If you’re married, your home probably represents a lot of hard work and treasured memories. You may have had plans to grow old there, and maybe even pass it down to your children. These plans can become derailed when one or both spouses decide they want to end the marriage through divorce. But selling the home is often favorable to alternatives like spending thousands of dollars fighting over the home or losing it due to not being table to afford it on a single income. There are many ways to approach selling a home due to divorce. It may be difficult to figure out the best for your situation without input from an experienced family law attorney. Our Phoenix and Tucson divorce lawyers can evaluate your potential divorce case and help identify the best legal strategies possible. When you’re ready to speak with an affordable and experienced Arizona divorce lawyer, call 480-263-1699 to schedule your free consultation with our firm.
How Does Community Property Work In Arizona?
In some rare instances, a married couple may live in a home that is entirely the separate property of one spouse. But in most cases, at least some share of the house is community property. Although evicting a spouse, even from a separate property home, is unlikely during divorce, if the home is community property, it also can’t be sold, transferred, etc. This is due to the preliminary injunction, which is explained below. But first, it’s important to understand what a community property asset is, to understand when the preliminary injunction applies.
Arizona’s community property statute is A.R.S. § 25-211. All assets and debts acquired during a marriage are considered community property, unless one spouse receives a gift or inheritance. That means that both spouses can be responsible for anything from the community estate, regardless of whose name the asset or debt is in. Income counts as community property, and is usually what is used to make mortgage payments on a home. So even in a single-income household, the house- or all equity gained after marriage- is part of the community estate that must be split during divorce. However, during property division, spouses can negotiate for shares of assets to avoid having to sell an asset. For example, one spouse may “buy out” their spouse’s share of a marital home by offering to abandon community assets like retirement savings and valuable items like cars, boats, and artwork. A spouse can also offer to pay community property debt to buy out the other spouse’s share of a community asset. However, a spouse accepting this type of arrangement should be aware of the risk of the other spouse declaring bankruptcy and creditors pursuing them, as they are not bound by family law orders.
Filing For Divorce & The Preliminary Injunction
In Arizona, one spouse, or the petitioner, files a petition for dissolution of marriage in court and has it served on the other spouse, or the respondent. The respondent has a certain amount of time to file a response either disagreeing with some or all of the divorce petition, or consenting to its terms. Failure to respond is considered a default, and an agreement with the divorce petition as is. Because the petitioner clearly knows about the divorce the moment it is filed, that is when they receive notice and become bound by the preliminary injunction. The respondent is bound by the preliminary injunction after they have been served with it, which must be completed by a deputy sheriff or a licensed process server.
So what exactly is the preliminary injunction? It is defined under Arizona law by A.R.S. § 25-315. An injunction is a type of legal order preventing a party from doing something. What the preliminary injunction prevents is a spouse in an active divorce case from selling, transferring, or otherwise disposing of a community property asset. The spouses can agree in writing to sell an asset without violating the preliminary injunction. The statute also makes an exception for a spouse who needs to sell an asset to be able to afford the necessities of life or reasonable attorney’s fees.
Clients’ Questions Answered
How can one spouse show that the other spouse violated the preliminary injunction by selling a community property asset?
If a party to a divorce has discovered their spouse has sold an asset in violation of the preliminary injunction, they should inform their attorney as soon as possible. They can inform the judge and request means of redress for their client. If the other spouse claims they sold the asset to pay for living expenses or attorney’s fees, financial documents may need to be requested to show that there were other funds available to pay those costs.
What are the penalties for violating the preliminary injunction?
In Arizona, violating the preliminary injunction during divorce can be considered interference with judicial proceedings, or a criminal offense under A.R.S. § 13-2810. The statute defines this offense as a class 1 misdemeanor. Per A.R.S. § 13-707, the maximum jail sentence for a first-time class 1 misdemeanor offender in Arizona is 6 months. Per A.R.S. § 13-802, the maximum fine for a class 1 misdemeanor is $2,500.
Besides financial factors, what are the advantages of selling a marital home during divorce?
The safety cushion of half of the equity from a home sale is undoubtedly a huge benefit to selling a marital home during divorce. It adds another layer of finalization to what may have already been an emotionally tough and stressful journey. If the alternative to selling the home would be to fight over it in property division, the spouses can save themselves time and a great deal of stress and attorney’s fees with a home sale.
If our divorce orders mandate that we sell our home, when must this be completed?
The divorce orders may contain a specific deadline by which the marital home should be sold. Spouses who divorce by consent decree can choose their own deadline in the orders. If no specific deadline is given, it must be done in what is considered a reasonable time frame.
Who pays for the house’s costs during the home sale?
The judge may issue temporary orders that dictate who is responsible for expenses like the mortgage, utilities, and landscaping on a home while a divorce is being finalized. These orders have no bearing on what is determined in the final orders. Often, whoever was responsible for these expenses during the marriage will continue to be responsible for them while preparing for a home sale during divorce.
Protect Your Assets & Legal Interests in Divorce with Our Arizona Family Law Firm
Owning your own home is becoming more and more rare, and divorce is a common experience that can push spouses back out of home ownership. The funds from the sale of your marital home will likely be a huge part of setting up your new post-divorce lifestyle. A family law judge won’t give you a pass because you failed to prepare or hire a divorce attorney. But you can pursue divorce and a home sale with guidance from an experienced professional for less than you may think. Our firm’s staff and Arizona attorneys are skilled and care about the outcomes of our clients’ cases. Speak with a member of our team today by calling 480-263-1699 to schedule your free consultation.
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