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Disclaimer Deed and Divorce in Arizona

Posted on : October 10, 2016, By:  Christopher Hildebrand
Disclaimer Deed and Divorce

Disclaimer Deed and Divorce in Arizona

The Scottsdale family law attorneys at Hildebrand Law, PC want to provide you with information regarding the restrictions on selling a home during an Arizona divorce. The Arizona Court of Appeals issued a seminal decision regarding the effect of signing a Disclaimer Deed signed in Arizona on a home purchased during an Arizona marriage in the case of Bell-Kilbourne v. Bell-Kilbourne.

The evidence at Trial established that the parties were married on February 15, 2000. The parties, thereafter, decided to purchase a home and chose to apply for a loan in Wife’s name only for the sole purpose of improving her credit score and because Husband had a poor credit rating. The home was, therefore, titled in Wife’s sole name as her sole and separate property.

Husband subsequently signed a Disclaimer Deed indicating he waived any community property interest in the home and confirming the home as Wife’s sole and separate property. The parties paid the mortgage with community funds throughout their marriage.

Jennifer, thank you for being my attorney. I could not have been more pleased with the outcome of my family court hearing. Everything you have done for me throughout this case reflects in the final ruling of the judge. You helped me keep my head together and taught me a lot about myself as a person. I learned so much about my life from observing and listening to you. I will take all the advice you gave me to continue taking responsibility for my choices, continue to put the kids' needs first, and always stay truthful. Your diligence, dedication, and persistence in my case made what seemed impossible, possible. You are a wonderful person and an amazing attorney and I am stronger and more confident because of you.
A Google User
A Google User
20:31 20 Sep 17
I just want to again thank the Firm for working with me all that it has. I could not have done anything without everyone's assistance. You, Chris and Stacey have been and continue to provide me with compassion and hard work towards my case. Also a very special thanks to Kip for taking my case in the beginning. Also continued support from him and his dedication to providing me with his expertise in this matter.
A Google User
A Google User
21:41 07 Nov 17
After interviewing several law firms, I came across Jennifer Shick, and her firm, who I hired to represent me for my Family Court case. Jennifer has extensive knowledge of the law and is determined to bring the truth to every issue involved within the case. Throughout my case, Jennifer was prepared meticulously as well as went above and beyond all of my expectations. Even when the other party tried to differ from the truth, lie to the Judge, and turn situations around, Jennifer remained attentive and provided substantial evidence to show the judge the facts as well as the proof to support what was the best interests of my children. Additionally, Jennifer helped me endure many difficult experiences, situations and inspired me to remain positive throughout the entirety of my case. Her kindness, compassion, and professionalism helped me through very difficult times and made the process feel a thousand times lighter on my shoulders. She truly has my children and my best interest at heart and I trust her perspective as well as her honesty on each and every aspect of my case. She lessened the burden on my shoulders and even when I felt like the case was not going to go in my favor, Jennifer was open-minded and reassured me that the Judge would, in fact, see the truth, which he did and the case went in my favor. After nine months of court, everything finally came together. I cannot declare how much Jennifer has been an outstanding attorney. She addressed each and every issue with diligence, she cares about her clients and their families. Jennifer genuinely cares about her clients and her dedication to the details of the case was remarkable. Overall, I am extremely pleased with Jennifer’s services and I am truly thankful that I was so blessed to have her represent my children and me. I highly recommend Jennifer as one of the best attorneys in Arizona and if the situation ever arises, I will definitely have her represent my children and me again.
Google User
Google User
14:58 04 Oct 17
Dear Stacey and Kip, How can I ever thank you enough for helping me through the most difficult time in my life? I couldn't put into words my heartfelt gratefulness. You both were so compassionate and professional at every given moment throughout this process with me. I thank you from the bottom of my heart. You helped me to regain my freedom.
A Google User
A Google User
16:03 22 Nov 17
I was a client of Attorney Kevin Park for the dissolution of a divorce in 2016. And since I had never had the need to hire an attorney before for any purpose, I was somewhat apprehensive of the process. But the very calm and professional demeanor of Mr. Park eased my fears. He adeptly answered all my questions and I clearly knew the process and what to expect. And the skilled manner he communicated with opposing counsel was perfect. When it came down to negotiating with my spouse’s counsel, I knew I had selected the best attorney for my situation. What I noticed and appreciated was that he was using just the right amount of pressure with opposing counsel as was necessary. If you find yourself in this situation, you will want a seasoned professional like Mr. Park on your side. I'm very grateful that he was my attorney and not the opposition!
A Google User
A Google User
22:14 28 Jun 17
Chris is a smart and aggressive attorney for his clients. Chris always tries to reach a fair settlement of his cases. I’ve represented clients when Chris was the opposing counsel and while he is professional and amicable to work with, he does not back off on what he needs to do for his client
A Google User
A Google User
18:16 18 Sep 17
Kevin Park of Arizona Estate Planning Attorneys was just what I needed for my divorce. He was very approachable and personable. He was quick to recognize what I needed and provided it quickly and efficiently. I hope to never need a divorce lawyer again, but if I know anyone else who does, I will definitely recommend Kevin.
A Google User
A Google User
19:22 23 Aug 17
I feel that Tracey Van Wickler is certainly one of the best family lawyers around. She is logical, intelligent, and truly cares. Tracey always does what is in the clients best interest, does it well, timely and with integrity. She is good at keeping her clients informed as to what is going on and clear in her communication both written and verbally. I have recommended Tracey to other people and will continue to recommend her. I recommended Tracey to someone who was having issues with their ex-wife and his response was, “I know how good she is because I went up against her and she ate me for lunch”. This same person was so impressed with her, he even recommended her to someone else, WOW, that is impressive! I am exceptionally happy with her attention to detail, her ability to explain things in ways that are easy to understand, as well as her ability to keep everyone focused on the most important things. I would recommend Tracey to anyone who may be in need of her services.
A Google User
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17:44 23 Jun 16
I retained Hildebrand Law after interview a number of firms in the valley. Working with Michael C. was incredibly easy and informative. My case progressed in such a organized and thought out way to ensure that my needs were met. Michael was incredibly proactive and was able to see far ahead into my case to steer clear of some roadblocks. I would not hesitate to recommend Michael Clancy, and Hildebrand Law in general, to anyone.
Bassam Ziadeh
Bassam Ziadeh
21:20 02 Apr 18
I have worked with Hildebrand law for about 8 years. They are always ready to serve, provide guidance and give you a few options. When they provide you options they also take the time to walk you through the pros and cons of each and give you a recommendation of what is best, but will listen to you and support whatever course you choose after making and educated choice. I’d recommend them to my closest friends and feel Chris Hildebrand is now a friend to me.
Larry Flint
Larry Flint
21:53 27 Feb 18
Despite the unfortunate situation I found myself in, Chris Hildebrand @ Hildebrand Law helped me maneuver every step with professionalism, expertise, and even a sensitivity that was an added bonus.Chris and his staff helped me even when I didn't know I needed the help. In other words. . . they made sure we did not leave anything undone. And in the rare instance we needed the expertise of another professional, Chris knew exactly who to recommend.Chris also knew, because of his experience, what to anticipate down the road of litigation. That meant we were better prepared to meet the challenges head on, which lead to a more equitable and fair outcome. I appreciated that Chris did his best to meet my every need in a timely fashion, even if I had a simple question that required only a phone call or e-mail or if we needed to talk face-to-face.I highly recommend Chris Hildebrand @ Hildebrand Law, PC.
Sam Franchimone
Sam Franchimone
22:09 12 Sep 13

The Arizona divorce trial court ruled that the evidence presented at trial clearly proved the parties’ intention at the time they purchased the home was that the home was to be community property and, further, that Husband did not intend to gift his community property residence to Wife as her sole and separate property.

Disclaimer Deed and Divorce Arizona.

Disclaimer Deed and Divorce Arizona.

The Arizona Court of Appeals analysis of the issue began with the rule of law in Arizona that all property acquired during a marriage in Arizona is presumed to be community property, pursuant to another appellate case; namely Rickenbaugh v. Deane. Thereafter, property acquired by either spouse during a marriage retains that character as community or sole and separate property throughout the marriage, citing the Arizona Appellate case of Honnas v. Honnas.

The Arizona Court of appeals referred back to its prior ruling in Bender v. Bender for the proposition that spouses are free to determine the status of their property during a marriage as either sole and separate property or community property.

The Arizona Court of Appeals concluded that Husband waived his community property interest by signing the Disclaimer Deed to the home. The Court specifically rejected Husband’s attempt to distinguish his case was different from the prior Bender case because community funds were used to purchase the home whereas separate funds were used to purchase the home in the Bender case.

Specifically, the Court held that the Bender decision was not based upon whether separate or community funds were used to purchase the property but, instead, the sole existence of a Disclaimer Deed signed by a spouse. The Court also noted that Husband had not claimed his signing of the Disclaimer Deed was the result of Fraud or Mistake.

The Arizona Court of Appeals specifically rejected the argument that the intention of the parties as to whether the home would be separate or community property did not matter and that the plain language of the Disclaimer Deed providing that the Wife was to take ownership of the property as her sole and separate property was to be enforced.

The Court also distinguished the prior Arizona Supreme Court’s ruling in the In Re Sims’ Estate case by ruling that held a trial court must determine the parties’ intentions at the time the property is acquired, as well as a demonstrating of contemporaneous conduct consistent with that intent. The court justified its distinction on the In Re Sims’ Estate case by pointing out that the husband in this case never had an interest in the home when it was purchased and, therefore, the requirement of Sims’ that contemporaneous conduct inconsistent with the intent to waive a community property interest in the home applied.

Wife rebutted the presumption that the home acquired during the marriage was community property by introducing the Disclaimer Deed into Evidence. The burden of proof then shifted to Husband to present sufficient evidence to establish a community property claim to the home.

 

Disclaimer Deed and Divorce in Arizona | Don’t Forget the Community Lien

Although the Arizona Appellate Court confirmed the home as Wife’s sole and separate property, it also concluded the community has an interest in the home as a result of the creation of a “community lien”, as a result of the community funds that were used to decrease the mortgage balance owed on the home and community funds used to make improvements to the home to the extent it increased the value of the home.

Arizona Disclaimer Deed and Divorce.

Arizona Disclaimer Deed and Divorce.

The take away from this case is that a spouse who signs a Disclaimer Deed to a home or other parcel of real estate presumptively waives their community property interest in that property. That spouse then bears the burden of proving that the signing of that Disclaimer Deed was the result of fraud, mistake or other evidence to establish the home was community property, such as a subsequent Deed titling the home back to the parties as community property.

The other take away was the recognition of the existence of a community lien against the home. Understanding that the community lien is not an ownership interest in the home but, instead, an unsecured community claim against the home. This community lien is not the equivalent of the amount of the payment made in the home but, instead, is only the extent to which the mortgage balance was decreased.

Also, the community lien is not the amount spent on the home to improve it but, instead, the extent to which those improvements increased the market value of the home. Even then, you should understand that community lien belongs to both Husband and Wife such that it will be equitably divided between both Husband and Wife, which likely results in Husband receiving only one-half of those amounts.

The Story May Not End There

The Arizona Court of Appeals in the In re the Matter of Flowers case held that although a sole and separate home was turned into community property during the marriage, a trial court may have the authority to award 100% of that home to the spouse who originally owned it as sole and separate property if it is equitable to do so.



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