A property division lawyer assists in divorces and ensures that property is separated fairly. Arizona is a community property state and division of property is governed by ARS 25-318.
Community property refers to any property or assets accumulated during the marriage. In a divorce, any property brought into the marriage remains with the original owner, but any property or assets acquired during the marriage are considered community property and will be divided equally.
The division of property can either be completed by the two parties involved, or the court can determine the division of the assets. Reaching an agreement about property division on your own is ideal and the cheaper route. However, if a couple is unable to reach an agreement on their own or through mediation services they will have to take the issue to court.
Factors to Consider when Dividing Property
As a community property state, any assets gained during the marriage will be divided fairly. Fairly does not necessarily mean equally (property will not be split 50-50). There are factors and considerations put into place by law to govern the distribution of assets.
The court takes the following into consideration when determining the fair division of property:
- Length of the Marriage: The longer the marriage, the greater the consideration the court will put into the equal division of assets. If it was a very short marriage, it’s not always fair to split things 50-50.
- Earning Capacity: If one spouse has a substantially higher earning capacity, a judge has the right to grant the spouse with the lesser earning potential a greater portion of the assets to balance out the earning difference.
- Liquidity of Assets: Assets that are not liquid, such as 401K’s or retirement funds, are obviously difficult to split evenly. The end goal is equal division, so this can be offset by allocating different assets to the other spouse.
- Value of Separate Assets: Inheritances, settlements, investments, etc. are considered in the division of property to determine future well-being of each spouse.
- Child Custody and Living Arrangements: If one parent is granted sole custody of the child or has the child more often, the court will consider this in the distribution of assets to ensure that the child’s needs are met.
- Wrongdoing: If one spouse tries to hide assets, spend all their cash before the divorce order is signed, has a gambling issues, etc., the court will take this into consideration when deciding how to split the assets.
- Fairness: The purpose of a community property state is to allow for fairness if a marriage should end. Keep this in mind when discussing property division and creating a strategy with your attorney.
Property Division in Court
When a couple is unable to come to an agreement regarding property division on their own or through mediation, then they must take the case to court. Some issues that courts run into are determining which assets are separate and community property, the value of each asset, and who should get which assets. A knowledgeable attorney will be able to help you collect the proper paperwork to address these issues and make it a more simple process for the courts.
Additionally, if couples can’t agree to split a large asset (generally a home) the court can force the couple to sell the house and split the proceeds.
Remember that the burden of proof lies with the individuals involved in the divorce. The court is not going to hire someone to look into each individuals income, assets, debts, and then determine the market value for each. It is up to each party to request the proper documents from each side regarding assets or hire an investigator to ensure the other individual is not hiding assets.
In court, the judge will look at all documents produced, listen to statements from both parties, and make their decision on what they view as a legally fair division of property. Once the court has filed an order regarding the distribution of assets, it is a legally binding document.
The most difficult part for most individuals is accepting the court’s orders. The court has the final decision in property division, so it is always recommended to try to reach an agreement outside of court first.
Why Do I Need a Property Division Lawyer?
Divorce is an inherently difficult process, but adding in the stress of dividing property can be too much for some individuals to handle on their own. Property division lawyers in Arizona understand the implications of a community property state and can guide you to the best strategy available to maintain your assets.
Property division is generally a battle. People do not want to just give up what they have worked hard to earn, so it becomes a contentious situation. An attorney can be the voice of reason and your advocate throughout this process to ensure you are treated fairly and get the property you deserve.
Dividing property can become complicated when there are military benefits, joint property, business ownership, etc. to consider. An experienced attorney will know the processes and statutes that govern property distribution to help you get everything you are entitled to receive.
Call the Family Law Team at (480) 467-4348 to discuss your case today.
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