Leaving the Marital or Partner Home in Arizona
A question I get asked almost more than any other, from prospective and current clients alike, is whether it will hurt their case at all if they move out. Some people even say something like, “I heard that constitutes abandonment.” Find out why this is not an issue of concern.
Is it abandonment?If you are just starting the journey toward divorce or child-custody establishment, you may wonder whether it will damage your legal rights if you move out of your home. Is this true?
In Arizona, the simple answer is no. Moving out of the marital residence or home you have shared with your romantic partner does not break any law, criminal or otherwise. Also, it cannot be used against you in family court.
Arizona is a no-fault divorce state. In fact, every state today has some form of no-fault divorce, although the legal requirements vary from state to state. To get a no-fault divorce, you do not have to prove that your spouse did something horrible, such as regularly abusing you physically and/or emotionally (often termed "extreme cruelty"), stepping out on you ("adultery" or "infidelity"), or leaving you and your offspring to fend for yourselves ("abandonment" or "desertion").
Today, there is no such thing as abandonment in family court (only in juvenile-dependency court, with parental termination cases defining abandonment as six months or more of no attempted contact with or financial assistance of a child). A judge will not punish you in any way if you happen to move out. Being the first to leave the home will not adversely affect your parental rights, property-ownership rights, or anything else related to the divorce. Sure, you still might be ordered to provide child support and possibly spousal maintenance, at least temporarily while the case is actively pending in court. But this would be true no matter who is living in the residence or if neither of you is doing so anymore.
Moving out does not relieve you of all duties toward the propertyOccupation or possession of real property is only one branch in the bundle of sticks of ownership (or leasehold, if you rent). Whether you or your former romantic partner moves out of your previously shared residence--and if so, when--is completely up to you. But realize that both of you may still be on the hook for a mortgage, property taxes, homeowners association dues, or a lease, depending on whether you own or rent, and whose name is on the loan and/or title or lease documents.
A more important concern should be whether--and if so, when--the residence should be sold, or whether the lease should be broken, allowed to expire, or renewed. A party may be allowed to stay in or move back into the residence for at least some time, especially if there are any minor children involved. If so, additional factors may be considered, such as:
o How old the children are.
o How long they have lived in the residence.
o Whether moving would require changing school districts or moving a long distance away from their neighborhood friends.
If one or more children are old enough to remember and moving could greatly traumatize them, the judge is more likely to allow a parent to stay in the residence with the children and either buy out the other parent's interest in the real estate, or continue to jointly own it with the moved-out parent for a predetermined period of time. For example, the time period might end when the child turns a certain age, the mortgage is paid off by a certain amount or the market allows for a certain percentage of net profit. With continued joint ownership, the non-resident parent likely will be required to continue paying his or her half--or whatever other amount can be agreed to--toward the property expenses, not including utilities.
Changing the locksA related question is whether a spouse or parent can have the locks changed on the residence so that the other party cannot get back in. This depends on whether both people are listed on the title or lease. It also depends on whether any protective orders are in place preventing the defendant from returning without law enforcement on standby while the person picks up some of his or her belongings.
Technically, both parties have the right to access the property anytime if they are both named as the owners or lessees. So a better plan would be to hold off changing the locks until the moved-out party is notified and has given written consent.
If an order of protection is in place, and you are truly afraid for the life or safety of yourself and/or other loved ones in the home, you may be able to change the locks temporarily. Then you would need to change them back or give the other party a key once the danger has subsided.
Deciding whether or when to leave the marital or partner home can be a complicated issue. If you are in doubt, be sure to consult with an experienced Arizona family law attorney.