Hi,I am married and live in California. I am thinking of buying a small house on my own without my wife's money. The purpose is to avoid sha...

Question

Hi,

I am married and live in California. I am thinking of buying a small house on my own without my wife's money. The purpose is to avoid sharing the property if we were to divorce in the future. I heard that if my wife agrees to sign quit claim deed for the property, then she cannot claim on the house I own. Is that correct? Or is it impossible in California? What is the legal process to make this happen (i.ei quit claim deed)?

Thank you very much.

Andy.

Answer

The situation is far more complicated than you understand. First off, how are you going to buy it on your own without your wife's money? Do you have an inheritance or some other source of cash that was not earned during the marriage? Do you intend to make payments out of some fund of money that you had before you were married? Once you put money you earn during the marriage into the house, the marital community earns an interest in the house. Is she going to make a gift of the house to you? A quitclaim would be PART of her making a gift of her community property to you, but it requires a written agreement or other document showing clear intent to give you any community property interest in the house. And even if she did that, it would have to include an agreement that she is making a gift to you of every payment on the house loan that comes out of money you earn. Lastly, you have an absolute legal obligation called a fiduciary duty to put your wife's economic interests on equal if not higher priority than your own for as long as you are married. You can only legally put yourself first once you separate with intent to divorce. So unless she just loves you so much that she wants to give away a whole house, you can't do this. And if she loves you that much, why would you be thinking about divorce?

Answer

I agree with Mr. McCormick. The modern trend in case law with respect to these types of transactions is that there is a presumption of undue influence, rather than a presumption that the property is your separate property. The burden is on you to show that you did not exercise undue influence, in violation of your fiduciary duty to your wife, to obtain her quit claim deed.

You would have to purchase the property with money that you could clearly show was your separate property. Money that you earn as income during your marriage is not separate property, despite the fact that it may come from your salary or wages. The quit claim deed itself may not be sufficient, because you would need either a deed or a separate writing that clearly shows her intention to transfer and give up any community property rights in the property, which is not provided for in standard quit claim deeds.