Proving Property is Sole and Separate Property in an Arizona Divorce
In the case of Foster vs. Foster, the husband filed an appeal of the trial court’s division of guns in an Arizona divorce. The court awarded some of the guns to the husband as his sole and separate property but divided other firearms as community property. The husband asserted that guns the court divided as community property were his separate property.
The trial judge presumed guns acquired during the marriage were community property. The trial court placed the burden of proof on the husband to prove the guns were his separate property by clear and convincing evidence. The husband asserts that the burden of proof should not apply to the property defined as separate property by the statue.
Arizona statutes define property acquired by gift, devise, or descent as separate property. The Arizona Court of Appeals found that prior cases did not address the burden of proof to establish that property was acquired as separate property.
The Arizona Court of Appeals upheld the trial court’s application of a clear and convincing burden of proof. The spouse claiming a piece of property is his or her sole and separate property, therefore, has to prove so by clear and convincing evidence; otherwise the presumption that property acquired during a marriage is community property applies.
A party does not meet that burden of proof by providing testimony the property was owned before marriage or received as a gift or inheritance.
Chris Hildebrand wrote this article 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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