If I Leave The Marital Home During A Divorce, Do I Forfeit My Interest In The Home?

You probably didn’t get married with the intention of getting divorced, but divorce is an unfortunate reality for about half of the married couples. The largest asset that most married couples share, if they have one, is their marital home. That can make it a huge point of contention during property division. That can beg the question of whether or not you should stay in the marital home while your divorce proceedings are pending. If you are considering divorce, the best way to know your rights is by speaking with an experienced divorce attorney in your area. To speak with a member of our Arizona family law team, call 480-263-1699 and schedule your free consultation today. 

Divorce process with an Arizona divorce lawyer

Arizona Is A Community Property State

Many states in the United States divide marital property using the legal doctrine of equitable distribution. Instead of equitable distribution, Arizona follows the doctrine of community property. In community property states, almost everything that a married couple acquires after the wedding (but before filing for divorce) is considered community, or marital, property. This includes salary and wages, 401(k) and retirement account contributions, rental income, and more. Property acquired by inheritance, gift, or devise during the marriage is the recipient spouse’s own separate property. Property acquired during the marriage and after the divorce petition has been filed is also that spouse’s separate property. It is also important to remember that debt is considered property when it comes to property division in a divorce and will be distributed in the same way as any other property. These rules apply in every part of Arizona, from the East Valley To The West, Maricopa County to Tucson, and more.

Mixed Status Property

It is possible for a home to be considered both separate property and community property. One common way this happens is if one spouse puts a down payment on a home and pays off some of the balance before getting married, and then continues to pay off the mortgage with their income after the wedding. Here, the down payment and all mortgage payments made before the wedding will be considered the purchasing spouse’s separate property share. Because a spouse’s income during the marriage is considered community property, payments made after the wedding will be considered a community property share. So, let’s say that a marital home is worth $500,000. One spouse put 20% down on the home and paid off an additional 5% before getting married, giving them a separate property share of 25%. The rest of the home was paid off during the marriage with each spouse’s income, so the community property share is 75%. That would entitle the purchaser’s spouse to 25% of the home, or $125,000, plus half of the community share, or $187,500, for a total of $312,500. 

If I Move Out, Does My Spouse Get The House?

Living together while finalizing a divorce simply isn’t an option for some couples. While this is the clearest way to show the court that staying in the marital home is important to you and to make sure that your possessions are safe while the divorce is pending, it can also be tense or even tumultuous. If the spouses share children, they can be negatively affected by arguments in the midst of a divorce. And in very unfortunate circumstances, there may be domestic violence present, and possibly protective orders, making it impossible for the spouses to live together while the divorce is pending. 

If you can stay in the family home during the divorce, it’s the best way to keep your spouse from making undesirable changes, like painting the walls purple and switching out your appliances for older, less functional models. But if you have to move out, you won’t lose your financial interest in the home. There is nothing in Arizona’s community property laws that suggests that a spouse who moves out during a divorce loses all of their share of the equity gained throughout the years of their marriage. The judge may still choose to award the marital home to a spouse who temporarily leaves it during divorce, based on that family’s unique circumstances. 

How Long Can I Stay In the Home?

Even if your spouse holds a separate property share in your marital home that is larger than the community property share, that doesn’t mean that you are instantly kicked to the curb once either of you decides they want a divorce. At the very least, a live-in spouse has tenancy rights, and can’t be suddenly evicted. In most cases, a spouse who doesn’t keep the home in the divorce will have the right to stay there until the divorce is finalized. The spouses will also need to move out of the home if they sell it before the divorce is finalized. 

Who Pays The Expenses If I Move Out During The Proceedings?

Moving out of the marital home might not eliminate your obligation to pay the mortgage, utilities, and other expenses related to the property while the divorce is pending. If a spouse who is the primary breadwinner moves out of the marital home during the divorce, the judge may issue temporary orders for that spouse to continue paying household expenses while the divorce orders are finalized. Under these circumstances, that spouse should think twice before moving out of the marital home. Paying the expenses for two households, on top of all of the other expenses associated with a divorce, could create unmanageable debt and a dire financial situation. 

Factors That Influence Who Keeps The Home In An Arizona Divorce

One of the first factors that must be examined in deciding who will keep the marital home is whether or not the spouses can afford not to sell the home in the divorce. If one spouse gets to keep the home, the other spouse must be compensated equally through other marital assets, such as cars, bank accounts, stocks, and more. If there aren’t enough marital assets to make that possible, and neither spouse agrees to concede on their share of the marital home, it will probably need to be sold in the divorce. If one spouse has a considerable separate property share in addition to their community property share, it is more likely that they will receive the house in the divorce, if the spouses can afford not to sell it. The judge may also consider if one spouse will have primary physical custody of shared minor children after the divorce. Judges prefer to make decisions that prioritize children’s best interests, and uprooting their lives as little as possible during a divorce is usually in their best interest. But this might not be possible if the spouses don’t have enough assets, will split custody, or if the parent who won’t have primary physical custody has a majority separate property share in the house. 

Do I Need A Phoenix Divorce Lawyer?

The instances in which a divorce lawyer’s costs will outweigh their benefits are few and far between. Even when the spouses are amicable and agree upon all issues, an Arizona divorce lawyer can make sure that all the necessary documents are drawn up correctly and in a way that is most efficient for everyone involved. But if you’re reading this article, it’s probably because you and your spouse both wish to keep the marital home in the divorce. Hiring a divorce attorney will put you on a level playing field with your ex if they have retained divorce representation, and give you an advantage if they haven’t. 

If you’re looking for a divorce attorney in the Chandler, Gilbert, or Mesa area, our team may be the perfect fit for you. AZ Family Law Lawyers is not only knowledgeable and persistent but compassionate and understanding of our client’s situations. We understand just how important it is for your family law orders to comport with your lifestyle after a divorce, custody battle, or any other family law matter. An experienced divorce lawyer will protect your interests, whether that means negotiating for you to keep the family home or vying for another asset you hold dear. We can also handle a variety of related family law matters so that you don’t have to seek out multiple legal professionals for your needs. When you’re ready to schedule your free appointment to speak with one of our Arizona divorce attorneys, call 480-263-1699.

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