Other Family Issues

questions & answers

Question: If we own a house together, and i wanted to keep the house after thedivorce, is it possiable? I work from my home and i have paid the house payments for the past 6 years.

Answer:

Assuming (1) that you and your spouse reside in Arizona; (2) that the house was purchased after you were married; and (3) you and your spouse do not have a prenuptial agreement; then, under Arizona law the house is presumed to be community property.  This means that  you and your spouse each own an undivided one half interest in the property.   Therefore, under these assumed circumstances, (and absent some other agreement between you and your spouse as to how to divide up your assets), in order for you to "keep" the house, you will likely have to pay your spouse his/her one half interest in the net value of the home.  You essentially will need to "purchase" your spouse's interest in the home.

If you used your separate funds to make some of the mortgage payments then you may be able to ask for reimbursement of those funds.  Separate funds are funds that you acquired prior to the marriage, or funds you received after the marriage but as the result of a gift, devise or inheritance.  Note: Income earned during the marriage is considered to be community property not separate property.  Therefore, under the circumstances assumed above, if you used your salary to pay for the mortgage, you are not entitled to a claim for reimbursement.  Also, note that in Arizona, if one spouse does use his or her separate funds to pay for a community obligation, it is presumed that the spouse gifted those funds to the community. 

If any of the assumptions above are not true, or if you believe you may have used separate funds to pay for the mortgage, it is highly recommended that you consult with an attorney regarding your rights/options.  Community property is a complicated area of the law and it is very fact dependent.   You also may want to carefully review the following Arizona statutes:

ARS § 25-211, Property acquired during marriage as community property; exceptions; 

ARS § 25-213, Separate property;

ARS § 25-214, Management and control;

ARS § 25-217, Ownership of property acquired after moving into state;