An Experienced and Straightforward Lawyer Protecting Your Property Rights in Phoenix, Mesa, Peoria, and Surrounding Areas
Property division is one of the most important and complex negotiations of a divorce. Especially if you have valuable assets that hang in the balance, and property that may be complicated to divide, you may naturally be feeling overwhelmed and concerned about what you will be left with. However, rest assured that Attorney Elizabeth J. Martinez is the advocate for you in the negotiations or trial room. She will tailor her legal services to your unique situation and listen to your needs and goals for the case. She will provide you the straightforward legal advice you need and fight to protect your assets and property rights in the face of divorce.
Schedule a free consultation with Martinez Family Law online or at (480) 571-7736 to get started immediately.
Arizona is a community property state, which means all assets and debts that a couple acquires during their marriage belongs equally to both of them and is subject to division between them. However, according to Ariz. Rev. Stat. § 25-318, this division of community property does not necessarily need to be exactly equal but only fair and equitable.
A judge will decide the property division settlement unless the couple is able to reach a settlement agreement on their own through negotiation or mediation.
Community property is subject for division in a divorce, but each spouse may retain their own separate property. Separate property includes:
- any property one spouse owned alone before the marriage;
- property acquired by gift or inheritance by either spouse before, during, or after the marriage;
- any property or asset covered by a valid prenuptial agreement or a postnuptial agreement.
Note that separate property may become community property if a spouse mixes ("commingles") their separate property with community property, in which case the separate property becomes community property. For example, if a spouse who was the sole owner of a property before the marriage uses marital funds to pay its mortgage, this property essentially becomes marital property.
Arizona law presumes that all assets and debts a couple accumulates during marriage are community or marital property. The process of distinguishing community property from separate property can become very complicated, though, especially if one spouse owns a business or other asset to which the other partner contributed to in labor or funds. It is best to consult an attorney in such a situation to ensure you identify the proper status of your property.
Keep in mind that there are many types of assets that can be partially community and partially separate, such as retirement accounts or a business one spouse started before marriage and continued operating after marriage. An experienced property division lawyer can better help you plan how to proceed in such a situation.
Settling the Property Division Agreement
As mentioned above, spouses may reach their own settlement agreements outside of the court. With a lawyer, they can negotiate how to divide assets by:
- assigning certain items to each spouse;
- allowing a spouse to "buy out" the other's share of an asset; or
- selling assets and dividing the proceeds.
Spouses should also assign all debt accrued during the marriage (e.g., mortgages, car loans, credit card debts) to one of the spouses. Couples dividing debts should be aware that their separation agreement or divorce order is not binding on creditors, who may continue trying to collect a community debt from either spouse.
Note that one important step in the settlement negotiation is appraisals. The spouses (or the court if the couple cannot agree) will assign a monetary value to each asset or debt, and this approximate value will help a judge make a fair division. Some assets may be more difficult to quantity, such as retirement assets, but an experienced property division lawyer can help you consult a financial expert in such a situation.
In summary, the necessary steps in a property division case include:
- Inventorying and characterizing property, including bank accounts, real estate, retirement plans, vehicles, household goods, sporting equipment, memberships, timeshares, stocks and bonds, collectibles, animals of value, vacation property and life insurance policies.
- Keeping income and debt records separate from your spouse's once a divorce petition has been filed and served.
- Consulting with a divorce attorney about the difference between community property and separate property.
- Being careful not to commingle separate property with community property.
- Talking to a lawyer about options regarding the marital home, which may be your biggest asset, your biggest debt liability, or both. If your mortgage is upside down, this will naturally affect how property division and debt division are handled.
For legal guidance in your property division negotiation in Scottsdale, AZ, contact Martinez Family Law today. Call (480) 571-7736 or reach out online for a free consultation.
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