As a community property state, Arizona family courts presume that all property acquired by either spouse during the marriage belongs to the marital community, even if the property is titled only to one spouse. Although the presumption of community property is rebuttable, meaning that some property acquired during the marriage may be owned solely and separately by only one spouse, this article focuses on how community property is divided and when an unequal division of community property is appropriate.

Division of Community Property

During a divorce or legal separation, the family court must divide community property equitably, although not necessarily equally, without any regard for marital misconduct per A.R.S. § 25-318. However, this statute does not prevent courts from considering damages to a spouse that arise from the other spouse’s criminal conduct or excessive or abnormal expenditures, destruction, concealment, or fraudulent disposition of community property. Arizona courts recognize claims for community waste.

The “Toth” Decision

In Toth v. Toth, the Arizona Supreme Court acknowledged that, in rare circumstances, equal division of community property would be substantially unfair. In that divorce, the husband paid for the property entirely with separate funds and the marriage lasted only two weeks. The brevity of the marriage alone was not the determining factor but the combination of the circumstances made equal division unfair to husband. It is also important to note that the Supreme Court distinguished the Toth case from others that held community property cannot be unequally divided solely to reimburse a spouse for separate funds used to purchase the property.

How a Divorce Attorney Can Help

Property division can be the most complex issue in divorce and legal separation. Beyond correctly differentiating between separate and community property, and asserting or defending against a claim for unequal division of community property, the case may require calculation of a community lien — a spouse’s equitable interest in the other spouse’s separate property. Further complicating things, property division is resolved on a final basis, not subject to modification like certain other issues in family court. This means a mistake may be especially costly if it cannot be timely corrected or amended. In a recent case, opposing counsel mistakenly asserted an incorrect property interest and, because of this mistake, the judge denied his client’s request for attorney’s fees. So not only did his client get only a minuscule portion of the home proceeds, the financial consequence was compounded by the tens of thousands of dollars in additional attorney’s fees now her responsibility.

The safest course of action is to contact our divorce attorneys for a free consultation before agreeing to any property settlement or otherwise resolving property division issues.