questions & answers

Question: When in the middle of divorce proceedings, and one of the two spouses moves out to another residence taking all of his possessions, is it legal to have the locks changed on the marital home even though both co-own the home? The home is up for sale as listed in our beginning divorce papers.

Answer:

The general rule governing the protection of marital assets can be found at (A.R.S. § 25-0315). In particular, both spouses are prohibited "from transferring, encumbering, concealing, selling or otherwise disposing of any of the joint, common or community property of the parties except if related to the usual course of business, the necessities of life or court fees and reasonable attorney fees associated with an action filed under this article, without the written consent of the parties or the permission of the court."

First, most (if not all) family court judges will grant access to a house on behalf of someone who has moved out. This is because both spouses have the right to inspect the residence to make sure it is still suitable for sale or habitation, and has not been damaged or destroyed. Even with the existence of a domestic violence protective order, it is fairly simple to negotiate the logistics of allowing one spouse to inspect the residence (sometimes under the supervision of a third party), while the other temporarily stays away. So long as this right of access is not used as a ploy to contact, harass or verbally abuse the current resident, a judge may allow an opportunity to view the interior of the marital home.

Second, changing the locks on the home could constitute a potential violation of (A.R.S. § 25-0315), because it basically amounts to a “concealment” of property. Because you cannot gain entry, you have no way of verifying that your tangible property is still intact, or that it has not been moved to a different location unbeknownst to you.

If neither spouse is represented by an attorney, and there is no domestic violence protective order in effect, one option is to contact your spouse and politely request a spare key to the residence. You have the same right to enter the premises as he or she does, especially if the house is currently vacant and posted for sale. Presumably, you have the same right to negotiate a contract with a real estate agent, and assist in repairing or touching up the house to make it more marketable.