Introduction
When a couple gets a divorce, marital property gets split up. Depending on the state you reside in, the property can either get split up equally or equitably. When it’s split equally, each party gets half of the property and assets. Meanwhile, when it’s split equitably, the property isn’t split equally but in a manner that is deemed fair.
In Arizona, property is split equitably.
But what happens when the wife’s name is not on the deed during the divorce? Splitting the family home is a typical thing during divorce proceedings, so knowing how these assets would be split up in such a situation can save a lot of time and money.
Types of Property
There are two types of property. Marital property is property that is bought together during the marriage. Separate property is that which was bought before the marriage or was gifted to you by someone else, other than your spouse. Marital property is usually divided between the two parties.
Marital Property
If a couple bought a home together while married, this is considered marital property. If the wife’s name is not on the deed, it doesn’t matter. It’s still marital property because it was bought during the marriage.
This makes it marital property and is still split between both parties. The wife is entitled to receive either equal share or equitable share of the house.
Marital property also includes things like pension plans, 401ks, IRAs, and other retirement plans. These will be divided by the court in a way that is fair. The spouse who makes less usually gets a portion of these plans from the spouse who makes more.
Separate Property
The separate property does not get divided between spouses. For example, if a spouse owned a car before the marriage, that car does not get divided between the two parties. It is the sole property of the spouse who owned it.
The same goes for gifts acquired by one spouse, unless they were gifts given to him or her by their spouse. Also, personal inheritance is separate property even if it’s acquired during the marriage; and so is the personal injury money.
Separate property can become marital property. If separate property is mixed with the marital property during the marriage, it becomes marital property. For example, if the money that is separate property is used to buy a home, that money becomes marital property. And again, that home becomes marital property even if the wife’s name is not on the deed.
How Does the Court Determine Where Assets Go?
When determining how to split assets and property equitably, the court will take several things into consideration. These include the income and property of each spouse, the length of the marriage, children and who needs the home, loss of pension, among other things. They will also take into consideration whether the wife is a homemaker and has sacrificed her career in order to raise the children or for her husband.
The court can order that one of the spouses receives the house. The court will take into consideration who has the children and need for the house. The court can also order that the house be sold. However, if there are children, this can be held off until the children reach the age of maturity.
This can also happen if the safety of one of the spouses is compromised. The court can order that one of the spouses gets the house and the other spouse has to move out. If necessary, the court can issue an order of protection, stating that the spouse who is not residing at the house has to stay away from it. In the case of abuse, the court may rule that the abused party receives the house. However, the abuse must be violent and the abused spouse must be able to prove it.
The house may also go to one spouse if the other has refused to help support the family. If one spouse has spent above the family’s means, then the court may rule that the spouse who is not at fault gets the house.
Giving the House as a Gift
One party may also choose to gift the house to the other party in the divorce agreement. In this case, the party receiving the house takes on everything associated with the house. The receiving party takes on the mortgage and all of the financial responsibilities of the house.
Understanding the Value of Marital Property
All marital assets and property are split during the divorce agreement. If a wife’s name is not on the deed, it doesn’t matter as long as the house was purchased during the marriage. A purchase made during the marriage becomes marital property and therefore is eligible to be split. The wife then gets a share of the marital property, including the house, whether or not her name is on the deed.
Divorce is complicated but the law clearly states that all marital property gets split, whether equally or equitably. As long as the marital property was purchased during the marriage, it gets divided among the parties. Both names do not have to be on the deed for a house to be split between the two parties.
What to Do if You Believe You’re Entitled to Certain Assets
If you believe that you are entitled to assets or property that your spouse isn’t giving you, talk to your attorney. He or she will know whether it is eligible to be split. He or she will be able to explain to you the difference between marital property and separate property.
Remember that anything purchased before the marriage is separate property. This includes gifts given to the other party by anyone other than you, personal inheritance, and personal injury money. Marital property, on the other hand, is anything purchased during the marriage, such as a house.
As long as the property you believe you are entitled to is marital property, you will get a share of it. If your house was purchased during your marriage, whether or not your name is on the deed, you will get to split it.
This is because it is considered marital property. Anything bought within the marriage is marital property. Remember that marital property is eligible to be split between both parties. If you have any further questions about the differences between marital property and separate property, ask your attorney. He or she will be your best resource for answering these questions.
Call the Family Law Team at (480) 467-4348 to discuss your case today.