Dividing property is one of the most stressful aspects of divorce. How much does your former spouse have a right to take?
Statistics show that about 90% of all divorces are settled out of court short of a trial. The litigants in the other 10% of those cases that do go to trial most definitely experience a lot more stress to achieve an end result. A common denominator in the latter group of cases is often deciding who gets what.
Arizona is one of the nine community property states along with California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin. Basically, this means that property acquired during your marriage by either you or your spouse is the equal property of both with the exceptions of gifts and certain property acquired by devise or descent, or property acquired after service of a petition for dissolution of marriage, legal separation or annulment if the petition results in a decree of dissolution of marriage, legal separation or annulment (A.R.S. § 25-311).
For instance, if you owned the 100K speed boat before you got married, then the boat is your sole and separate property. If you purchased the boat while you were married, then the boat will need to be included in the pool of community assets that will be equally split. Simple right? Well not so fast. There are some caveats but generally speaking the above provides divorce litigants at least some starting point. Your competent and qualified divorce attorney can help you figure out the rest.
One thing to remember though is that if you are not the spouse awarded that money pit of a speed boat, and the loan associated with it, then make sure you are indemnified and held harmless from that loan in your divorce decree. This is especially important if your former spouse has bitten off more than he can chew and decides to stop making payments.
The division of tangible personal property items, such has pots, pans and toasters, is a headache for divorce lawyers and judges. You will want to try and resolve these issues with your spouse without intervention if at all possible. The larger issues such as the division of business, real property, vehicles, bank accounts and retirement accounts, are logically more difficult to handle, but you will want to attempt to amicably resolve these issues as well as the court can at times be harsh in dividing them – sometimes even in a way that neither party wants.
Interestingly, in many states, including Arizona, if your separately owned property increases in value during the marriage, that increase could also be considered marital (or community) property. A sure way to avoid this is to insist upon a Premarital Agreement prior to getting married. No consideration is necessary to enter into such an agreement, yet amazingly, as little as 3% of couples have one. Having one will take most, if not all, of the uncertainty and doubt out of the “who gets what” dilemma during your divorce. Although a Premarital Agreement cannot contemplate issues such as legal decision-making, parenting time and child support, it can most certainly specifically list out each party’s sole and separate assets and address issues about debt and asset division – and even spousal maintenance.
If you are considering divorce, or already engaged in the process, understand it is not uncommon for you to require the assistance of a competent and qualified divorce attorney to assist you in dealing with complicated asset division questions. If you have further questions or are in need of a divorce attorney, please contact Kaine Fisher, Director of Family Law at Rose Law Group, at kfisher@roselawgroup.com.
