Tip Sheet on Real Property Ownership During a California Divorce by Deed and Record

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A petition for dissolution of marriage freezes ownership of California Real Property. This Tip Sheet by Deed and Record explains the consequences of real property owned in joint tenancy during and after a divorce proceeding in California.

Automatic Restraining Orders California Divorce

Joint Tenancy Real Property in California Divorce

From the date of filing a petition to the date judgment is entered for dissolution of marriage neither party can transfer ownership interest in real property. During this period if one spouse were to die the other spouse would inherit the real property.

On the death of one spouse real property owned in joint tenancy goes to the surviving spouse. A couple in a divorce will not want the other spouse to inherit his or her ownership in real property. This Tip Sheet by Deed and Record explains how family law and inheritance laws affect real property during and after a divorce proceeding.

In California every proceeding for nullity, dissolution, or legal separation, four standard mutual temporary restraining orders are automatically effective. The orders bar both husband and wife from transferring or disposing of any real property. On death of one spouse real property owned as joint tenants or community property with right of survivorship automatically goes to the surviving spouse.

A couple in a divorce will not want the other spouse to inherit. The solution is severe the joint tenancy. A severed joint tenancy does not change ownership and so does not violate the automatic restraining orders. Severance changes ownership of both spouses from joint tenants to tenants-in-common.

Real property owned as a tenant-in-common is distributed on death according to the terms a Will. If there is no Will, the tenant-in-common interest is distributed according to the intestate laws of California. The intestate laws provide if there is no Will real property owned by one spouse is inherited by the surviving spouse. So at the same time the tenant-in-common interest is created a Will must be created.

The ambiguous status of property ownership is only while a divorce is pending. A judgment for dissolution of marriage automatically severs the joint tenancy. So if a husband and wife do nothing with their joint tenancy property during the divorce, once the judgment is entered neither spouse will inherit the other spouse’s ownership interest.

From the date of filing a petition to the date judgment is entered for dissolution of marriage neither party can transfer ownership interest in real property. During this period if one spouse were to die the other spouse would inherit the real property. To avoid a windfall to the surviving spouse the joint tenancy is severed. After the marriage is dissolved real property owned in joint tenancy is severed under California law.

This press release is provided by Mark W. Bidwell, a licensed California attorney. Mr. Bidwell’s office is at 4952 Warner Avenue, Suite 235, Huntington Beach, California 92649. Phone number is 714-846-2888.

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Mark Bidwell

Mark W.Bidwell
Kim Nishida
since: 10/2012
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