Community and Separate Property

Arizona Community Property Lawyers

At the Weingart Law Firm in Tempe, we help clients understand their rights and responsibilities concerning property division in divorce. When you know the nature and extent of your rights concerning the marital property and debts, you will not be likely to waste money and stress on holding out for a result that a family court judge would not be likely to grant. At the same time, our representation will protect you from any attempt to deny you your fair share of the marital estate. Contact us to schedule an initial consultation about your community property rights.

Arizona recognizes two kinds of property: community property and separate property. The character of the property as community or separate is determined at the time either spouse acquires it. Separate property is any asset that was owned by a spouse prior to the marriage or that was acquired by gift or inheritance during the marriage. Community property is any other property, which typically includes the earnings of either spouse during the marriage, and anything acquired with the earnings. Only community assets are subject to division in a divorce case, and each spouse is entitled to keep his or her separate property.

Debts are also part of the marital estate. Any debt incurred during the marriage is presumed to be a community debt, but any debt (such as a student loan) incurred before the marriage is the separate indebtedness of the spouse who incurred it.

The family court judge is required under Arizona law to divide the community property "equitably" between the spouses, which doesn't always mean equally. In negotiating the terms of a community property settlement, we normally advise our clients not to worry too much about a strict 50-50 division of the property, but emphasize instead the value of a particular asset or debt in the overall scheme of a divorce settlement. For example, in exchange for a better alimony payment, we might advise a divorcing spouse to accept a lesser property settlement, if that better serves our client's interests and objectives. We might also recommend that a party receiving the greater part of the property also assume the burden of a greater part of the debt.

Difficult questions can arise with respect to whether a particular asset or debt is community or separate property. Should a spouse be reimbursed for payments during the marriage for the other spouse's student loan? Would appreciation during the marriage of the value of a spouse's inherited real estate count as community property? May a premarital agreement characterize a particular asset as separate property? What about the possibility that your spouse might have concealed or transferred marital assets?

Our experienced Arizona divorce lawyers not only can advise you of the legal nature of a particular asset, we can also help you work through the more important question of whether it's worth fighting over. In many situations, we can obtain a substantial concession on a more important issue from your perspective in exchange for compromising your interest with respect to a particular community property question.

We take a flexible and practical approach to marital property issues, but always reserve the possibility of family court litigation when your key interests can't otherwise be protected. For more information about our ability to help you resolve community property disputes, contact the Greater Phoenix divorce attorneys at the Weingart Law Firm.