Property division in an Arizona divorce can quickly become more complicated than you initially thought. You and your spouse must decide who gets to keep each piece of marital property, no matter how large or small.
The marital home is usually one of the largest pieces of marital property that must be divided. Even if you and your spouse agree that one of you will keep the home, you may still face challenges.
Property division is ultimately decided by an Arizona court. This is true whether you have an agreement or are disputing how the property will be divided.
Community property
Arizona courts classify marital property as community property, which is all property acquired by you and your spouse during the marriage. Generally, property that a spouse receives through a gift or inheritance or property that is purchased after a divorce is filed is separate property.
Community property is divided equitably, or fairly. It is impossible for a home to be divided between two spouses. One spouse must usually keep the home and buy out the other spouse’s share or the home must be sold.
However, whichever spouse keeps the home must be able to afford the costs and upkeep of it. Therefore, a court could reject an agreement allowing one spouse to keep the home if there is evidence the spouse cannot afford it.
Can you afford to keep the home?
If you are the spouse keeping the home, thoroughly review your financial situation to determine if you can truly afford the costs associated with being the home’s sole owner. This might not be a decision you can make immediately.
Courts sometimes issue a temporary order requiring one spouse to contribute to the household expenses until your divorce is finalized. This can give you some breathing room to decide what should ultimately happen with the home.
In addition to affording the costs and expenses, you must have the ability to refinance the home to remove your spouse’s name from it. You can always choose to keep your spouse’s name on the home and continue living in it, but your spouse may not agree to that and it also goes against the purpose of a divorce which is to separate your two lives.
Other considerations
Your emotions and feelings are another factor to consider when deciding if you want to keep the home. Your marital home likely holds many memories of your marriage that you would rather move on from. Selling the home might be a better option to allow you to make a fresh start and not be reminded of the memories shared with your spouse.
Deciding who receives the marital home becomes more complicated when you and your spouse both want it. In that case, the court must decide.
There is no set formula that a court uses when deciding which spouse to award the home to. However, if one spouse already moved out while the divorce was pending, they may have a more difficult time convincing a court to award them the home.
Before deciding what to do with the marital home, it is best to know your chances of being awarded it by a court.