Property division in divorce and legal separation

Posted over 2 years ago. Applies to Arizona, 3 helpful votes

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What exactly is property division?

Just like it sounds, it is the dividing or separating of property between two or more entities; in family law, this generally arises when spouses divorce or legally separate or a non-married couple goes their separate ways. Regardless of the occasion, it is a topic that deserves considerable thought and attention to ensure you don't end up relinquishing something you shouldn't and that you do give up those things you should or that you don't really care much about but can be powerful bargaining chips. As stated above, property can be real property--houses, land and the like--and it can be personal property, such as furniture or clothing. It can also be titled personal property, which lies somewhere in between. Like a car or boat, it carries a title or other legal document(s) showing the designated owner or owners of the item. You can't split these kinds of things, unless you decide to sell and split the proceeds, so it is important to figure out who they should go to.

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What if we can't agree on how to divide up our stuff or there isn't a way to split it equally?

This frequently happens. Even where a couple is fairly amicable in parting ways, sometimes there just is no easy way to evenly divide property. For example, most people, unless they are extremely wealthy, only have one house. And, in today's real estate market, it's probably underwater. So who gets "awarded" (more like "burdened with") the former marital residence is a tough call. It used to be that mom almost always would be awarded sole or at least primary physical custody of the kids, and as a result generally also would be awarded the house so the kids wouldn't have such a big post-divorce adjustment (they could keep going to their same school, hang out with their same friends, sleep in their same beds, etc.). These days, though, dad is nearly as likely as mom to be awarded some custody, and more likely to be awarded the house because they tend to be better able to afford it (women still generally earn less than men, only about 77 cents on the male dollar; see link below).

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What about who gets the refrigerator and who gets the washer & dryer?

Before you start creating or agreeing to the creation of an exhaustive laundry list of every household appliance, stick of furniture, photograph and book that was in the residence you shared, remember that it can be exhausting to do so and that people who normally are perfectly rational can get downright petty and ridiculous about the smallest and least important of things, like who gets the Fiesta salt-and-pepper shaker set that Uncle Harry gave you two for your wedding. Honestly, if it's not something you personally have a great sentimental attachment to or cannot easily replace, genuinely need for everyday living, or can sell for a lot of money and use the proceeds as an "offset" (value equalizer against property awarded to your spouse), don't bother. It's not worth the cost in terms of either attorneys' fees or negative emotional energy output. Let it go. No, really. Just let it go.

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I have a motorcycle that I bought long before I got married, and I inherited a coin collection from Aunt Sally. Do I have to share those things too?

No. And this brings up a really good point: Arizona and approximately eight other states, mostly in the southwestern part of the United States, recognize a type of marital property legal framework called "community property." Essentially, it says that what's yours is mine and what's mine is yours (100% indivisible), but only during an intact marriage (after the wedding and before a spouse files for divorce or legal separation). The basic idea is that everything should be shared for the good of the whole. The exception to this is something called "sole and separate property," which rightfully belongs only to one spouse or the other, not both. It can consist of anything acquired by that person alone before the marriage, after a divorce/legal separation filing, or during the marriage via inheritance, gift or separate earnings. It stays separate throughout the marriage but only if kept apart from and not "commingled" with community money (say, deposited into a joint checking account).

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We don't really have much if anything of value worth fighting over. What we really need is to divide our debts. But how?

As with property division, if the parties cannot agree on how to split up any debt, a judge will decide for them. The court usually first will look at in whose name the debt(s) is/are, such as a credit card that only lists one spouse as an account owner with the other designated merely a signatory (issued a second card and can sign for purchases). But if the secondary signatory is the one who runs up the vast majority of the charges on the account, that person may be "awarded" the card as their sole and separate debt. Or the court may decide it was used for the mutual benefit of the marital community (both spouses/the entire household) and split it down the middle and order each to pay 50 percent of the outstanding balance from a date certain, typically the filing date or date the divorce is final. Don't try to get out of your shared responsibility for community debts by attempting to remove your name from an account after the filing. This will only raise the judge's ire against you.

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Final notes

A few final notes are apt here. First, student loans generally are considered the "sole and separate property" (debt/burden) of the individual whose name is on the loan, in other words the student. Second, if a business interest is at issue, I would highly advise consulting with a third-party business valuation professional as this can be complicated. Third, pre- and post-nups--that is, agreements signed by parties before or after marrying--can modify the default rules for property division. While most common with the very wealthy, pro athletes, actors, musicians and other celebrities, it is becoming increasingly common even among "us poor folk," especially with second (or more) marriages later in life where the parties want to ensure their adult children and not their spouse receive their entire estate. As always, please seek the advice of an experienced family law attorney who has considerable knowledge of property division before making any decisions about these important matters.

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Legal disclaimer

This legal guide should not be construed as formal legal advice or the formation of a lawyer/client relationship.

Additional Resources

Time Magazine article: "Why Do Women Still Earn Less Than Men?"

Joan M. Bundy, Chandler family law attorney

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Related Topics

Divorce

Divorce is the process of formally ending a marriage. Divorces may be jointly agreed upon, resolved by negotiation, or decided in court.

Who Gets What: Property Division in a Divorce

When a married couple gets divorced, the assets and debts acquired during the marriage will be divided between them.

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