Divorce and Community Property Division
One of the biggest concerns and frustrations for couples seeking divorce is the division of property. This question can also cause additional conflict in an emotionally charged process. Among the many aspects of divorce that can be regulated by state governments is the division of assets and assets. In Arizona, the statute governing the disposition of property is Title 25 Marital and Domestic Relations, Chapter 318: Disposition of Property; retroactivity; notice to creditors; assignment of debts; contempt of court.
This statute provides that, in a divorce or legal separation proceeding, the court may assign sole property of each spouse to that spouse. The court can also divide joint property, which is why Arizona is referred to as a “community property” state. Community property can include all property and debts that were acquired from the beginning of the marriage until the due date. Property acquired by either spouse outside of Arizona is still considered community property, if the property would have been legally considered community property had it originally been acquired in Arizona.
The formal settlement of property and debts between the spouses is called a Marital Settlement Agreement or adjudication of property decreed by the Superior Court of Arizona. The division of property is made without regard to any spousal misconduct.
Debt is not something many people consider when thinking about marital property divisions. The court may consider all debts and obligations related to the property in its final judgments. Debts include taxes (earned or accrued) that are part of the sale of any property. There are certain exemptions to certain properties, including Title 33 Property, Chapter 8: Family and Personal Property Exemption.
Please note that the decision made by the courts regarding the division of debts is binding on the spouses and not on the creditors. Because debts are made between individuals and creditors (i.e., banks, credit card companies, medical companies, retailers, etc.), the court’s decision does not necessarily relieve a spouse of the responsibility to meet the obligations of a debt.
If one spouse requests it, the court may enter a lien against the other spouse’s property in an effort to secure payment of the debts the court orders the spouse to pay. This can be done to ensure payment of specific types of debt, including:
• Interest or equity that one of the spouses has in the property
• Community debts required to be paid by the spouses by the court
• Child support
• Spousal support
Arizona Marital and Domestic Relations Title 25, Chapter 318 also allows the court to consider damages and judgments that resulted in a spouse’s criminal conviction. This refers to situations where the other spouse or child was the victim of “abnormal spending, destruction, concealment, or fraudulent disposition of community, joint tenancy, or other common property.”
Any jointly owned property, which is not included in the provisions of the agreement, will remain jointly owned. This means that both spouses will keep half of the property or interest in the property. Additionally, the final decree or sentence will describe, in legal terms, the assets affected by the provisions (including the prospective and retrospective operation of the property).
The complexity of the property division is not determined by the reasons for which the divorce is filed. Whether in a contested or uncontested divorce, this determination is generally made on a 50/50 basis, unless there are extraordinary circumstances. Due to the process involved and the potential for conflict, many spouses prefer to settle privately with the help of a divorce attorney.