Should You Keep the House in a Divorce in Arizona
People facing a divorce or legal separation often ask the question: “Should I keep the house in a divorce in Arizona?”
The answer to that question depends upon a lot of different factors.
The decision you make regarding staying in the home or moving from your home during a divorce may have a big impact on your case and how issues in your case are decided by a judge.
A judge in an Arizona divorce is required to equitably divide all community property; although not necessarily in kind. This means the court has to equally divide the value of all of the community property but does not necessarily have to divide each particular asset equally.
For example, it is impossible to equally divide a house. Instead, the house is either sold with the parties equally dividing the proceeds from the sale of that home or the judge awards the house to one of the spouses and then gives the other spouse other property that equals the equity in the home.
Things to Consider About Keeping the House
The first thing to consider whether you should keep your house in a divorce in Arizona is whether you have children. If you have children, those children are already settled into their home, their friends, their neighborhood, and their school. Judges understand divorce can have a negative impact on the children.
Most judges do not want to create more change in the children’s lives by having them move from their current home to a new home. So, moving from your home during a divorce in Arizona could negatively affect the amount of time you spend with your children. However, parents who share equal parenting time with their children will not be impacted by this decision.
Cost of Living if You Keep the Home
The next thing to consider is the costs of living in the home. Specifically, can you afford to continue living in the home? Regardless of your finances, you can ask the court to issue a Temporary Order requiring your spouse to contribute to the monthly expenses associated with the home until such time your case ends in a divorce or legal separation.
Your other option is to seek reimbursement for the expenses you paid for the house at your final divorce trial. The court has the authority to order your spouse to reimburse you for payments you make on a community property debt, such as a mortgage.
If only one spouse wants to keep the house in a divorce in Arizona, the home will almost always be awarded to that spouse. However, there will likely be conditions on the award of the house to the spouse who wants to keep it after divorce. For example, a spouse who wants to keep the house after an Arizona divorce should be prepared to refinance the home to remove the other spouse’s name from the mortgage on the home.
If the house is not refinanced some pretty unfortunate things can occur. One thing that can occur if the mortgage is not refinanced is that it will be included on both spouse’s credit reports and, therefore, may prevent the other spouse from purchasing a new home.
The other problem that occurs if a home is not refinanced is the opportunity for the spouse who kept the home to damage his or her ex-spouse’s credit by failing to make timely payments on the house.
Interestingly, the court does not, absent an agreement of both spouses, have the authority to order a spouse to refinance a mortgage, pursuant to the case of Lee v. Lee. Although that may sound like a good way to keep your spouse on the hook for the mortgage if the house is awarded to one of the spouses, it typically will not work because the judge will simply order the house to be sold if the spouse who wants to keep the house does not volunteer to refinance the mortgage.
Other Considerations About Keeping the Home
Your safety is another concern to consider. People who have been victims of domestic violence may be better served by securing a new residence and keeping their address information confidential. The court has the authority to order your contact information, including your new home, be confidential to protect you from an abusive spouse.
Another important consideration is whether you want to be awarded the home in your divorce. If you do, it doesn’t make sense to move out of the home only to try to move back into the home when your divorce is final. In fact, it is very unlikely the court will award you the home if you moved out of the house during your divorce if the other spouse claims he or she wants to be awarded the home and he or she still lives in that home.
We often encourage our clients to reach an agreement to sell the home in a divorce or legal separation case. The reasons for selling a home in a divorce are less legal and more emotional. We have found that our clients’ who sell their homes are much more comfortable not having the constant reminders of the memories they have and are reminded about when they keep the home.
If you decide to move from your home during a divorce, you should take personal property that is particularly valuable or sentimental with you when you move. It may be difficult to get those items back after a divorce is filed. Most judges are not happy if you try to litigate the division of personal property at a divorce trial. Some judges will actually order the sale of all of your personal property if you and your spouse cannot resolve the issue of the division of your property before trial.
What Happens When Both Spouses Want to Keep the House in a Divorce in Arizona
Things get a lot stickier when both spouses want to be awarded the house. Although Arizona laws do not allow child custody decisions to control who is awarded the house when both parents want to keep the house after an Arizona divorce, the reality is a judge is more likely to award the home to the parent who has a majority of time with the children in his or her care.
So, what happens if the parents have an equal parenting time schedule? In that case, there is really no compelling way for the court to choose which parent should be awarded the home in an Arizona divorce. One way to break a deadlock between parents is to have them bid against each other until one of the spouses concedes. This isn’t a very cordial approach to deciding who gets the house, but the parents are probably embroiled in a contentious divorce anyway if they cannot agree on who will keep the house after the divorce.
Pros and Cons of Keeping the House in an Arizona Divorce
As a divorce attorney with over 24 years of experience, I would ask why do you want to keep the house after the divorce. Although not legal advice, I suggest every client move to a new house and away from all of the memories, good and bad, attached to the marital home.
That approach, however, is admittedly a little short-sided because it doesn’t consider the impact a move will have on the children. Providing stability for the children by keeping the house in a divorce may or may not be a compelling reason to keep the house in your divorce.
You will also want to consider whether the house is too expensive for you to keep. Most couples can afford much more of a house payment than either parent on their own could afford. Finances may, therefore, dictate who keeps the house in a divorce in Arizona.
If you have questions about if you should keep the house in a divorce in Arizona, you should seriously consider contacting the attorneys at Hildebrand Law, PC. Our Arizona divorce and family law attorneys have over 100 years of combined experience successfully representing clients in divorce and family law cases.
Our family law firm has earned numerous awards such as US News and World Reports Best Arizona Family Law Firm, US News and World Report Best Divorce Attorneys, “Best of the Valley” by Arizona Foothills readers, and “Best Arizona Divorce Law Firms” by North Scottsdale Magazine.
Call us today at (480)305-8300 or reach out to us through our appointment scheduling form to schedule your personalized consultation and turn your divorce or family law case around today.
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Chris Hildebrand wrote the information on this page about keeping the house during a divorce in Arizona to ensure everyone has access to information about divorce laws in Arizona. Chris is a family law attorney at Hildebrand Law, PC. He has over 24 years of Arizona family law experience and has received multiple awards, including US News and World Report “Top Arizona Divorce Attorneys”, Phoenix Magazine “Top Divorce Law Firms”, and Arizona Foothills Magazine “Best of the Valley” award. He believes the policies and procedures he uses to get his clients through a child custody case should all be guided by the principles of honesty, integrity, and actually caring about what his clients are going through.