What Happens to the Family Home in a Divorce in Arizona?
Without a doubt, the most important asset you own is your home. Thus, it is also the biggest point of contention during a divorce procedure under family law in Arizona. As you may know, Arizona law considers all property acquired by the spouses after the marriage common property. This means that all the assets must be split between the parties in the eventuality of a divorce.
As any family law attorney can tell you, none of the parties is willing to give up such a valuable asset, unless you can offer another property of equal value in exchange. However, Arizona law protects each of the owners’ equity in their home, and the judge will make their decision based on several key aspects.
Here is what you need to know if you are involved in a divorce under Arizona law:
1. A Premarital Agreement Is Not Infallible
In recent years, many couples have become aware of the option to conclude a premarital agreement (also known as a prenuptial agreement). This legal document, signed before a notary public or family law attorney will determine which assets shall remain in each party’s ownership in the eventuality of a divorce.
However, a judge will analyze this document very carefully and may decide that it is not enforceable. Under Arizona law, a premarital agreement is null and void if:
- One of the parties is clearly at a disadvantage
- One of the parties did not execute the document of their own free will
- One of the parties did not receive a full disclosure of the other party’s wealth.
Thus, you should not rely on a premarital agreement to walk out of a divorce still owning your home. You should hire an experienced family law attorney to advise you and negotiate a fair settlement.
2. The Amount of Equity You Have in the Home Determines the Division
In some cases, you may have purchased your home before the marriage. However, once you married your spouse, it is deemed that they contributed to the mortgage payments, under Arizona law. This means that the house becomes common property, although the deed may be in your name.
However, by calculating how much you actually paid in mortgage rates before you got married will establish your accurate equity in the home. Therefore, the judge will apportion a higher percentage of the value of your home to you during the division of assets.
3. Selling the Home Is a Highly Probable Outcome
Your Arizona family law attorney will tell you from the start that, no matter what you may get at the end of the divorce, you will likely have to sell the marital home. Unless it is separate property (purchased and paid in full by you prior to the marriage), you will have to buy out your spouse of their share of equity if you want to keep the house.
This represents a large amount of money that you cannot raise within weeks or months after the divorce. Once you sell the house, the proceeds are spit according to Arizona law and you are free to pay off the rest of the mortgage and start looking for a new home to buy.
4. You Can Use the Home as Bargaining Chip
We mentioned earlier that, under family law in Arizona, you have to split everything you acquired during the marriage with your spouse. This also includes your retirement money. An astute family law attorney can calculate the value of your retirement fund and compare it to the equity your spouse has in the marital home.
If you were careful and set aside sufficient funds for your golden years, giving up your current house may be a smart move to protect your future.
A Family Law Attorney Can Negotiate the Best Settlement for You!
Arizona law does not allow you to decide what you want to keep when you divorce your spouse. However, with the assistance of a skilled family law attorney, you may walk out with a fair settlement, allowing you to move on with your life. Call us now!