Introduction

The marital home can be one of the most valuable assets a divorcing couple owns, both from a financial and an emotional standpoint. As a result, the marital residence can become a source of contention in divorce proceedings. Even in community property states like Arizona, it is rare for a divorce court to simply order a marital residence to be sold and the proceeds divided. What is more common is for the court to award possession of the marital residence to one spouse or the other and then compensate the other spouse with assets that are equal or nearly-equal in value to the residence. For some spouses, however, the marital residence is priceless. How can a divorcing spouse obtain possession and use of the marital residence?

Obtaining Temporary Possession of the Marital Residence

When a divorce petition is initially filed, the party who files the divorce petition may request that the court enter temporary orders that would grant the party exclusive possession of the marital residence. The burden for obtaining possession of the marital residence on a temporary basis is relatively low: the party filing for divorce (and requesting temporary orders) need merely ask for possession of the marital residence and provide some reason for the request.

For example, suppose a party files for divorce. At the time she files her petition, she also files additional motions requesting that the court enter orders awarding her temporary custody of her and her spouse’s children as well as possession of the marital residence. As a basis for her request for possession of the residence, she may cite the fact that it would be beneficial to the children to remain in the children’s home (and, in all likelihood, the court would grant the person’s request). If a spouse has a significantly greater earning potential than the other spouse, has family members who live near the couple, or is believed to have been the perpetrator of abuse or domestic violence during the course of the marriage, a court may consider these factors as well and may award the marital residence to the other spouse on any of these grounds.

Temporary orders are just that – temporary. This means that the other spouse can file a motion and ask the court to review (and modify, if necessary) its initial order. For example, if the other spouse presents evidence showing that it would be in the best interests of the couple’s children that he or she be granted custody of the couple’s children – and, as a result, the home, too – the court may modify its initial temporary orders. In addition, any temporary orders the court enters expire the moment that the court enters its final orders.

Obtaining Permanent Possession of the Marital Residence

In determining which spouse should obtain possession and use of the marital residence after the divorce is finalized, the court will consider many of the same factors it considers when entering temporary orders. A court may, for example, prefer to give the marital residence to the person who is also given primary custody of the parties’ children. Alternatively, the court may choose to award the marital residence to the spouse that has a stronger emotional attachment to the home.  However, if the marital home is determined to be the separate property of one spouse or the other, then he or she will, in all likelihood, be awarded the marital home. (Of course, if the parties enter into a written agreement in which the parties agree which one of them should receive the marital residence, a court will most likely adopt the agreement and award the marital residence accordingly.)