Just as no two relationships are the same, every Arizona divorce is going to be different.
When it comes to property division, our Mesa divorce attorneys understand that as a community property state, all property acquired by the couple during the course of the marriage is going to be divided equally under the letter of the law. However, the reality typically leaves plenty of room for negotiation and interpretation. In theory, factors such as financial need or fault or ability to earn are not taken into consideration when reaching a divorce settlement.
However, it all comes down to how property is classified. The only property that is subject to division is marital property. The state of Arizona sets a strong presumption that all property and assets acquired during the marriage is marital property.
Non-marital property would be property that one spouse owned or earned prior to entering the union or that he or she received as a gift or inheritance during the marriage. The burden of proof regarding non-marital property is on the spouse seeking to classify the property as non-marital.
So whether existing law is favorable to you is going to depend on your individual situation. The process of defining property can be a complicated one, particularly if one spouse owns a business or other assets. Even if that spouse had the company prior to the marriage, if labor or funds were contributed by the other during the course of the marriage, it may still be considered community property.
If your lawyer analyzes your case and determines the law isn’t generally favorable to you, there are some options. The first of which would be to attempt to mediate with your soon-to-be-ex on some of these issues. For example, you could ask for all rights to your business in exchange for the house, or visa versa.
This is known as “buying out” the other party’s share in certain items of property. You don’t want to make these kind of determinations, however, without the careful prior consideration of your attorney. In some situations, we may even call for an appraisal of some of the larger ticket items and assets. This will help to give you a concrete idea of the value of each item exchanged.
Another option would be to agree to continue to jointly hold that property after a divorce. We recognize that many times, this isn’t an especially attractive choice for many couples because it does require some semblance of ongoing contact with the other person. However, there are sometimes reasons, particularly when children are involved, why it could make sense. One common example of this would be when a couple agrees to jointly hold a family home until the children are grown and out of school. At that point, the two can decide if they want to sell the home and split the proceeds. In other cases, they may choose to keep it as an investment property.
There are relatively few exceptions under Arizona law for which property might be considered exempt from equal distribution. One of those might be if one party wasted a large portion of the marital property or assets with an addiction to drugs or gambling. Or alternatively, the aggrieved party could ask the court for the addicted spouse to shoulder a greater share of the debt accrued as a result of the other party’s negligence.
These matters are complicated. We’re experienced.
Contact our Mesa divorce lawyers at (480) 833-1113.
Understanding How Assets Get Divided in a Divorce, June 14, 2013, By Jeff Landers, Huffington Post