Disclaimer: This article is for informational purposes only and does not constitute legal advice. Consult an attorney for guidance on your specific situation.
Detailed Answer
When spouses separate, any property acquired during the marriage remains community property until divided by agreement or court order. Separation alone does not alter ownership interests.
Under Arizona law, community property includes assets earned or acquired by either spouse during marriage. At divorce, the court divides community property equitably. See Ariz. Rev. Stat. § 25-211.
Before you finalize a divorce, you can partition real estate held with your spouse either by mutual agreement or through a court action. Arizona law allows co-owners to seek partition of land held as joint tenants or tenants in common. Community property interests qualify for partition. For procedure, see Ariz. Rev. Stat. § 12-1101.
To initiate a partition suit, file a complaint in Superior Court in the county where the property lies. You may request division in kind (physically splitting parcels) or a sale of the property with net proceeds divided between you and your spouse. The court will consider each party’s contributions, outstanding liens and any homestead claims when approving the arrangement.
If you and your spouse reach an agreement on dividing the property, draft and sign a written partition agreement. Then record the new deed(s) with the county recorder’s office to reflect each party’s interest. A properly recorded agreement can finalize partition without additional court proceedings.
Keep in mind that filing a partition action does not end your marriage or address other divorce matters such as spousal support or child custody. You must file a separate dissolution of marriage action to resolve those issues and formally terminate the marital relationship.
Choosing between negotiated partition and litigation depends on your working relationship and goals. Mediation or a separation agreement can streamline the process. If you anticipate dispute or complexity—such as unequal contributions, significant improvements, or liens—consider seeking court intervention to protect your interests.
Helpful Hints
- Review existing deeds, mortgages and liens before negotiating partition.
- Use mediation to reach a fair split and avoid litigation costs.
- Document your financial contributions to mortgage payments and property improvements.
- Verify any homestead protections that could impact a forced sale.
- Consult an attorney to ensure compliance with court rules and proper deed recording.