Property Division2020-05-05T15:27:30-07:00


Property Division

Unlike most other issues in family court, property division usually cannot be modified at a later date. That means it is essential to get it right the first time and property division is an area of family law where inexperienced attorneys frequently make costly and sometimes irreversible mistakes.

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Our attorneys possess extensive family court and appellate experience resolving issues related to the division of property during divorce or legal separation.

Arizona is a community property state. This means that all property acquired during the marriage by either spouse is presumed to belong to both spouses, regardless of title. Community property encompasses both tangible property, like real estate; automobiles; household goods and furnishings; and intangible property, like income earned by either spouse during the marriage, contributions to retirement or investment accounts, and certain employee benefits. Businesses started or formed during the marriage by one spouse may be deemed community property. All community property must be divided equitably, which usually but not always means equally, during divorce or legal separation.

Property acquired by one spouse prior to the marriage or during the marriage by gift or inheritance is separate property. Separate property is not subject to division during the marriage, though the non-owning spouse may be entitled to an equitable interest when separate property appreciates during the marriage. This interest is commonly referred to as a community lien.

A community lien is a marital community’s equitable interest created when community funds or other efforts are used to pay for or improve the value of a spouse’s separate property. Community liens most commonly exist in the context of real estate when community funds, including the income of one spouse, are used to pay the mortgage payment or make improvements that enhance the value fo the separate property. The community is entitled to reimbursement of a portion of the community funds expended and a portion of the resulting appreciation. The precise formula to determine these interests is currently the subject of pending appeals, so check back regularly for new information.

Debt is treated similarly to property. Generally, both spouses are liable for debts incurred by either spouse in the marriage. Just like with property, it it possible to rebut this presumption, but it requires compelling evidence that the debt incurred was not intended to benefit the community in any way. This exception should not be interpreted literally as “benefit the community” does not require both spouses to actually benefit, only the abstract idea of the “marital community.” This analysis gets pretty nuanced, so if you have questions about whether specific debt will be characterized as community property, you definitely should contact us with a free consultation with an experienced divorce attorney.

A claim for community waste may exist when a spouse excessively or fraudulently “wasted” or spent community funds during the marriage. Usually, but not always, these claims involve an element of concealment because if a spouse knows the other spouse is spending funds and takes no action, 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 claim community waste if the other spouse used community funds to facilitate an extramarital affair.

Application of community property law and its many exceptions can be extremely complex, so we are constantly adding resources to make it easier to understand.

If you have questions about separate vs. community property or any other family law issue, contact us for a free consultation with an experienced attorney.


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