Changing Positions During a Divorce Trial in Arizona
In Arizona, property acquired during a marriage is presumed to be community property. During a divorce, the judge divides a couple’s community property equitably between them. However, it is not always easy for the court to determine the value of community property.
In Moser v. Moser 474 P.2d 869 (1970), the Court of Appeals addressed the valuation of an insurance policy. The wife, in this case, appealed the trial court’s ruling that certain life insurance policies were her husband’s separate property.
Facts of the Case
Mr. Moser and Mrs. Moser divorced. Among their assets were life insurance policies on the husband’s life. Mr. Moser purchased them in New York where the couple initially lived. He took them in his name only. He then borrowed $8,000 against the policies and the couple used this community property to make payments and pay premiums.
Later, Mr. Moser and Mrs. Moser moved to Arizona. They borrowed more money on the insurance policies that they used for living expenses. In 1966 and 1967, Mr. Moser transferred ownership of the policies to the wife for estate tax purposes. He did not file a gift tax return.
The couple proceeded to borrow more money on the policies that they used for community expenses. At trial, Mr. Moser claimed that the policies were community property. The wife also testified that she thought they were community property. The trial court said that the policies, acquired in New York, appeared to have been husband’s separate property. At that point, the husband began arguing that they were his separate property
The trial court ruled that the policies were the husband’s separate property. It found no evidence that he intended to give an interest to Mrs. Moser. It further found that the net community interest in the policies was $1,811.85. This was the net amount their cash surrender value increased while the couple lived in Arizona.
It awarded this amount to the wife. From this, Mrs. Moser appealed.
Transfer to Wife Not Conclusive
Mrs. Moser now argues that the policies are her separate property. She claims that the fact that Mr. Moser transferred ownership to her is conclusive. The Court of Appeals disagreed. It said that, in Arizona, the title to a life insurance policy does not prove ownership. Evidence of the title transfer does not prove whether Mr. Moser intended a gift to wife.
The Court found the evidence showed that both the husband and wife did not intend the wife to be the sole owner.
Wife’s Community Property Share
The Court of Appeals, however, agreed that the policies were community property. The husband argued at trial that they were community property. The Court said that once he took this position at trial, he could not change it on appeal. The cash surrender value of the policies at trial was $11,500, after payment of the outstanding loan.
Mrs. Moser argued that the Court should value the policies without subtracting the $8,000 loan. For this, she relied on the case Hofstra v. Hofstra, 474 P.2d 869 (1970). In Hofstra, the husband borrowed money ($125,000) to purchase a community property ranch. He secured the loan with a pledge of his separate property. The court valued the ranch at $240,000. The husband asked for either a 125/240th interest in the ranch or a $125,000 lien against it.
The Court disagreed since the husband didn’t say that he reserved the cash investment as separate property until trial. At that point, the Court ruled, it was too late to do so. The Court of Appeals found in the Moser’s case that husband and wife’s situation differed from Hofstra. It said that Mr. Moser bought a separate property subject to a loan. The property was then transmuted into community property. It ruled that, in these circumstances, the community takes the property subject to the debt.
The value of the community interest is its fair market value less the amount of the debt. The Court of Appeals awarded Elizabeth a 50% interest in the policies, or $5,750.
The Arizona Court of Appeals amended the lower court ruling to award Elizabeth $5,750 instead of $1,811.85. It upheld the court’s decision otherwise. This included the lower court ruling on stock valuation and its attorney fee award to Elizabeth. This appeal distinguished a prior ruling from the Arizona Court of Appeals in the case of Hofstra v. Hofstra.
Other Articles About Community Property in Arizona
- Community Lien on Sole and Separate Property in Arizona
- Community Lien in Arizona
- Community Liens Separate Property in Arizona
- Community Property and Personal Guaranty in Arizona
- Determining Community Versus Sole Property in Arizona
- The difference Between Community and Separate Property in Arizona
- Disclaimer Deed in a Divorce in Arizona
- Divide Retirement Accounts in an Arizona Divorce
- Dividing Property Not Included in Divorce Decree in Arizona
- Division of Debt in an Arizona Divorce
- Do Rules Regarding Property Apply to Debts in an Arizona Divorce
- Enforce Division of Property and Debt in an Arizona Divorce
- Enforcing a Property Settlement Agreement in Arizona
- Filing a Lis Pendens in a Divorce in Arizona
- How is Property Divided in a Divorce in Arizona
- How to Divide Property in Arizona When a Spouse is Hiding Assets
- Is All Property Community Property in Arizona
- Is Arizona a 50 50 State in a Divorce
- Is Separate Property Divided in Arizona Divorce
- Marital Property Laws in Arizona
- Military Retirement Pay and Divorce in Arizona
- Pensions and Divorce in Arizona
- Separate Property Used to Purchase a Home During Marriage in Arizona
- Sole and Separate Property Divorce Arizona
- Is a Spouse Liable for Credit Card Debt in Arizona
- Stock Options Divided in an Arizona Divorce Case
- Stock Options in an Arizona Divorce
- Unequal Division of Property in Arizona Divorce
- Unfair Separation Agreement in Arizona
- Valuation and Distribution Options For Pensions in an Arizona Divorce
- What is Community Property in Arizona
- What is Separate Property in Arizona
Chris Hildebrand wrote the information on this page about changing positions during a divorce trial in Arizona to ensure everyone has access to information about family law in Arizona. Chris is a divorce and family law attorney at Hildebrand Law, PC. He has over 24 years of Arizona family law experience and has received multiple awards, including US News and World Report “Top Arizona Divorce Attorneys”, Phoenix Magazine “Top Divorce Law Firms”, and Arizona Foothills Magazine “Best of the Valley” award. He believes the policies and procedures he uses to get his clients through a divorce should all be guided by the principles of honesty, integrity, and, quite frankly, actually caring about what his clients are going through in a divorce or family law case. In short, his practice is defined by the success of his clients. He also manages all of the other attorneys at his firm to make sure the outcomes in their clients’ cases are successful as well.
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