Arizona is one of ten community property states in the U.S. All property acquired during marriage until the time one party is served with the divorce paperwork is presumed to be community property. All property acquired before marriage or after service of the dissolution paperwork is presumed to be separate property. All property acquired by gift, devise or will during marriage is also presumed to be separate property.
It is important that you familiarize yourself with Arizona community property law as you start this process. Knowledge of the law will take out the guesswork as to what each spouse is entitled. Most, if not all, of your property obtained during your marriage will be considered community.
The “petition” is what is filed to start the divorce and “service” is the official way that the other side is notified that the petition has been filed. The other side is called the “respondent.” Service is discussed more fully in Chapter 4 and terms are defined in the glossary.
Once property is considered community property, it must be divided equitably between the spouses. That is why it is important to determine the characterization of the property at the beginning of the divorce. There may be arguments about whether property is community or not, but most property is fairly easy to characterize. Property includes real property, which is land or a house. Property also includes your furniture, bank accounts, savings account, investments and deferred compensation plans, such as 401ks or IRAs.
Property for division, however, does not include Social Security benefits. Social Security law governs your Social Security account and it cannot be changed in a divorce decree. If you want to know specific information about your Social Security benefits, you may want to contact the Social Security Administration to find out about your specific income. Most property disputes revolve around houses. For some reason, many couples maintain complicated information regarding when and how a house was purchased and whose name is on the deed. It is important that you know if your name is on your house deed. You can check that on the Internet, courtesy of the Maricopa County Recorder’s Office at recorder.maricopa.gov/.
Another problem area is the commingling (mixing) of funds. For instance, if you received an inheritance during the marriage, the question becomes whether it is your sole and separate property. What if you put it in the bank and added your spouse’s name to it; is it automatically community property? The short answer is probably not, but these kinds of complications are beyond the scope of this book and can be better answered with more facts and an attorney’s advice.
Just remember, parties are always free to make their own decisions, without regard to what a judge would decide. For example, if you and your spouse decide that the money was and should be yours, you can make that agreement and the court will not disturb it. The exception to that rule is if there are children.
Even if there are agreements about the children, especially with regard to child support, the court will look very carefully at any agreement and proposed child support for the children to make sure that it is fair for the kids. Do not let this scare you; the court approves most agreements, because most negotiated agreements do prove to be fair for the children and the family.
A common question spouses have is whether they should get a legal separation instead of a divorce. The answer depends on what you are trying to achieve. If you want some financial protection, or you want to continue your health insurance, a legal separation will accomplish both. If you want to get remarried, you need...Read More >