Divorce is one of the most traumatizing and difficult periods that any person can have in their life. Whether it was a relationship that lasted 20 years or 1 year, deciding you need a divorce in order to be happy and move forward with your life is not an easy decision to make.
One of the biggest challenges of a divorce (besides the emotional impact) is separating your life from your spouses. You not only have to figure out child custody and financial arrangements for your children, but there is also the division of marital property. While deciding what assets should go to who can seem obvious at times, there are big assets, such as the family home, that are much more difficult to determine. This holds even more true if only one person has their name on the mortgage.
If you and your spouse are thinking about a divorce or a legal separation you should strongly consider working with a divorce attorney. Working with an attorney will give you and your ex-spouse the best possible chance for success after the divorce is finalized.
Disposition of Property
ARS 25-318 describes the laws behind the disposition of property, assets, and the assignment of marital debts.
While you may not want to fight with your spouse over who gets the home, you may also not want to be in a situation where the court can order you to sell your property. This is especially true if your name is on the mortgage for the house. In such a case, you may be wondering what happens to the home if you are the only person whose name is listed on the mortgage.
Having the mortgage under a single name does change the dynamic of the property but only under a few different circumstances. What first needs to be understood is that any property purchased during the time when you are married becomes communal property, making it joint. This even includes if a mortgage is only put into one spouse’s name.
Property Purchased Before the Marriage
Should the property have been purchased before you were married than the law behind community property is not used to determine the division of the asset. In this case, it would be considered the property of the person who originally purchased the house, regardless of how long the two have lived in the home together. However, there are exceptions to this law.
If the home was purchased before the marriage existed, yet the spouse who’s name is not on the mortgage is responsible for a significant amount of mortgage payments, the judge may deem that they are entitled to the home. Typically in these situations, the amount paid by the spouse who is not on the mortgage would need to be greater than the total amount of the spouses name that is on the mortgage.
The best way to determine who gets the home would to be to work with a skilled divorce attorney and try to settle it out of court. If the two parties are unable to come to a decision on their own, then the judge will decide who receives it, or may just choose that the property needs to be liquidated. This is referred to as a quit claim deed.
Seek the Legal Counsel of a Divorce Attorney
Because the legal system can be rather complicated we strongly recommend that you seek the assistance of an attorney. The last thing you want is to get cheated in some way as part of your divorce, so seek the assistance of somebody who understands the laws and how they should be properly applied.
It is also important that if you are taking out a mortgage during your marriage, you consult an attorney about this as well. You may be thinking you are getting ownership of that house on your own, but that is likely not the case.
Call the Family Law Team at (480) 467-4348Â to discuss your case today.
