Section 852 was enacted to require that transmutations must be supported and established by some kind of written "express declaration" that is "joined in, consented to, or accepted" by the spouse whose prior interest in the property was "adversely affected." However, is this a valid transmutation for the purposes of a divorce? Family Code 852 sets forth what is required in order to create a valid and enforceable transmutation. But the the result is that a transmutation has occurred such that the home is no longer community property but instead is the separate property of the other spouse. In either situation the party taken off title may have no intention whatsoever to give up an interest in her separate property, certainly at least not for purposes of a divorce. However, either the refinance never happens and title is not changed back, or the refinance occurs and title is still not changed back. Then the spouse with the bad credit signs a quit claim deed with the promise of the other party to put their name back on title after the refinance occurs. Then one of the spouse's credit score is not good enough to qualify for the refinance. However, during the marriage it looks to the parties that there is an advantage to refinance the property. Unfortunately this is what commonly happens.Ī common situation is where a house is purchased during the marriage, and is in the name of both parties. Remember it is the intent as of the date of the alleged transmutation, not what one of the parties intended subsequently. However it is a critical part of family law issues due to transmutations occurring inadvertently when the parties did not intend to give up or waive an interest in property they owned before or during marriage. The foregoing is set forth in Family Code section 850.įamily law is woefully complex and transmutations make it even more so. from the separate property of one spouse to the separate property of the other.In family law, a "transmutation" is where spouses have changed the charcter and nature of a community or separate property, real or personal from separate property to community property or from community property to the separate property of one of the spouses. This is what is called a "transmutation" which is covered by Family Code Section 852. Then during the divorce, the party who has the property titled in their name claims that the house is their separate property and not community property. Now the issue arises where the spouses have changed title to a parcel fo real property by use of a quit claim deed. The exceptions consist of anything brought into the marriage by either party, anything inherited by either party, or any gift received by either party during the marriage. With some exceptions, anything obtained by the parties from the moment they say "I DO" to the moment the separate is part of the community estate and equally owned by the parties. Community property is ANY asset or ANY debt incurred during the course of the marriage. Before the issue of what a transmutation is and how a quit claim deed effects real property there must be a understanding of what community property is.
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