PROTECT YOUR INTERESTS
Unlike some other issues in family court, property division usually cannot be modified at a later date. That means you need to get it right the first time. This is an area of family law where inexperienced attorneys frequently make costly and sometimes irreversible mistakes.
Under Arizona law, all property acquired by either spouse during a marriage is presumed to belong to the marital community and jointly owned by both spouses. Even property registered or titled in only one spouse’s name is still presumptively community property. This presumption also applies to intangible “property” like income earned during the marriage, contributions to retirement or investment accounts, certain employment benefits, and even to businesses started or formed during the marriage.
SOLE AND SEPARATE PROPERTY
Property acquired by one spouse prior to the marriage or during the marriage by gift or inheritance is the sole and separate property of that spouse. Generally, unless commingled with community property, sole and separate property will not be divided during divorce or legal separation.
A spouse may have a financial interest in separate property. A community lien is an equitable interest created when community funds are used to pay for or improve a spouse’s separate property. Community liens most commonly exist in the context of real estate when community funds are used to pay a mortgage payment or to make improvements to a home or property that enhance the property’s value. The community is entitled to reimbursement of a portion of the community funds expended and a portion of the appreciation proportional to the community’s investment.
The idea of community debt is similar. Generally, the marital community is liable for debts incurred by either spouse during the marriage. Like with property, it is possible to rebut the community presumption, but it requires nearly conclusive evidence that the debt incurred was not intended to benefit the community in any way.
A claim for community waste may exist when a spouse excessively or fraudulently “wastes” or spends community funds during a marriage. Usually, but not always, these claims involve an element of concealment because if a spouse knows the other spouse is wasting funds and takes no action for years, he or she may be barred from claiming community waste in an eventual divorce or legal separation. Although Arizona is a “no fault” divorce state, a spouse may have a claim for community waste if the other spouse used funds to advance of facilitate an extramarital affair.
Arizona is a community property state. So when individuals divorce or legally separate, property acquired during the marriage must be equitably divided. This usually, but not always, means equally. Contact our experienced family law attorneys for a free consultation.