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Can I Receive Credit for My Down Payment on Our Marital Residence in a California Divorce

Question: How can I prove my cash down payment towards the home I purchased before marriage ?

I’m going through a divorce. I purchased my home five years prior to getting married and then added my spouse to the title later on when I refinanced. She now wants half the equity. I put $200,000 cash down payment and then took a loan for the remainder of 275. I purchased my home in 2011.

Answer: Family Code 2640 provides the authority which allows you to receive credit for a separate property contribution to the community. When you bought the house, you were not married and so your down payment was your separate property.

You say you bought the house in 2011, you may wish to attempt to subpoena the bank records from the bank, or subpoena the escrow paperwork from the escrow company. If you look at your escrow paperwork from the purchase of the house toward which you made a separate property down payment, it should identify the amount of the down payment made from the separate property source (your money prior to marriage). Assuming you cannot locate the escrow documents, issuing a subpoena for it during the divorce case will be important. Not all escrow companies will keep documents for an extended period of time. Issuing a subpoena early on in the case may increase your chance of obtaining the information you seek. The subpoena process is pretty complicated. You may wish to hire a lawyer on a limited scope to help you with subpoenas. Once you have the escrow documents, look at the down payment amount. You can from there work backwards to show the amount of the down payment that was made from the separate property proceeds. If it came from a bank account, you may be able to obtain the bank statement via subpoena to the bank.