property division

    • Community Property:

      Arizona is a community property state.  This means property that is acquired by either the husband or the wife during the marriage is presumed to be the joint property of the husband and wife, regardless of who holds the title.  Blackman v. Blackman, 45 Ariz. 374 (1935).  There are two exceptions to this general rule.  First, if the property is acquired by gift, devise, or descent it is the separate property of the recipient.  Second, if the property is acquired after the service of a petition for dissolution of marriage, legal separation or annulment and the petition results in a decree of dissolution, the property will be the separate property of the person who acquired it.  A.R.S. § 25-211.

      Upon a dissolution, all property will be equitably divided between the parties.  Anderson v. Anderson, 65 Ariz. 184 (1947); A.R.S. § 25-318. This means that in most cases the property will be divided equally, without regard to marital misconduct.  Additionally, a court cannot divide property solely based on each parties financial contributions to the asset. Inboden v. Inboden, 223 Ariz. 542 (App. 2010).

      There are exceptions to this general standard, which should be discussed with a knowledgeable attorney, such as:

            ·         Waste of assets;
      ·         Separate property liens;
      ·         Reimbursement Claims;
      ·         Business liens;
      ·         Gifts;
      ·         Separate property expenditures.

      Community Debts:

      If the parties incur a debt during the marriage that benefits the marital community, it is presumed to be a community obligation unless clear and convincing evidence exists to the contrary.  Arab Monetary Fund v. Hashim, 219 Ariz. 108 (App. 2008).

      Separate Property:

      Although Arizona is a community property state, this does not mean that separate property holders have fewer rights than the community.  In fact, Arizona has specific statutory authority, A.R.S. § 25-213, that delineates the rights of separate property holders. It reads:

      A.      A spouse's real and personal property that is owned by that spouse before marriage and that is acquired by that spouse during the marriage by gift, devise or descent, and the increase, rents, issues and profits of that property, is the separate property of that spouse.

      B.      Property that is acquired by a spouse after service of a petition for dissolution of marriage, legal separation or annulment is also the separate property of that spouse if the petition results in a decree of dissolution of marriage, legal separation or annulment.

      C.      Notwithstanding subsection B of this section and § 25-214, subsection C, a mortgage or deed of trust executed by a spouse who acquires the real property encumbered by that mortgage or deed of trust after service of a petition for dissolution of marriage, legal separation or annulment shall be enforceable against the real property if the petition does not result in a decree of dissolution of marriage, legal separation or annulment.

      D.       A contribution to an irrevocable trust that has or will have as its principal asset life insurance on the person making the contribution is a contribution of the insured's separate property if the spouse of the insured is the primary beneficiary of the trust.

       The area of separate property, however, is extremely complicated when it comes to a separate business or reimbursement and commingling of assets. We can help guide you through this complicated area to protect your rights when it comes to these claims.

      Contact us to learn how your property will be divided.