Tillem & McNichol

Len Tillem and Rosie McNichol

Dear Len & Rosie,

When the housing market was down, I gave my daughter a down payment on a home.

Recently, her boyfriend moved in with her and he’s paying her rent that she uses to pay part of the home loan. Their relationship looks serious. I’m already anticipating a wedding.

If they marry, can he still pay her rent and not own half the home?


Dear Terri,

If your son’s boyfriend is paying the rent on time, and he’s helping around the house, then he may be a keeper. If they marry, it’s easy enough for them to agree that she owns the home and that he pays rent, but that’s not enough.

After they marry, each of their paychecks are community property owned by them 50/50.

Since anything acquired with community property is still community property, this means that the portion of the loan principal paid during the marriage is owned by both spouses, even if the home remains solely in your daughter’s name.

If they divorce, there could be a battle of accountants to determine how much of the home is hers alone, and how much of the home is owned by both of them together.

If there’s no written lease agreement, he could even argue that his payments aren’t rent at all. Your daughter may want to consider a prenuptial agreement.

If they get a prenup, your daughter can maintain the home’s status as her sole and separate property, despite his contributions to its purchase.

When she consults with a lawyer about doing one, her husband-to-be shouldn’t be at the meeting. In making a prenup, each prospective spouse must have his or her own lawyer and there has to be a mutual disclosure of all assets and debts.

The idea is that if you don’t know all the facts, you don’t know what you’re giving up by signing a prenup.

On the downside, prenups are not very romantic and sometimes prevent a couple from fully committing to one another.

And we have to ask: What’s in it for him? He may be reluctant to sign an agreement that could leave him with nothing if she divorces him after 30 years of marriage during which he spent his working life buy her a house.

If there’s to be a prenup, it has to fair enough to be agreeable to both of them.

Len & Rosie

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Len Tillem and Rosie McNichol are elder law attorneys. Contact them at 846 Broadway, Sonoma, CA 95476, by phone at 707-996-4505.