Figuring out how to divide up the marital property in a divorce can be overwhelming. Fortunately Arizona family law is clear about what constitutes community property and how to divide it. Here are answers to a few common questions about dealing with property in a divorce.
What Is Community Property?
Arizona considers all property acquired during a marriage to be community property. This means that it belongs equally to both parties, with a few noteworthy exceptions that we’ll discuss in a moment. Arizona courts will also ensure that marital property is always divided “fairly” during a divorce. Of course, that may or may not mean precisely equally, depending on the individual situation.
Examples of community property include the family home, cars, bank accounts, and retirement accounts acquired during the marriage. Sometimes the line is a little fuzzy, such as when a couple combined both “separate” and “community” property, which is often where conflicts arise.
What Qualifies as Separate Property?
Separate property is property that is not subject to being divided in a divorce. The most obvious category of separate property is anything that was acquired before the marriage, or (usually) after the divorce papers were served. However, there are special circumstances where you might have separate property even though it was acquired during the marriage. For instance, if you received money or property as a gift or through an inheritance, that’s considered separate property, even if you were married at the time. You may also keep property separate based on the terms of a prenuptial or postnuptial agreement
What Happens When Property Was Combined?
This is where dividing community property can get tricky: when both community and separate property was combined. For instance, if one spouse owned the family home prior to the marriage, but both spouses contributed to the mortgage payments and general upkeep during the marriage, you’ll need to determine how much of the equity should be considered community property and subject to division. Likewise, if one spouse inherited money but deposited it in the joint bank account, it could be considered community property instead of separate property. If the separate property is “commingled” it is more of a challenge to prove what portion is sole and separate.
Can Community Property Be Sold?
Especially if you are hurting for money while the divorce is pending, you might be wondering whether you can sell community property. Typically the answer is no. Once a divorce action is filed and served, a preliminary injunction takes effect on all marital property to ensure everything gets disclosed and divided fairly. The family home can be a notable exception, however. If the home is community property and neither spouse can afford (or wants) to buy out the other one, the judge may order the home to be sold while the divorce is still pending. Only once the home is sold can the proceeds from the sale be divided equally between both parties.
What About Community Debt?
Just like with shared marital property, any debt incurred during the marriage is assumed to belong to both spouses equally, regardless of whose names are on the accounts. Debt incurred before the marriage is still considered separate. Community debt can be divided fairly between parties just the same as community property.
If communal property and debt in your marriage is going to be very complicated to figure out and divide, chances are that you’ll need some help moving forward. A divorce attorney can help determine what you’re entitled to and represent your best interests, especially if you need to let the court decide. For more information about marital property divisions and a consultation of your case, contact the Simon Law Group today.
