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 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.
The divorce attorneys at Hildebrand Law, PC are available to answer your questions about Arizona community property laws and how to prove which property should be awarded to you as your sole and separate property. Call us at (480)305-8300 to speak to one of our experienced Arizona divorce and community property attorneys today.
Hildebrand Law, PC
As Seen on CBS News, ABC News, NBC News, and Fox News