Arizona Property Division and Family Law FAQ’s
Along with alimony, child support, and child custody, property division is one of the most important issues that will be resolved when you get divorced in Arizona. Property division is the process of splitting not only assets, but also debts acquired by the spouses during. It’s essential that you understand how property division works in Arizona before beginning the divorce process.
Question: My former spouse hasn’t paid child support for months/years…. Is there anything I can do?
Answer: Yes. If there is an existing support order in place, you may file a Rule to Show Cause with the Court and ask the court to compel the mother/father to pay the past due support and for other remedies as permitted by law (fines, jail time, payment of attorney’s fees, etc.). If there is no support order in place, you may file an action with the Arizona Family Court to establish a support order. Contact an experienced Arizona Family Law Attorney today. Don’t continue to not get the support for your child that you have coming.
Question: Does Arizona use equitable division or community property?
Answer: Arizona is one of nine states that uses community property to divide assets and debts in a divorce. Everything- even items in only one spouse’s names- is community property if it was acquired during the marriage. Property acquired by gift or inheritance during the marriage is the separate property of that spouse. Property one spouse acquired before the marriage will also be that spouse’s separate property.
Question: Do we have to use community property division?
Answer: You and your spouse can divide your community property in a manner other than community property division if you both agree to it. Community property is the method used by the judge should your divorce proceed to trial, which isn’t the case for the majority of the divorces.
Question: Can separate property ever become community property in an Arizona Family Law Case?
Answer: Whether acquired through gift or inheritance, or before the marriage, all of these types of separate property may become at least partially community property in time. The two ways this can happen in Arizona are called “commingling” and “transmutation”.
Question: What is commingling regarding Family Law?
Answer: Commingling is the process by which separate property becomes inextricably intertwined with community property. For example, one spouse may purchase a house before the marriage, but later the spouses renovate the home. The renovations are paid for out of a jointly held account. Should the couple divorce, the separate property house may have become sufficiently commingled that the other spouse is entitled to a share of it based on the value added by community property renovations.
Question: What is transmutation?
Answer: A separate property asset can be transmuted to community property if the owner changes the title to include their spouse. Separate property titled to include both spouses will be transmuted to community property, but separate property titled in the spouse’s name alone will be a gift and become their separate property.
Question: How do we determine the value of our property if we are separating or Divorcing?
Answer: In order for your property to be divided fairly, each item must be assigned a clear numerical value. Some assets, like stocks and bank accounts, have an easily ascertainable value. Others may be less literal, but generally rely on a standardized method of valuation. An example of this is your vehicles- most spouses can agree to use Kelley Blue Book to estimate the value of their vehicles. However, most spouses aren’t comfortable using a website to estimate the value of more valuable assets, e.g., the marital home. The spouses can hire an appraiser to assign a value to any assets without clear values.
Question: Do we have to sell our house in a Divorce in Arizona?
Answer: Whether or not you will need to sell your marital home will depend on many factors, the first of which being whether you and your spouse have enough assets to make one spouse keeping the house plausible. Based on the value of the house and your other assets, one spouse may be able to keep the house while the other keeps the rest of the assets. One spouse may need to “buy out” the other spouse from their share of the house with cash. If there aren’t enough assets to go around, or the spouses have equal shares in the house and can’t come to an agreement on how to resolve the issue, the house may need to be sold. The proceeds from the sale will be divided between the spouses based on their proportional ownership share in the home. If the spouses have minor children and one parent is assigned primary custody, there may be a preference towards awarding that spouse the home so that the children can maintain a familiar environment.
Question: I’m not satisfied with the results of our property division. Can I go back and change it?
Answer: Unlike custody, child support, and some alimony orders, property division orders are non-modifiable. Once property division orders are issued, there is no going back and changing them. Otherwise, family law courts would constantly be congested with divorced spouses re-litigating property division matters.
Question: What happens if my ex doesn’t pay debts assigned to them in the divorce?
Answer: Unfortunately, family law orders do nothing to protect spouses from civil judgment. If your spouse fails to pay or discharges the debt in bankruptcy, the creditors may pursue you if it was a community debt. The court may place a lien on the separate property of a spouse ordered to pay debts in a divorce to ensure that this doesn’t happen.
Question: Is my retirement account safe from my spouse in a divorce?
Answer: Just like your home, cars, and bank accounts, your 401(k), IRA, or other retirement accounts will be split during property division. However, the process to split retirement accounts is more complicated than other assets due to premarital contributions, interest rates, etc. Retirement accounts must be divided using a Qualified Domestic Relations Order, or a QDRO (“quadro”). The spouses can collaborate to draft a QDRO or jointly hire someone to prepare it. The QDRO helps the spouses avoid tax penalties when their retirement accounts are split in a divorce.
Question: What if my spouse blew all our money before the divorce?
Answer: This is called marital waste, and you may be credited for your spouse’s misconduct during property division. Examples of marital waste include shopping sprees, out of the ordinary vacations, drug and alcohol binges, excessive gambling, and lavishing an extramarital lover with gifts. If you suspect this is the case, you will need to prove this in court by comparing your spouse’s spending right before the divorce with the rest of your marriage. If your spouse isn’t able to replenish funds deemed to be marital waste, you can be awarded a larger portion of community assets.
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