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Selling a House During a Divorce

Posted on : February 9, 2016, By:  Christopher Hildebrand
Selling a House During a Divorce in Arizona

Selling a House During a Divorce in Arizona

Limits on Selling a House During a Divorce in Arizona

Arizona divorce courts often issue orders preventing a spouse from disposing of any assets of the community while the divorce is pending. The court’s divorce order divides the property between the spouses. In Saxon v. Riddel, 493 P.2d 127 (Ariz. Ct. App. 1972), the Court of Appeals considered whether a divorce court had the authority to order a spouse to sell her interest in real property before the final divorce decree.

Saxon v. Riddel | Arizona Court of Appeals

Dorothy Saxon and I. Saxon were married and lived in Arizona. In 1971, Dorothy filed an action for divorce against her husband I. The trial was set for a date in 1972, and the court issued an order preventing Dorothy’s husband from selling or giving away any of the couple’s assets. Dorothy, her husband, and his father all had interests in a mobile home park. A company called Mobile Home Communities made an offer for the park that Dorothy’s husband and his father considered advantageous, but Dorothy refused to sign off on the sale. Dorothy’s husband asked the divorce judge to order Dorothy to sign. When the court entered this order, Dorothy appealed.

Authority of Divorce Court to Order Sale of Property

Dorothy argued that the divorce court did not have jurisdiction to order a party to sell property in which she had an interest before the entry of the divorce decree. The Court of Appeals first reviewed the rights of a co-owner of property in Arizona to force the sale of the property against the wishes of another co-owner. At common law, the only way one co-owner could do this was by bringing an action for partition. The Court noted that the fact that the co-owners are married does not change this rule in Arizona. The state removed all of the common law limitations that applied to a married woman’s selling her property. Therefore, in Arizona, a husband does not have any greater right to convey his wife’s interest in real property than he would have if the couple were not married.

Next, the Court considered whether a pending divorce between the co-owners enlarges the right of one co-owner to force a sale. The Court discussed A.R.S. § 25-318, that allows a judge to order the sale of the property as part of a divorce decree. Since the judge in the Saxon case was not entering a divorce judgment when it ordered the sale, the Court found that this section was not applicable. It then considered A.R.S. § 25-315. This statute provides: “The court may make temporary orders respecting the property of the parties or the custody of the children of the parties, as may be necessary.”

The Court found that, under this statute, a divorce court could only “make temporary orders respecting the property” when it was necessary to preserve the couple’s interest in the property. For example, it could order the property sold if the community was about to lose it to foreclosure. The Court noted that this was the interpretation given the statute by the courts of Texas, which is the source of the Arizona law.

The Court found that that was not the situation in the Saxon case. It said, “there was absolutely no evidence to show that the real property involved needed to be sold to preserve any equities therein, or that it was in any danger of being materially injured, lost, removed, dissipated or wasted.” Since no statute authorized the divorce court to order Dorothy to sell her interest in the property during the pendency of the divorce case, the Court reversed the order compelling the sale of the property.  It should be noted the court may order the sale of the property when a final Decree of Dissolution of Marriage is issued by the court.

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