Who keeps the house in an Arizona divorce

In an Arizona divorce, the marital home falls within the scope of community property when spouses acquired the home during the marriage. Typically, an Arizona court will divide the equity value of the house equally between the spouses. This may require selling the property and splitting the net proceeds. However, this can change if a spouse acquired the home separately from the marriage.

Is Arizona a Community Property State?

Arizona is a community property state. The community property doctrine stipulates that all property acquired by either spouse or both spouses during the marriage is the joint property of both spouses. In a divorce under the community property system, all community property gets divided roughly equally between the spouses.

What Happens If the House Was Purchased by One of the Parties Before the Marriage?

Typically, property owned by a spouse before marriage is separate property rather than community property. A spouse has no interest in the separate property of the other spouse. If a spouse moves into a home that their new spouse already owns, the moving spouse may have no interest in the home in a divorce. A spouse can also acquire separate real property during the marriage by inheriting it or receiving it as an exclusive gift.

However, a spouse who owns separate property during the marriage can convert it into community property by combining it with other community property. For example, spouses may make mortgage payments on a separately owned home with funds from a community property bank account. In that case, a court may find that some or all of the equity in the house has become community property.

Will the House Be Sold?

In a divorce in Arizona, spouses may sell their marital home either as part of their settlement agreement or according to the court’s divorce judgment. Because both spouses jointly own a house that qualifies as community property, each spouse has the right to half of the net equity of the home. The easiest way to ensure each spouse receives their share of the property’s equity involves selling the home and dividing the net proceeds of the sale.

What If One of the Parties Wants to Stay in the Family Home?

Sometimes, one spouse may want to stay in the family home. A couple may agree to keep the marital home to provide stability for their children. If a couple decides to keep the family home, the spouse who moves out of the house should receive compensation for their share of the home’s equity.

The spouse staying in the home must “buy out” their ex’s equity share. They can do this by agreeing to give their ex other marital assets of equivalent value, such as equity in other real property, vehicles, investments, or cash. A spouse can also buy out their ex by refinancing the home, which usually occurs when the couple still has a mortgage on the property.

The spouse vacating the home will want their name taken off the mortgage. The spouse staying in the property will obtain refinancing from the bank, which may include money to buy out the departing spouse’s share of the property.

Can a Spouse Kick the Other Spouse Out of the House During a Divorce?

Under Arizona’s community property law, a spouse may not force their other spouse to vacate a marital home acquired by either spouse or both spouses during the marriage. As community property, the house belongs to both spouses.

However, a house owned by a spouse before the marriage or given to a spouse before or during the marriage as an inheritance or exclusive gift is considered that spouse’s separate property. In that case, they have the right to evict the other spouse after filing for divorce.

A spouse may also seek to evict the other spouse from the marital home during divorce if the couple has a history of domestic violence or one spouse has abused any of the couple’s children. A spouse may ask the court to issue an emergency protective order, which can force the other spouse to vacate the marital home for 24 hours to a few days. The emergency protective order can grant a spouse exclusive possession of the marital home until they can obtain a temporary order that can last for the duration of the divorce proceedings.

What Is an Order of Protection?

An order of protection prohibits a person from contacting or approaching the person who takes out the order. A court can issue an order of protection in cases of domestic violence or alleged child abuse by a parent or guardian. When a divorcing couple has a history of domestic abuse, one spouse may obtain an order of protection from the court to remove the threatening spouse from a community property marital home. The order will typically last until the divorce is finalized, with the divorce order determining how the house will be divided.

Who Is Responsible for the Mortgage and Utilities While One of the Parties Is Living in the House?

In most cases, the spouse who remains in the marital home becomes responsible for paying the mortgage, real estate taxes, utilities, and maintenance costs. This is often true once the divorce becomes finalized and the spouse buys out their ex’s interest in the property. However, a divorcing couple may reach a different arrangement – especially while divorce proceedings remain pending. For example, the spouse who leaves the house may agree to continue covering house expenses via alimony payments.

Contact an Arizona Divorce Lawyer

If you are considering filing for divorce or are already in the process, get the experienced legal representation you need to protect your financial rights. Contact Mushkatel, Robbins & Becker, PLLC today for a free, confidential consultation with an Arizona divorce lawyer about your legal options.

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About the Author

Zachary Mushkatel

Zachary Mushkatel discovered his affinity for the law by chance. As a political science major at the University of Arizona, he first aspired to become a professor. But an unexpected invitation to participate on a mock trial team at the university encouraged him to turn his competitive spirit and drive…