Getting a Divorce: Who Gets to Keep the House?

In a divorce, a couple’s property is also divided. Family homes are usually one of their significant assets, which must be sold or allocated between the spouses. When deciding who gets the house during a divorce in Arizona, your Prescott divorce attorney, Willison Law, PC, can help.

The state of Arizona is a community property state
A community property law requires divorcing couples to split their assets equally. Generally, Arizona considers a house acquired during marriage as community property. Most Arizona courts will divide the house equally, which may require selling the home and splitting the profits. Some circumstances, however, may make selling the home undesirable, either for economic reasons or due to one spouse’s needs or preferences. Courts may allow a spouse to keep the house by giving up cash or other assets in such cases.

When it comes to divorce in Arizona, the property is split 50/50, and the community estate is distributed equitably. After divorce, each former spouse owns half of what they once owned together and half of what he or she owns separately. The division of community property must be equitable, but shares will rarely be equally divided. Family law judges have considerable discretion when it comes to awarding property. If practicable, the court can divide assets and debts “in kind,” but it is not required to do so. Working with a family law attorney in Prescott will ensure this process is smooth.

After considering the evidence and the parties’ legal positions on disputed issues, the court uses its judicial discretion to determine a reasonably fair division of the marital estate.  An equitable division depends on the type, kind, and nature of the property. Is it an IRA? A service member’s military retired pay? The marital residence? A professional practice? Business goodwill?

There is no need to divide to the penny, and in-kind allocations should be reasonable. Would it be reasonable to split up the dining room set so that each spouse gets an equal number of chairs? However, the division of equity in real estate, bank accounts, and retirement accounts can be done precisely. Make a list of the assets and debts that are part of the “community” and those that are separate to prepare for property division.

In addition to commercial property and timeshares, community estate could include automobiles, RVs, copyrights, patents, cryptocurrency, virtual assets, family businesses, livestock, pets, investment appreciation, rent and profits, antique collections, and more.

What Is Separate Property?
Separate property belongs to only one spouse and is not divided upon divorce. Unless spouses agree, the court cannot order one spouse’s separate debt to be paid with the other’s funds.

During a marriage, a spouse may acquire separate property by gift, devise (with a will), or descent. Unless a divorce decree, legal separation decree, or annulment decree is entered, items acquired after service of the divorce petition are also considered separate property. After marriage counseling, for instance, divorce proceedings will be dismissed without a decree if the spouses reconcile.

Do separate properties acquired before marriage have to remain separate? No, but without something more, it cannot transform. A separate asset may become community property depending on how it is treated in the marriage. It is possible to retain a portion of an asset’s value while converting the remaining value into marital property.

How were both spouses using it? What were the circumstances? How did the owning spouse use it during the marriage? Each case is unique, and every asset must be carefully considered. The next step in determining equitable property division in a divorce is to follow the four-step process.

Four Steps to Arizona Property Division
The judge analyzes the couple’s accumulated property using the following four steps:

  1. Identification (of Assets and Debts)
    Identification is the first step in property division. Taking inventory is the first step in identifying assets and debts. Everything from bank accounts and vehicles to mountain bikes and patio furniture should be listed. Describe everything each spouse owns or has a legal or equitable interest in.
  1. Classification (as Separate or Community Property)
    All identified property must be classified as either separate or community property. Take the example of a couple who owns two vehicles. Before they married in 2016, the husband purchased a now-classic Mercedes-Benz for cash. A new Lexus was financed in 2018 for the wife’s primary means of transportation. As a result, the Mercedes-Benz is awarded to the husband as his sole and separate property. During the marriage, the community acquired the Lexus, which is part of the marital estate that must be divided.
  1. Valuation (of Assets)
    What is the community property worth?
    How do you determine fair market value? The spouses’ most treasured possessions are likely items of nominal value unless they are celebrities. Despite their value, family photographs, birthday party videos, and refrigerator art lack monetary value. What is the value of an adopted dog or a pet cat? It is best to divide items of sentimental value by settlement agreement – agree on a value and decide who gets them. (A pet custody plan can also allow you to spend time with your animal friends.)
  2. Division (of Community Assets and Debts)
    Assets and debts are divided in two ways. As a first step, the court awards each spouse their separate property. Secondly, the court divides community property equitably because each spouse has a half-interest in it. Since the court must consider many factors, an equitable division should be substantially equal. The law requires fairness, regardless of a spouse’s fault or marital misconduct.

Marital misconduct includes abandonment, adultery, domestic violence, and substance abuse or drug addiction – none of which are relevant to the Arizona divorce property division.

During discovery, your Arizona property division attorney must disclose all property interests so the court can allocate them appropriately. Prenuptial agreements, along with schedules and addendums, are also submitted.

Which Factors May Affect Who Gets the House?
In deciding who gets the house, several factors must be considered:

  • When was the home purchased, who purchased it, and where did the funds come from?
  • How the mortgage and other expenses are paid.
  • If you want to keep the house, are you or your spouse willing to give up other property?
  • Your spouse or you attempted to conceal, destroy, or damage other property.
  • Does the house have any children who would benefit from being raised there?

There are many times when an agreement can be reached that allows one spouse to keep the house.

After a Divorce Is Final, Who Stays in the House?
When you have children, the court usually allows the parent who spends the most time with them to remain in the marital home. You can ask your spouse to leave if you don’t have children but own the house. Unless one of you has committed domestic violence and the judge issues a restraining order, neither of you can force the other to leave a co-owned house. If your right to remain in the house is legally permissible, we will do all we can to protect it.

If You Have Already Moved Out, What Do You Do?
In a legal separation, if one party moves out voluntarily, the court will probably maintain the status quo unless there is a good reason for not doing so. A court might let you back in if you own the house, care for the children, or were the victim of domestic violence. If you are forced to leave a co-owned house, the police can provide you with assistance. In this situation, we can advise you and explore your options.

Finances May Influence Who Gets the Home
As long as the marital residence is community property, you may be able to negotiate a deal in which you buy out your spouse’s interest in it. There’s a possibility that you’ll have to pay your spouse’s share of the equity over time, along with mortgage, property taxes, and other expenses. The buy-out option can be discussed with you in detail if you are interested in learning more.

Agreements and Prenuptial Agreements
If a couple divorces, all property acquired during the marriage is considered “marital property” and subject to equitable distribution. In the event of a divorce, prenuptial agreements can specify what property will be treated as marital property and how it will be divided. Without an agreement, the court would make these decisions on your behalf.

A prenuptial agreement may be a good idea if you’re thinking about marriage and want to protect your assets in case of divorce. This is especially important if either of you have substantial assets.

There are no hard and fast rules regarding who gets to live in a home. In the event of an amicable divorce, a lawyer can help the spouses reach a written agreement. Mediation may be an option when a consensus cannot be reached.

Legal Assistance in Property Division
In the Arizona legal system, family law in Prescott, AZ, is one of the most intricate and complicated areas. It involves several crucial steps that require specialist knowledge and skill. Divorce lawyers in Prescott, AZ, are experienced and licensed to handle family law matters.

There are many complex issues involved in divorce, spousal support, legal separation, property division, paternity, child support, and custody and visitation disputes that require specialist knowledge and understanding. Clients benefit from Stephanie’s expert advice and communication.

Divorce property division can be a complicated and multifaceted process. Legal frameworks, state laws, financial considerations, and emotional factors all add to the complexity of this process. Individuals can achieve a fair and equitable property division by understanding the factors influencing it and employing effective strategies.

Despite the challenges of property division, it’s important to remember that it’s just one chapter of the divorce process. Individuals can navigate property division confidently and clearly when approaching it with knowledge, preparation, and emotional resilience.

If you live in Yavapai County, Stephanie Willison, a divorce lawyer in Prescott, has years of experience helping clients through their divorce, including expertise in property settlement negotiations.

Willison Law, PC

Willison Law, PC

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