Along with determining child support payment calculations, child custody and visitation schedules, the possibility of spousal support, and the other legal aspects of a divorce, many spouses feel overwhelmed regarding the decision to divide their real estate property during their divorce. Both spouses have a legal right to an equitable distribution of property under Arizona law, however, getting to that end goal can prove to be legally complicated and financially complex. Consider visiting with an experienced divorce attorney at My Modern Law to help you better understand your legal rights regarding all aspects of your divorce.
The Division of Property Within a Divorce
If a couple is in the process of a divorce, emotions are often running high. The parting with a home that contained memories of the family for years or decades can prove psychologically devastating. The division of real estate property in a divorce is much more than a financial transaction. As a result, one or both spouses may approach the division of this asset with much more emotion than they would a bank account that can be easily calculated and divided without sentiment. The determination regarding the division of property within a divorce will depend on several factors including such things as when the real estate was purchased, how it was titled, and what the current value of the property is at the present time.
Determining the Value of Real Estate Property For a Divorce
Making the determination of what real estate is actually worth can be a complex process. If the division of real estate is involved in a divorce, it is critical that an independent expert value the property to ensure that both spouses receive the correct amount of compensation under the law. Because many people feel an emotional and sentimental attachment to their home, they may not want to consider that it is actually worth less than they believe. Visiting with an experienced real estate appraiser, such as Jeffery Hall can help remove the emotion from this complicated financial transaction.
Ownership and Real Estate Property
Along with making a determination of the actual financial value of the real estate, couples seeking a divorce must also evaluate the actual ownership rights to a piece of real estate property. Real estate property held by one or both spouses may be considered community marital property (both spouses have a legal right to a portion of the property) or individually held property (only one spouse has a legal right to the property).
Community Real Estate Property in Marriage
In most cases, unless real estate was already held prior to the marriage, inherited by one spouse during the marriage, or subject to a prenuptial agreement, any property, and real estate purchased during the marriage with marital funds will be considered community property. Even if the property is held in one spouse’s name prior to the marriage, if marital funds contributed to the upkeep or renovation of the property, both spouses may have a legal claim to the real estate. The division and ownership of real estate within a marriage can prove legally challenging and visiting with an experienced divorce attorney from My Modern Law can help ensure your legal rights remain protected throughout the process.
Individual Ownership of Real Estate Property in Marriage
There are some circumstances where only one spouse will have ownership of real estate property in marriage and it will not be considered part of the marital estate. Some examples will include property covered by prenuptial agreements, or if the property was owned for a considerable amount of time prior to the marriage by one spouse and no refinancing or improvements were done to the real estate.
Ways to Divide Real Estate Property Between Spouses in a Divorce
A divorce will include not only determinations regarding child support, child visitation, spousal support and other matters, but also include the equitable division of property. The equitable division of property does not mean that both spouses get exactly half of the marital estate, however. For example, if one spouse makes more money and wants to assume more of the marital debt, that spouse may also be awarded more of the marital assets as part of the equitable distribution. Here are some of the options available to spouses regarding real estate and divorce.
Refinance the Real Property Into Only One Spouse’s Name
In many cases, one spouse will want to continue to own the marital home. This often occurs when there are minor children and one spouse wants to continue to raise the children in a familiar environment. If this is the decision made between the spouses, that spouse may have to take on the mortgage or additional debt in order to receive the entire amount of real property into their name. Making sure that you receive a proper valuation of your real estate is critical to ensure that your legal and financial rights remain protected.
Sell the Real Estate
In some cases, spouses make the decision to sell the real estate and then divide the proceeds from that sale. This can happen if neither spouse can afford the real estate mortgage independently, or if there is too much emotional attachment to the home and neither party wants to continue to live in it. Again, it is important to note that the division of the assets from the sale of real estate may not be split exactly evenly, but rather equitably along with the rest of the marital assets in the divorce.
Contact an Experienced Divorce Attorney Today
If you are considering filing for divorce, visiting with a divorce attorney can ensure your legal rights remain protected regarding child custody issues, child support issues, alimony issues, and the division of marital property. Before you attempt to handle your real estate and divorce matters, contact an experienced divorce attorney at My Modern Law to help you better understand your legal rights regarding all aspects of your divorce. We welcome the opportunity to visit with you and help you with all of your legal needs regarding your divorce.
Listen to attorney Billie Tarascio and appraiser and Special Real Estate Commissioner Jeffery Hall discuss the issues of selling your real estate in divorce here.