Anyone considering a divorce in Arizona should understand the basics of how community property is defined. A.R.S. 25-211(A) provides “All property acquired by either husband or wife during the marriage is the community property of the husband and wife except for property that is (1) acquired by gift, devise, or descent; (2) 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.”
In more straightforward terms, everything you acquired (assets or debts) prior to the day of your marriage is separate property. Anything you acquired from the date of your marriage until the date you or your spouse was served with dissolution papers is community property. And any property you acquired after the date of service is separate property.
Some general examples of community property are as follows:
On the flip side, property you acquired before marriage and after the date of service is considered separate property. For example, if you lease an apartment after service of dissolution, that is your separate debt. Also, if you incur debt after service, that will be your separate debt. Additionally, if you purchased a home prior to the marriage, that will be your separate property.
These general rules may sound fairly clear, but property and debts can get confusing quickly. Exceptions and legal actions can modify the characterization of the property. For example, when you buy a house before the marriage and the couple decides to live in the house for 20 years, the house will be characterized (assuming no other legal actions occurred) to be separate property of the one spouse. However, the non-owning spouse may have a claim against the house for the use of community funds (wages) used to pay for the house (mortgage) over the years. Another area of confusion is retirement accounts, primarily because this is an area in which separate property and community property are likely combined. An experienced attorney can help with more complex areas and issues of community property are normally fact driven.
When you are planning for your divorce, it is very important that you identify all property and make a note of whether it is community or separate. Once you have done that, you should consult with an attorney to verify there are not any other legal issues that may have changed the characterization, or to affirm whether or not you may have a lien on the property as a result of the combination of separate and community funds involved in the property.
Blog post content by Castle Law LLC lawyer Jason Castle.
Jason Castle is a family lawyer who specializes in high-conflict cases. He's also a former prosecutor & social worker. Hear his latest divorce thoughts!