By Andy Yang, Esq. — California Family Law Attorney
When couples separate or file for divorce in California, one of the most immediate and stressful questions is:
“Who pays the mortgage while the divorce is pending?”
and
“Who gets to live in the house?”
The answer depends on California’s community property rules and Family Code provisions governing temporary property control and exclusive use orders.
1. Property Control Under California Family Code § 2040
When a divorce is filed, automatic temporary restraining orders (ATROs) under Family Code § 2040 take effect. These orders prevent either spouse from transferring, encumbering, or disposing of community property — including the family home — without the other’s consent or a court order.
In short, neither spouse can unilaterally sell or refinance the home once the divorce starts. But questions about possession and payment responsibility often arise during this period, and that’s where property control orders come in.
2. Exclusive Use of the Marital Home
Either spouse can request an order granting exclusive use and possession of the home under Family Code §§ 3800–3802 or § 6321 (Domestic Violence Prevention Act) if safety is at issue.
Courts generally balance the following factors:
- Each party’s need for housing stability (especially if children are involved)
- Financial ability to maintain the home
- The availability of alternative housing
- Whether continued co-occupancy is practical or potentially conflict-inducing
Exclusive use does not change ownership; it simply gives one spouse the right to live there temporarily until final property division.
3. Who Pays the Mortgage During Divorce?
Mortgage and property expenses are typically considered community obligations if the home is community property.
While the case is pending, courts often look at:
- Each spouse’s income and ability to pay
- The fair rental value of the property
- Whether one spouse is living in the property exclusively
If one spouse stays in the home, the court may order that spouse to pay part or all of the mortgage, or it may offset the payment against their share of community assets later (a concept known as a Watts charge or Epstein credit, based on In re Marriage of Watts (1985) 171 Cal.App.3d 366 and In re Marriage of Epstein (1979) 24 Cal.3d 76).
In practice, judges often try to balance fairness:
- The spouse living in the home may pay “carrying costs” (mortgage, property tax, insurance) minus an offset for rental value;
- The spouse not living there may receive a credit later during property division.
4. Practical Example: Balancing Fairness and Affordability
If the monthly mortgage, property tax, and insurance total $3,000, and the fair rental value of the home is $2,500, the court might order the spouse in the home to pay $500 per month (the “carrying cost difference”) while keeping records for later adjustment.
This ensures both parties share the burden fairly while protecting the property from foreclosure or loss.
5. Key Takeaways for Divorcing Homeowners
- Do not stop paying the mortgage unless the court modifies your obligation. Missed payments can damage both parties’ credit.
- Keep detailed records of who pays what. These will be essential when dividing property or seeking reimbursement.
- Request a property control order early in your case to clarify who has possession and who pays the bills.
- Consult an attorney before moving out or transferring title — these decisions can affect your long-term rights.
6. Need Legal Guidance on Property Control?
Disputes over mortgage payments and home occupancy can quickly escalate in a California divorce. The court’s goal is to maintain fairness, preserve community property, and minimize disruption.
If you’re facing a property control issue — whether you want exclusive use of your home or need to ensure the mortgage stays current — an experienced California family law attorney can help you request appropriate orders and protect your financial interests.
About the Author
Andy Yang, Esq. is a California family law and civil litigation attorney. He represents clients in property control, reimbursement, and related financial disputes in divorce and separation cases.