Property Division
Your Guide Through A Difficult Process
Distinguishing between community property and separate property during a divorce or legal separation case is one of the more complex processes associated with family law in Arizona and the law will oftentimes contain many exceptions to the generals rules discussed on this website. It is important that you speak with a qualified and competent Arizona family law attorney about your property, so you can properly establish what is considered to be community property and what is considered to be separate property in an Arizona divorce.
Generally speaking, any property that was owned by a spouse prior to marriage is that spouse’s sole and separate property. Furthermore, any property acquired by a spouse through inheritance or gift is also that spouse’s sole and separate property. Additionally, any property acquired by a spouse during the marriage is typically labeled as community property and would, therefore, be equitably divided in a divorce or legal separation case. If a spouse’s separate property is found to have been commingled with community property, the separate property could potentially be converted into community property, if proper documentation is not provided to the court tracing those sole and separate funds.
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Separate Property
Separate property in Arizona is generally classified as any property owned by a spouse before marriage or any property owned by a spouse after a divorce decree has been finalized. Property that is gained by a spouse through inheritance or gift will be that spouse’s sole and separate property, regardless if received before, during, or after a divorce.
The increase or decrease in the value of a spouse’s separate property is also the separate property of the spouse who owns that property. Separate property can be difficult to determine because there are oftentimes complex legal variables involved such as community liens against a spouse’s separate property, transmutation of separate property into community property, commingling of separate property with community property, and the tracing of separate property which were commingled with community funds. It is vital to seek out an experienced, knowledgeable and proficient family law attorney to ensure that community property is fairly divided and separate property is awarded to the spouse who owns that separate property.
Community Property
Arizona community property laws include a presumption that all property acquired by either party is owned by the parties as community property, regardless of how title to that property is held. The burden of proving that an item of property is the separate property of a spouse rests upon the spouse making that separate property claim. There is also a presumption that all property owned by either spouse prior to marriage is the separate property of the spouse who acquired that property.
Community property is distinguished from joint property. Joint property is a form of designation of ownership on the title to property, such as land. The laws applying to joint property may result in a different outcome than in community property. For example, a spouse using his or her money to repair or maintain jointly held property may be reimbursable to the spouse using his or her own separate funds.
Selling Community Property During a Divorce
Some people may be unaware that, as a general rule, you may not sell community property while the divorce is pending. A Preliminary Injunction is issued when the initial divorce papers are filed with the clerk of the court.
That Preliminary Injunction is immediately enforceable against the person filing the divorce papers, but only becomes enforceable on the other party when he or she is served with those divorce papers. That Preliminary Injunction precludes either party from selling community assets.
