Divorce and Real Property in California Tip Sheet by Deed and Record

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Married couples own real property in California jointly so on death of one spouse the surviving spouse is the sole owner. This Tip Sheet by Deed and Record explains the consequences of joint ownership during and after a divorce.

Automatic Restraining Orders California Divorce

How to protect a spouse's one-half of Jointly owned Real Property in a California Divorce

Tip Sheet by Deed and Record explains the consequences of joint ownership during and after a divorce. Married couples own real property jointly so on the death of one spouse the surviving spouse becomes the sole owner. This is not a desirable outcome for divorcing couples.

Joint ownership with survivorship is in two forms, "joint tenancy" and "community property with right of survivorship." In California, every proceeding for nullity, dissolution, or legal separation, mutual temporary restraining orders automatically are effective. Two of the orders bar both parties from transferring or disposing of any real property until the divorce is completed.

To avoid the automatic transfer of ownership on death of one spouse the joint ownership must be severed. Severance of joint ownership does not violate the automatic restraining orders. The joint ownership is severed by a deed. The deed transfers one spouse’s one-half ownership from joint ownership to ownership as a tenant-in-common.

California real property owned as a tenant in common does not transfer on death to the co-owner. Instead the transfer on death is to the heirs of the decedent or as directed in a Will. A Will must be prepared because the spouse until the divorce is complete could be considered an heir.

If the divorce is completed and real property is still held in joint tenancy, a judgement to dissolve the marriage severs the joint ownership. A judgment of legal separation that does not terminate the status of husband and wife is not a dissolution for purposes of severing the joint tenancy.

In California, every proceeding for nullity, dissolution, or legal separation has automatic restraining orders to prevent the transfer or sale of real property. Real property owned as joint tenants or as community property with right of survivorship transfers ownership automatically on death of one spouse to the other spouse during divorce proceedings. Joint tenancy is severed by deed to avoid a windfall to the surviving spouse.

This Tip Sheet is prepared by Mark W. Bidwell, an attorney licensed in California. Office is located at 4952 Warner Avenue, Suite 235, Huntington Beach, CA 92649. Telephone is 714-846-2888. Mr. Bidwell markets through a website, deedandrecord.com.

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Mark Bidwell
Timeshare Lovers
since: 05/2016
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