Can the family court force you to jointly own property with your ex? In a recent opinion, the Court of Appeals addressed this very issue where the family court ordered two divorcing spouses to jointly own two homes for 6 years for the sake of their children’s best interest. Here is what happened.
In Dole v. Honorable Michael Blair, the family court (Judge Blair) was presented with a difficult decision. The mother and the father owned two homes. During the divorce process, the mother stayed in what had been the marital residence, and the father moved into what had been a rental property.
Both homes had equity, but both homes had mortgages. The father wanted to sell both homes and equally divide the sale proceeds. The mother wanted to be awarded the marital home and stay there at least until their youngest child emancipated—which would not occur for 6 years. The mother asserted that it would be best for their three minor children to remain in the marital home and not be uprooted.
In most divorces, where one spouse wants to be awarded the marital home, the court can do so, but will generally order that a refinance must occur so the other spouse is removed from the existing mortgage. In Dole, the mother was apparently not able to refinance the marital home, and so staying there would require that the sale of the marital home be postponed.
Ultimately, rather than sell the homes and divide the proceeds, the family court ordered that the parties continue to jointly own the two homes with the mother having exclusive use of the marital home and the father having exclusive use of the rental home. The parties were to own the properties as joint tenants with rights of survivorship, and, unless agreed upon earlier, they were to sell the homes and equally divide the proceeds approximately 6 years later. In effect, the family court granted the mother’s position to stay in the marital home until the last of the minor children emancipated.
The father appealed this decision, citing to multiple reasons why the family court’s ruling was in error. For instance, as joint tenants with rights of survivorship, if one of them were to die before the six years expired and before the homes sold, then the survivor would obtain a windfall by getting the value of both properties instead of only half. Similarly, the situation could have been to the detriment to one of the parties if the other did not adequately maintain his/her home for the next 6 years, thereby dissipating the value and property ownership of the other. Also, there is no telling what the real estate market will be like in 6 years and whether the parties would be able to sell the homes for anything close to what the properties currently could command on the market.
In a nutshell, the father argued that the applicable statute (A.R.S. § 25-318) requires that the family court must divide all community and jointly held property in a divorce, and forcing the parties to own property jointly for such an extended period of time is a violation of the family court’s obligation under that statute.
The Court of Appeals agreed with the father and reversed the family court. “While a court may consider the parties’ children in deciding which party should be awarded a given piece of property, in doing so, the court may not impinge on either party’s property interests.” Dole, ¶ 14. Per the statute, a former spouse loses any interest in and control over the separate property (including allocated community property) of the other spouse. Therefore, the family court was wrong to use the children’s interests to trump the property rights of the father.
What does this case mean for you? Well, it’s an opinion and so it’s legal decision is mandatory authority on all family courts in Arizona. The ruling makes it clear that the family court can consider the children’s best interest when dividing property, but A.R.S. § 25-318 must be followed and community property must be divided upon divorce.
So, if you are in a situation like the mother in Dole and want to hang onto a property that would require extended joint ownership, then this case is a notice to you that it’s not likely to happen. If you’re on the other side of the coin and want to make sure you are not forced into jointly owning property with your soon-to-be ex, then this case can serve as a support for your position and gentle reminder to the family court of its obligation.
Is it still possible to jointly own property with your spouse after divorce? Yes, but only if the two of you agree. I have seen scenarios where divorcing spouses want to jointly own property even after the divorce, including real estate, businesses, animals, etc. My general rule of thumb that jointly owning property with your ex is a bad idea and only leads to future problems and litigation. Broadly speaking, most divorcing spouses are getting divorced, in part, because of their inability to effectively communicate. Getting divorced doesn’t usually fix that problem.
If you are insistent on jointly owning property with your spouse after divorce, or if your spouse is insistent on it, you should speak with an experienced Arizona divorce lawyer to better understand your rights and option in light of the Dole case, and decide the potential pitfalls of jointly owning property after divorce.