Often, one spouse brings into the marriage a home previously purchased and titled in his or her name, and with a loan attached. The home is the lender’s security for payment of the loan. After the wedding, the homeowner’s spouse moves in with the homeowner, and together they pay down the loan principal with community property earnings.
At some point bliss unravels, and the couple decides to separate. They agree that the spouse with title to the home will continue to reside there and the other spouse will move out. Neither party rushes to the courthouse to file for divorce, although eventually a divorce petition is filed, perhaps years after the date of separation. Post-separation, the spouse holding title continues to live in the home and makes all of the post-separation mortgage payments with his or her separate property earnings.
One of the questions answered by the appellate opinion in Marriage of Mohler* (“Mohler“) is whether a spouse bringing a mortgaged home into the marriage, and then paying down the mortgage loan principal with community property funds during the marriage, can be charged rent by the community estate while living there after the parties separate. The short answer is yes, surprisingly.
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