Moving Out of the House During a Divorce in Arizona
One of the first things people think about when they are considering or going through a divorce is whether one of the spouses should consider moving out of the house before or during a divorce in Arizona. Some people are under the misunderstanding that they will be judged as having abandoned their children or their spouse.
That is simply not true. However, there are many important things to consider before you decide to move out of the house during a divorce in Arizona.
The answer to whether you should or should not move out of the house depends upon a variety of factors. Domestic violence is a significant factor you should consider when deciding whether to stay in the house or move.
Whether you have children is another very important factor to consider before moving out of your house. Protecting your personal property is also another factor to consider. Your general peace of mind and well-being is another factor to consider. Let’s discuss each of these things you should consider before moving out of your house during a divorce.
Some people going through a divorce decide to sell their home during their divorce. You, however, need to know that a court cannot order a home to be listed for sale or sold during the pendency of your divorce case unless both parties agree to sell the home or the home may be in danger of foreclosure because you and your spouse cannot afford to keep up on the house payments pursuant the court of appeals ruling the case of Saxon v. Riddell.
Domestic Violence Consideration
There are things you can do to stay in your home if you are a victim of domestic violence. You can apply for an Order of Protection. The judge not only has the authority to order your spouse not to have any contact with you but he or she can order that you have the exclusive use and possession of your home. This means your spouse can no longer live in the home with you.
Typically, a person will obtain an Order of Protection and have that order served on their spouse by a police officer. Police officers will then stand by while your spouse collects personal items and leaves the home. Your spouse will be arrested and charged with the misdemeanor crime of interference with judicial proceedings if he or she violates the Order of Protection.
In some cases, the domestic violence is of such a high concern that a spouse believes he or she needs to live at an undisclosed location. In these cases, moving out of the home to an undisclosed residence can provide much more safety than an Order of Protection. Understand that an Order of Protection is simply a judge’s order that your spouse not have contact with you. It does nothing to stop that spouse from hurting you if he or she is intent on doing so.
Temporary Orders and Moving Out of the House
Going through a divorce is stressful. Continuing to live with your spouse when you are going through a divorce can increase that stress significantly. So, what do you do if your spouse will not move out of the house and you do not have a basis to obtain an Order of Protection?
The answer is to file a motion asking the court to issues temporary orders granting you exclusive use and possession of your home. Such an order will typically include an order requiring your spouse to move out of the house by a certain date. The only problem with asking for a temporary order granting you exclusive use and possession of the house is that it can take several months to have such a hearing schedule and such orders issued by the court in your divorce case.
Children and the Decision to Move During a Divorce
You will also want to consider the effect your move will have on your children and your relationship with your children if you move out of the house during a divorce. Most judges want to provide as much security and as few changes as possible in the children’s lives during a divorce.
This means your spouse will have an advantage on the child custody issues if he or she continues to live in the home and you choose to move to a new home. This is because the children are usually accustomed to their existing home, surrounding neighborhood, and community. However, these problems can be mitigated if you move to a new home that is relatively close to your current home.
Also, judges are more encouraging of parents sharing as much time as possible with each parent so long as it is in the children’s best interests to do so. If you do move, you should consider the proximity of your new home to your children’s school, extracurricular activities, and the home in which you and your children currently reside. You should also consider the proximity of your place of employment and your spouse’s place of employment when deciding where to move during your divorce.
Protecting Your Personal Property When Moving to a New Home
You need to make a plan to protect your personal property when deciding whether to move to a new home during a divorce in Arizona. There have been many situations where someone moves out of their house and leaves behind some property that is highly sentimental, like photographs of the children, are very valuable, such as jewelry. The spouses then claim the other spouse has possession of those items. If the judge has no idea who to believe, the chances of your recovering those items in your divorce decrease significantly.
As to all of the other property, it may be difficult to take furniture and other large items with you if you move out of the house. Although many couples work out the division of their personal property others fight about the division of their personal property. It can cost you more in attorney fees than the value of the property you and your spouse are fighting over.
Also, family court judges are not happy when two spouses want to litigate the division of their personal property. Some judges will simply order all of the personal property sold if the parties cannot agree on how to divide that property. Other judges simply order that each party retain the personal property in their respective possession. Such a ruling would leave you with only those items of personal property you took with you when you moved out of the house.
If you must move out of the house, you should take photographs of all of your personal property or, at least, as much of it as you can photograph. Those photographs can then be used by a personal property appraiser to reference when conducting an appraisal of all of your property to enable you to ask the judge to enter a judgment in your favor for an equitable share of the value of the personal property your spouse may keep if you move out of the house.
Common Questions About This Article
Question: Who pays the house payment if I move out of the house during a divorce in Arizona?
Hopefully, the spouses will agree how either or both spouses will pay the mortgage on the house. If they do not, the court can decide who will pay the mortgage on the house at a temporary orders hearing or the final trial.
Question: Will my spouse be awarded the house if I move out of the house during a divorce in Arizona?
It is more likely the spouse who does not move out of the house will be awarded the house if the other spouse moves out of the house during a divorce in Arizona. A judge is not required to award the house to the spouse who stays in the house during the marriage, it is simply more likely he or she will do so when one spouse moves out of the house.
Question: Can I force my husband or wife to move out of the house during a divorce in Arizona?
There are a couple of ways you can force your husband or wife out of the house during a divorce in Arizona. One way is to get an Order of Protection if an act of domestic violence has occurred. The other way is to request to be awarded the exclusive use and possession of the home as a temporary order of the court.
Contact us today at (480) 305-8300 to schedule your consultation with one of our Scottsdale Arizona divorce attorneys regarding Arizona divorce laws or any other Arizona family law matter.
Chris Hildebrand wrote this article about moving out of the house during a divorce in Arizona to ensure everyone has access to information about divorce in Arizona. Chris is a divorce 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 divorce should all be guided by the principles of honesty, integrity, and actually caring about what his clients are going through in a divorce.