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Can A Divorce Force The Sale Of The Marital House

Phoenix AZ - Division of Property Attorney - Cohen Family Law

One of the most difficult issues to resolve in an Arizona divorce is who gets the marital home. When divorcing spouses cannot agree on the division of property, the court may intervene to force the sale of the marital house. The best way to protect your property rights is to work with an experienced divorce lawyer.

At Cohen Family Law, we regularly guide clients through all aspects of the divorce process, including the division of marital property. Whether you want to keep the house or you’re willing to sell it, our experienced legal team is here to help you. We are well-versed in the laws governing the division of property in Arizona and will work to protect your financial future. Contact our Phoenix office today for a confidential consultation.

How Will The Marital House Be Divided in Division of Property?

In a divorce, your marital house may be divided and possibly sold in one of two ways: by court order or by agreement with your spouse. Because Arizona is a community property state, the house must be divided evenly between the parties. However, splitting a house in half is not feasible, so the court will consider several factors to determine a fair distribution of the property.

A key factor is whether either spouse should retain possession of the marital house to allow a dependent child to continue residing there. If one of the spouses is granted primary child custody,  the court may favor giving that spouse the house so the child can keep living there, which makes a forced sale less likely.

Even if there are no minor children involved, the court must determine how the marital house is divided fairly. Ultimately, there are two possible outcomes for dividing the marital home:

  • The house is sold and the net proceeds – after paying off the outstanding mortgage balance, taxes, and other expenses – are distributed evenly between the spouses
  • The spouse granted primary custody of the child continues living in the house until their child graduates high school or turns 18, then the house will be sold and the proceeds divided 

When Will the Court Force the Sale of a Marital House?

If the spouses cannot agree on what to do with the house, the court can force a sale. To do so, the court must first determine whether the house is marital property. If the house was acquired during the marriage, it is considered marital property that must be evenly divided.

If one of the spouse’s owned the house before the marriage, it will likely be considered the separate property of that spouse. But, there is a catch. If both parties made financial contributions to the home, for example, to pay the mortgage or make home improvements, the house may lose its designation as separate property.

In any event, the court will need to determine the value of the house before it is sold to fairly distribute the proceeds as well as the other marital assets and debts. Once those assets are identified and valued, they will be distributed, and the court may order the marital house to be sold if neither party can refinance it in their own name.

Other Division of Property Options 

There are ways to avoid the forced sale of a martial house by the court in a divorce. One or both parties can request a partition or the spouses can agree to sell the house. A partition action is a legal proceeding in which the court determines how to dispose of real property when the spouses cannot agree on who should get the house. In other words, the parties are seeking a forced sale of the house. A request to partition the property must be part of the divorce filing for the court to consider such an action.

Given the time and expense involved in a litigated divorce, the spouses may be better off resolving how to divide the house outside of court, which may mean agreeing to sell it and split the proceeds. By working with a divorce attorney who knows how to negotiate a divorce settlement, you can make informed decisions about your marital home without court intervention. 

Contact An Experienced Arizona Divorce Attorney Today

A marital house is not only a significant financial investment but a home where children are raised and memories are made. When the marital relationship ends, deciding whether or not to sell it can be challenging. While the court may force the sale of the marital home, there are alternative solutions.

At Cohen Family Law, we are here to help you make the best decisions about how to proceed. Once you become our client, you will have comfort knowing that our capable divorce attorneys are on your side. Contact us today to learn about your options.

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