It’s Not Always Even-Steven: When is an Unequal Division of Community Property and Debts Warranted in a Divorce?
I have found as a community property attorney in family law that it is rare, but there are times the family court will decide that an equal division of property or debts is not appropriate considering certain circumstances.
In Inboden v. Inboden, 223 Ariz. 542, 225 P.3d 599 (App. 2010), the Arizona Court of Appeals determined several factors that should be considered when determining an unequal division:
(1) the length of the marriage,
(2) the contributions of each spouse to the community,
(3) the source of funds used to acquire the property to be divided,
(4) the allocation of debt, and
(5) any other factor that may affect the outcome.
Here is an example of when an unequal division of community property or debt is appropriate: Husband and Wife have been married for fifteen years. Husband and Wife decide to separate and continue to live separate for four years. At the time of the separation, Husband and Wife did not have any credit cards. They also separated all of their belongings and their finances. For four years, each spouse was paying for his/her own bills and supporting himself/herself. Fast forward three years to the time of the divorce, Husband now has incurred $20,000.00 in credit card debt. After review of the statements from Husband’s credit card, Husband had months of extravagant spending. Husband purchased for himself a new quad, several trips to Best Buy for the newest electronics, and Home Depot for the newest tools.
Husband requested, in the divorce petition, that Wife pay one-half of his credit card bill, based on the community property laws. Generally, the family court would order an equal division of the debt and each party would pay half. But in this case, how is that fair? Wife can argue, based on the factors above, why it would be inappropriate for her to pay half of Husband’s credit card debt.
The parties were separated for four years and kept all their finances separate during that time. Wife earned her own income and paid her bills. Husband did the same. The parties even filed taxes married but separate. In addition, Wife did not benefit from any of the purchases made by Husband. Wife is not being awarded any of the property that Husband purchased, Husband is keeping it. Husband’s purchases did not benefit the community at all. It was not as though Husband purchased a new air conditioner for the marital residence. Husband purchased items that solely benefit him. Based on the factors above, the court may order that Husband get all or a substantial portion of his credit card debt.
It is unusual that a court will grant an unequal division of community property or debts; however, it can happen. If you need help in your case that represents a unique set of circumstances, you need an experienced community property attorney, please call me at (480) 833-2341 to discuss your case.