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Can I Get My Down Payment Back if I Bought the House Before Marriage?


The issue of property division is one of the first questions to arise among divorcing couples and a point of contention when there are disagreements. In California, courts differentiate between separate property and marital property, allowing spouses to retain any assets or property they had prior to the marriage. If you purchased a home before your marriage, this differentiation is of particular importance to you.

It is possible for your home to be considered separate property if:

  • The home was purchased prior to your marriage
  • The home was either a gift to you or something you acquired as an inheritance
  • Your spouse’s name is not in the title ownership
  • You did not refinance or retitle the home and add your spouse as a co-owner
  • It was separate property from a previous marriage and, thus, can be retained as separate in your next marriage

Purchasing the home before marriage is not, in itself, enough for you to keep your home. If you used funds from marital assets to pay for the home, your spouse will be entitled to a portion of it. To be fair, the courts will likely look at the percentage each spouse contributed to the home’s equity and divide it accordingly during the divorce process.

The Down Payment

In California, there is a law known as 2640 Reimbursement, which is part of Section 2640 of the California Family Code, which allows anyone who uses funds from separate property to have his or her down payment repaid as long as the appropriate documentation is provided.

To accomplish this, you will have to prove the funds used came from either separate property or were inherited, which you can do through court documents, providing copies of a court order, bank statements, or producing a copy of a will. After you receive reimbursement for your down payment, it is important to remember that you might not receive the rest of the equity attributed to the house. If the mortgage was paid using marital funds, the rest would be divided between you and your spouse.

For example, you purchased a home for $500,000 and your down payment was $100,000, but the home appreciated in value and is now $800,000. You were able to sell the home for its appreciated value, which covers the $400,000 loan you took on the house, leaving $400,000 in equity. Everything other than your down payment was community property. You would be reimbursed for the $100,000 down payment, but the remaining $300,000 would be considered community property and divided 50/50.

Rancho Cucamonga Divorce Attorneys

Going through a divorce is a difficult situation and is often wrought with stress, frustration, and anger as couples engage in a game of tug and war over property and assets. When facing property division, you should not go through this alone. The Rancho Cucamonga divorce attorneys at Chung & Ignacio, LLP have guided countless clients through these matters and can use this insight to help you navigate the complexities of your own case. When you choose to hire us, you will receive quality service and personalized legal solutions tailored to your needs. Our legal team understands that each case is unique and takes the time to understand the situation, needs, and goals of each client we represent.

Your divorce does not have to be challenging. With the right legal advocate, you can be spared the headaches too many divorcing spouses often have to endure.

Contact us today at (909) 726-7112 to tell us more about your case. We offer free consultations.