140,000 and Spouse A's $60,000 came back as exactly $60,000. That's the "without interest or adjustment" language at work.
The house one of you owned before the wedding
Now flip it. One spouse bought the house alone before the marriage, and after the wedding the mortgage got paid with marital earnings. The self-help page sums up the result in one line: the equity in the house becomes part community and part separate.
The formula courts use is called Moore/Marsden, after two cases. In re Marriage of Moore, a 1980 California Supreme Court decision, gave the community a share in proportion to how much loan principal it paid down, measured against the purchase price. Interest, taxes and insurance don't count toward it. In re Marriage of Marsden, a 1982 appeals court case, added that the value the house gained before the wedding stays with the spouse who owned it. A 2020 appeals decision, In re Marriage of Mohler, held that the community's percentage stops growing at separation, because after that date the payments come from one person's separate earnings.
In plain terms: the community bought a slice of the house one principal payment at a time, and that slice shares in the growth during the marriage.
Example: a Moore/Marsden split
Again, made-up numbers. To keep the arithmetic clean, assume no principal was paid before the wedding and the value is set at trial, which is what Family Code 2552 calls for unless the court picks a later date for good cause.
| Example step | Figure |
|---|---|
| Purchase price before the marriage ($60,000 down) | $300,000 |
| Value on the wedding day | $360,000 |
| Loan principal paid with marital earnings | $45,000 |
| Community percentage (45,000 divided by 300,000) | 15% |
| Growth in value during the marriage (540,000 minus 360,000) | $180,000 |
| Community's 15% of that growth | $27,000 |
| Community interest (45,000 plus 27,000) | $72,000 |
| Each spouse's half of the community interest | $36,000 |
| Owner's separate interest (equity of $345,000 minus 72,000) | $273,000 |
The non-owner spouse walks away with $36,000 of a $345,000 equity. The owner keeps the down payment, all of the growth before the wedding, and 85 percent of the growth after it. People are often surprised in both directions, so run your own numbers before you decide whether to fight about it.
Refinances, improvements paid with marital money, and a spouse living in the house long after separation all change this math. Those are real reasons to talk to a family law attorney before you sign.
How common this is in Sacramento County
You are not the only household on your street doing this. The Census Bureau's 2025 American Community Survey counted 1,325,672 people age 15 and older in Sacramento County, and 9.7 percent of them were divorced at the time of the survey, roughly 129,000 people. That share was 11.8 percent in 2019. Statewide in 2025 it was 8.5 percent, and nationally 10.2 percent.
One-year estimates. Divorced margin of error is plus or minus 0.6 points.
| Status | Share |
|---|---|
| Now married (except separated) | 44.5% |
| Never married | 38.9% |
| Divorced | 9.7% |
| Widowed | 5% |
| Separated | 1.9% |
Disclosures: the paperwork that makes the sorting possible
Nobody can sort a house that nobody has listed. Under Family Code 2104, each spouse serves a preliminary declaration of disclosure, signed under penalty of perjury on a Judicial Council form. It has to identify every asset and debt you have or may have an interest in, whether you think it's community or separate. So you list the house even if you're sure it's yours alone. It has to include your tax returns from the past two years, and it goes out with an income and expense declaration.
In practice that means a cover sheet, form FL-140, plus a Schedule of Assets and Debts, form FL-142, or a Property Declaration (FL-160) in its place. The spouse who filed has to serve it with the petition or within 60 days after filing. The disclosure itself is not filed with the court, only a proof that it was served. A second, final disclosure comes later unless both of you sign a waiver.
Don't fudge it. Perjury on the declaration can be grounds to set aside the judgment, and the self-help page warns a judge can take property away or order fees for hiding things.
For local help filling these out, the Sacramento County Public Law Library keeps a divorce and separation topic page with Sacramento resources, including groups that run disclosure workshops.
When the sorting says neither of you can keep it
Sometimes the worksheet comes out even and still nobody can carry the payment alone. Then the house gets sold, and both of you sign. In my old school neighborhood, most families I knew listed with an agent. A few called Citrus Heights cash home buyers instead, mostly when the house needed work neither spouse wanted to pay for. 916 Home Offer is one of them, a Sacramento outfit that makes cash offers on houses as they stand. Either way, the 2640 reimbursement and any Moore/Marsden share come out of the proceeds before the rest is split.
Find the closing statement from when you bought the house. Ours was in a manila folder under the Christmas decorations. It answered a question that two people with very good memories had remembered two different ways.