House separate Property?

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House separate Property?

Unread postby Tommy494 » Fri Mar 03, 2017 9:50 pm

I purchased a house 2 years before I got married. I did not put my wife's name on the deed. I made all of the mortgage and utilities payments on the house. Seven years after being married I refinanced my house and took funds out to do some remodeling work. Only then did I do a quit claim deed and added her on the title. I continued to make all of the payments. 19 years into the marriage we are divorcing.

My attorney says that the house is my separate property. But I am questioning this because everything that I have read, it
states essentially that whatever is earned during the marriage is community property. The two years before marriage is separate property and not disputable. I live in Washington state. She said there is case law that says it would be my property but she also said that a judge if going to trial will rule that property be divided equitably meaning the house would be included. I don't understand how the house would be included in the division of assets if it's my separate property so that is why I am confused.

We are about to go to mediation. And if my attorney is wrong, the last thing I want is to fight for something that I'm not going to win and spend more money arguing about it. I kind of feel that she wants to use this as strategy saying it's my house but I would be willing to give my ex some equity from the home as part of the mediation.

Anyone hear of a similar situation and the outcome?
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Re: House separate Property?

Unread postby Ohiogal » Fri Mar 03, 2017 10:04 pm

Tommy494 wrote:I purchased a house 2 years before I got married. I did not put my wife's name on the deed. I made all of the mortgage and utilities payments on the house. Seven years after being married I refinanced my house and took funds out to do some remodeling work. Only then did I do a quit claim deed and added her on the title. I continued to make all of the payments. 19 years into the marriage we are divorcing.

My attorney says that the house is my separate property. But I am questioning this because everything that I have read, it
states essentially that whatever is earned during the marriage is community property. The two years before marriage is separate property and not disputable. I live in Washington state. She said there is case law that says it would be my property but she also said that a judge if going to trial will rule that property be divided equitably meaning the house would be included. I don't understand how the house would be included in the division of assets if it's my separate property so that is why I am confused.

We are about to go to mediation. And if my attorney is wrong, the last thing I want is to fight for something that I'm not going to win and spend more money arguing about it. I kind of feel that she wants to use this as strategy saying it's my house but I would be willing to give my ex some equity from the home as part of the mediation.

Anyone hear of a similar situation and the outcome?

You need a new attorney. YOU QUIT CLAIMED HER A PORTION OF THE HOUSE. You didn't say how you quit claimed her. But you gifted her a portion of the house. How is the deed worded now? She is a JTWRS? Or tenant in common?
I am licensed only in Ohio. NOTHING stated by me is legal advice OR forms an attorney/client relationship or is to be taken as me advising you regarding YOUR personal LEGAL circumstances.
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Re: House separate Property?

Unread postby astrolink » Sat Mar 04, 2017 1:45 am

I can research this a bit but I'll need to know what state you are in. From what I've seen over the years, once you put her on the title, you just gave her usually half the value of the home, although this can vary in equitable and community property states.
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Re: House separate Property?

Unread postby Tommy494 » Sat Mar 04, 2017 7:28 pm

I live in Washington State.

The deed says:

The grantor, (my name), who acquired title as (me), a married man as his separate estate, for and in consideration of creating a community property estate, conveys and quit claims to me and stbx, husband and wife, as Grantee, the following described real estate, situated in .............gives location and describes the plat and location of property.

I see where it says "creating a community property estate" as the problem. So, where does my attorney believe it is my separate property. She asked me why I didn't quit claim it when we got married and why after seven years. I told her about doing a refi for a better rate and getting money out for the remodel. I said if I hadn't gotten the refi I there would not have been a quit claim deed completed. She said because I never intended the house to be community property I can make an argument as my separate property. But if the deed says, "creating a community property estate", I don't see how it is separate property.

I'm trying to be reasonable here so if legally its community property I do not want to argue for a baseless claim. It will only lead to them fighting more for what they want and cost more money.
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Re: House separate Property?

Unread postby Chaos » Sat Mar 04, 2017 7:38 pm

Sounds like community property to me.
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Re: House separate Property?

Unread postby big guy » Sun Mar 05, 2017 1:58 pm

Your share is the money you put down and paid prior to your marriage. That being said, your refinancing makes everything more questionable.
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Re: House separate Property?

Unread postby JimRockford » Mon Mar 06, 2017 11:46 pm

Tommy494 wrote:I live in Washington State.

She said because I never intended the house to be community property I can make an argument as my separate property. But if the deed says, "creating a community property estate", I don't see how it is separate property.

I'm trying to be reasonable here so if legally its community property I do not want to argue for a baseless claim. It will only lead to them fighting more for what they want and cost more money.


This sounds like a losing argument, I would cut and run here and seriously question if you want to go forward with an attorney who makes arguments such as this. Remember, she still gets paid either way.

However, you need to check more into the laws of quasi community property in Washington State. In other words, I and most others here, don't believe that the house is your separate property, but I don't think that it is probably straight community either.

For example in CA your situation would definetly grant you your down payment and principal reductions prior to marriage as separate property. California also has a court decision called Moore/Marsden that handles how the equity is split up until she went on title. Washington will not have that, but may have similar decisions or laws that address this. Hope you also have all of your documentation as to the down payment, sources of funds from where it came from and all mortgage payments prior to marriage, as no one will take your word for this, you will have to trace it. You will also need the HUD 1 from the refinance to account for any cash taken or not taken out.
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Re: House separate Property?

Unread postby FlyGuySLO » Tue Mar 07, 2017 1:55 pm

I can speak from experience (but I live in CA) and say that there is a portion of the house that is community property and a portion that is yours. I also purchased a home prior to marriage and she moved in. She went on the deed via a QC part way through the marriage. You will need to establish the amount of equity in the house on DOM and DOS.

The amount of equity accrued DURING marriage via mortgage pay down, improvements made to the home, and market value increase, is community property and needs to be divided equally.

The amount of equity in the house prior to marriage is likely 100% yours.

So here is how my situation played out, in round numbers for ease of illustration:

Down payment was 100k and the home increased in value about 200K prior to marriage.

Equity on DOM = 300K (this is separate property)

Equity on DOS = 600k (300k is separate property and 300k is community property)

The way mine worked was:

Husband = 450K
Wife = 150K

I don't know WA laws but this was clearly the case here in CA. Good luck... let us know what happens.
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