Marital Property Laws
Understanding Marital Property Laws
One of the confusing aspects of divorce is the division of marital property. Some assets may be deemed not to be marital property. How do the courts determine whether a property is a marital property or non-marital property? The family court only has the authority to award to each party their sole and separate non-marital property.
So the first thing a judge must do is make a determination as to which property is non-marital property in every divorce case. In general, any property that was acquired by either spouse before their marriage, or property acquired by a gift or as an inheritance, is deemed non-marital property.
Any property that was purchased by either spouse during their marriage is presumed to be the property of said marriage and, therefore, becomes “marital property.”
The parties may agree on how to divide their marital property in an Arizona divorce case. If the parties do not agree on how to divide their marital property, the court will do so. The division of marital assets is required to be fair and equitable; although in some cases whether or not the court succeeded in keeping the division fair and equitable could be argued.
Marital Property Laws on Sole and Separate Property
Generally speaking, the following would potentially be exempt from the classification of being a “marital asset”:
- Property that was received by a gift or a legacy
- Property that was acquired in exchange for property that was purchased before the marriage
- Property bought by a spouse after entry of a Judgment of Legal Separation
- Property that is excluded by mutual (and valid) agreement between both parties
- Any property or judgment that is awarded to one spouse from the other
- Any property acquired before marriage
In many marriages, the marital and non-marital property may have been combined, such as when parties mix non-marital money in an account with marital money in the same account. This can make the process of determining marital property and non-marital process somewhat complicated.
For instance, one spouse may have received an inheritance and then used that same inheritance to purchase the family home titled in the names of both parties, or they may have just put the inheritance into a joint bank account. You can see how quickly the line between marital assets and non-marital assets can become blurred.
It is important that you understand how marital property is divided when you file for a divorce or legal separation in Arizona. The division of property acquired during a marriage may also affect how marital debts are divided, as well as whether spousal maintenance is awarded and, if so, how much spousal maintenance will be awarded and how long that award will last.
It is also very important to hire an attorney who has a very thorough understanding of the various laws that impact how property is divided. We have seen other attorneys make critical mistakes stemming from a lack of knowledge about the division of property in a family law case. You need to understand the concepts of community liens, the “fair use” defense to community liens, commingling, tracing of separate property and much more before reaching any agreements dividing your property.
Chris Hildebrand wrote this article about marital property laws in Arizona to ensure everyone has access to information about marital property laws in Arizona. Chris is a 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 actually caring about what his clients are going through.