Should I Stay or Should I Go?: Considerations for a marital home during a divorce or separation

March 26, 2025

Photo: Andrii Yalanskyi/Dreamstime

By Charles E. Sears

“Will it make a difference whether I move out of the house I share with my spouse before I file for divorce?” This is a common question asked of divorce attorneys. Another frequently asked question is whether it makes a difference if the client or their spouse moves out of the marital residence before either files for divorce or before their divorce is final. In 2022, the Arizona Court of Appeals (“COA”) provided guidance concerning those questions in Ferrill v. Ferrill. However, as with most questions posed to attorneys, the answer to those questions remains, “It depends.” Specifically, it depends on whether:

• The house, often referred to as the “marital residence,” is community property or is the separate property of one spouse (i.e., it was purchased by one spouse before marriage or it was purchased during the marriage but one spouse quit-claimed it to the other);
• The spouse who remains in the marital residence will seek reimbursement from the spouse who moved out for one-half of the payments made by the occupying spouse toward the mortgage after the date of service of the divorce petition (the “Service Date”)
• The spouse who leaves the house wants to be reimbursed by the other spouse for half of the fair market rental value of the house after the Service Date; an
• The spouse who moves out was ousted from the marital residence instead of moving out voluntarily.
• There are other factors to consider as well, but the list above makes for a good start to the discussion on whether to stay or to go.

DETERMINING WHAT PROPERTY BELONGS TO THE COMMUNITY

When a couple marries, they are referred to as the “community.” Arizona is what is known as a “community property” state. This means that anything acquired by either spouse during the marriage is community property and each spouse has an equal interest in that property. There are several exceptions, such as gifts or inheritance (if it is not later commingled with community monies) and any items carved out in a pre- or post-marital agreement. Community property also applies to debts. Real estate purchased during the marriage that results in a mortgage and a deed in both spouses’ names creates a community mortgage. In other words, both spouses have an obligation for the debt.
When a divorce decree is entered, termination of the marital community occurs on the date that the divorce petition is served on the respondent spouse. This means that, after service of the divorce petition and with certain exceptions, any debt incurred by a spouse is that spouse’s sole obligation and does not obligate the other spouse or the marital community. The same applies to anything acquired after the Service Date.

EFFECTS OF OUSTER

To be ousted means that a person (typically a co-tenant) is excluded or dispossessed from the residence. In the Ferrill case, Husband and Wife married in 1990. The parties had a marital residence encumbered by a community mortgage. Husband moved out of the marital residence in July 2019, and in October 2019, Wife filed a petition for divorce. Husband was served with the divorce petition that same month and, thereafter, Wife paid the monthly mortgage payments with her separate—not community—funds. At the trial on Wife’s divorce petition, Wife’s position was that Husband should have to reimburse Wife for payments she made on the community mortgage with her separate funds. Husband argued that any such reimbursement should be offset by the fair market rental value of the marital residence because Wife maintained exclusive use of it during the divorce proceedings. The trial court agreed that Wife had exclusive use of the marital residence and, for that reason, it denied Wife’s request for reimbursement. Wife appealed the trial court’s ruling, and Husband cross-appealed for other reasons.

The general rule in Arizona has been that during a divorce, a spouse who remains in the marital residence and makes payments on a community mortgage with separate funds is entitled to reimbursement from the other spouse for one-half of those payments, even if the other spouse left the marital residence. However, in Ferrill, the COA held that if the spouse who left the home was “ousted” from it—and only if there was an ouster—that spouse “is entitled to an offset toward the reimbursement claim up to one-half of the fair market rental value of the house.” Whether a spouse has been ousted is determined by a family court judge and depends upon the facts presented. In Ferrill, the COA remanded the issue of whether Husband was ousted to the trial court because although Wife allowed him access at one point to retrieve property, she later denied him access when he requested an inventory of community property within the home.

SHOULD I GO?

Although it is not necessary for the family court judge to find that the spouse who left tried to continue occupying the home before being ousted, you still may want to stay in the house if you ever find yourself in this situation. If you are the spouse who wants to leave the marital residence and your spouse is going to remain in the home and make payments toward the community mortgage, and if you want to seek an offset against those payments without having been ousted from the residence, remaining may be the better option. But as recognized by appellate courts other than Arizona’s, this is not ideal. The emotional and psychological strain of a divorce often make it extremely difficult for a couple to continue living under the same roof. During a divorce, it may be prudent to move out of the marital residence and waive a reimbursement claim rather than risk domestic violence occurring or being alleged. This may result in an Order of Protection against you, or worse, potential arrest and conviction for domestic violence—even if you are actually innocent or were the victim of domestic violence. However, an Order of Protection prohibiting one spouse from being at the marital residence and granting exclusive use to the victim/petitioner spouse would—or should—constitute an ouster from the marital residence.

Another way to achieve an ouster is for the spouse who wants to remain at the marital residence to file a motion with the court requesting exclusive possession and control of the marital residence during the divorce proceedings, i.e., to exclude the other spouse from the marital residence until a divorce decree is entered. The respondent spouse can object to the request and, if the motion is granted, this would result in an ouster of the respondent spouse. If the respondent spouse agrees to the motion, the parties should memorialize the agreement in writing or in a court order, which should state that the parties agree that the excluded spouse has been ousted from the marital residence.

• To summarize, in a contested divorce where one spouse stays in the marital residence and the other goes:
• If the occupying spouse makes a claim for reimbursement of payments made toward the community mortgage after the Service Date, that spouse needs to present evidence to the trial court showing that all of the payments, including the total amount, were made with separate funds toward the community mortgage;
• The trial court judge must determine as a matter of fact whether an ouster occurred; and
• If an ouster occurred, evidence of the marital residence’s fair market rental value and when the ouster occurred must be presented at trial by the ousted spouse.

If you are contemplating divorce or are currently involved in divorce litigation and need to decide whether you should stay in the marital residence or go, you should consult with an experienced family law attorney. As the song goes, “If you go, there could be trouble, but if you stay, it could be double.