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Divorce & Marital Residence

Sometimes one person in a married couple has poor credit, but they want to purchase a home anyhow. They end up purchasing it in the name of one spouse only, but use their joint funds to do so or end up paying the mortgage and other home expenses with joint funds. In a divorce, is it fair that the home be awarded to the person who holds the title?

A recent Arizona court case makes this practice a little more fair by giving the non-owner spouse 50% of the equity.

Help is on the way. A recent Arizona court case makes it clear that the equity in property purchased after marriage with community funds, where the community makes all the mortgage payments must be divided equally. The property itself is your spouse’s separate property because you signed a disclaimer deed. But you are entitled to 50% of the equity. This is because the community has something called a lien.

The lien is calculated as if it were titled in both of your names. Your ex will still be awarded the home, but not without your 50% equity being paid.

Yes. A court order is imposed automatically in every divorce action that precludes one person from selling community property. However it does not apply to separate property, even where the community has a 100% interest in the equity. If you find yourself in this situation, you should ask the court to order that the proceeds of sale be held in escrow until the court can make a distribution order.

Message from McCarthy Family Law​

McCarthy Family Law is a full service family law firm that services all family law issues. If you are going through a divorce or have questions about filing for divorce, we are here to assist you. Please call us at 520-623-0341 to explore your options. Turning Stress Into Solutions®.