questions & answers

Question: My husband filed for divorce. My question is since the house is in his "mother's" name, which is what I am being told, when the divorce is final can they just kick me out? I have paid the utilities and upkeep for 4 years now. My husband lives on one side of house and I on the other side right now.

Answer:

It depends on who is the true owner of the house. The first thing to do is investigate the title to the residence. In other words, has the house been in the "mother's" name all along or was it transferred during the marriage for another reason? For example, it is not uncommon for one spouse to buy a marital home in his own name, simply because he enjoys a better credit rating, and then re-convey the house to both him and his wife after the sale is done (so that they can both exercise ownership). If this is the case, and the house in truth has always belonged to you and your husband in all but name, then this may still be a community asset in which you have an interest equal to your husband's.

On the other hand, if the house was always in the "mother's" name, then you may still have a property interest in the residence. Generally, this property interest may have to be exercised through separate litigation - not in the divorce case itself.

If you contributed to the utilities and upkeep, then you may have what's referred to as an 'equitable lien' on the property. Again, however, the divorce judge may not permit you to present that issue in the divorce case. You should speak to an attorney who understands real estate transactions as much as family law, because the resolution of this problem may not occur during your divorce.

As a practical matter, it is a good idea to save copies of any receipts, bills or statements that show the financial contribution you have made to the maintenance of this home. If you helped with any mortgage payments make sure that you retrieve bank account records that show what money went where. It should not be difficult to retrieve even electronic versions of your bank statements.

Under Arizona Family Law Rule 49, each spouse in a divorce case is required to disclose financial records, spanning from six months before the divorce was filed all the way to the present. This would include bank records, debt records, retirement accounts, life insurance policies, and any other document that reflects both spouses' finances. Under standard discovery rules, you are also entitled to request additional records going further back if you think it is important.

Again, it is important that you confer with an attorney who is well-versed in real estate and real estate-related commercial litigation. She might be able to provide you with information beyond the expertise of a family law attorney.