Author: coldham

…But It Was Mine Before We Got Married

It is not uncommon for one spouse to bring separate property into a marriage such as a house or land. For example, upon marriage, the husband and wife may choose to reside in a house that one of the spouses already owns. That property is generally considered the owner spouse’s sole and separate property. If the parties divorce or separate the other spouse will generally receive no interest in the separate property. That can change, however, if the owner of the separate property puts the other spouse’s name on title to the property. Once that happens, the property is presumed to be a gift to the marital community, in the case of property retitled as community property with right of survivorship, or as a gift of an undivided one-half interest in the property to the other spouse, in the case of property retitled as joint tenancy, with right of survivorship. In either case, a court will likely determine that both spouses have an equal interest in any equity in the property at the time of dissolution or separation even though it was brought into the marriage as one spouse’s sole and separate property. Sometimes, when one spouse puts the other on title to his or her separate property, the intent is to gift the property to the marital community, or one-half of his or her equity, to the other...

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Who Gets to Live in the House

A common question among parties to a divorce is who gets to live in the house the parties share, frequently referred to as the marital residence, during the divorce.  Ideally, this is a decision that the parties will reach together. If the parties are unable to reach an amicable decision, however, the natural reaction might be to ask the court to enter an order in favor of one spouse over the other. The question is usually presented to the court through a motion for temporary orders.  Absent the presence of some core issues, however, the court may be unwilling or unable to make such a decision. In Arizona, a party may seek temporary orders for a number of purposes. Such purposes include spousal support, child support, attorneys’ fees and, in some cases, the exclusive use of the martial residence. The Arizona statute governing temporary orders provides that a party may seek an order of the court “[e]xcluding a party from the family home of the other party on a showing that physical or emotional harm may otherwise result.” In cases where one party has or is committing acts of domestic violence against the other party, or the parties’ children, the question may be resolved outside of the divorce proceedings. For example, if one spouse is awarded an order of protection against the other as a result of domestic violence,...

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The DW Family Law Blog Blog is published by Dickinson Wright PLLC to inform the public of important developments within the firm and practice areas. The content is informational only and does not constitute legal or professional advice. We encourage you to consult a Dickinson Wright attorney if you have specific questions or concerns relating to any of the topics covered in this blog.