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How is property divided in a divorce?

Feb 10, 2022 | Children and Divorce, Divorce, Divorce Attorney, Divorce Lawyer

One of the most common questions in a divorce is “Who will get the house and other assets?” While this isn’t necessarily an easy question to answer, and ultimately it may be up to a judge to decide, there are a few things you should know.

Community vs Separate Property

Community property is any property acquired during the marriage. This includes things like your home, cash, cars, furniture, and land.  However, in addition to assets, debts must also be divided, like credit cards and outstanding medical bills.  Most couples forget that community property also includes pensions, IRAs, 401(k)s, stock options, and recent commissions earned during the course of your marriage. These are important to consider because in Arizona community property is divided fairly and equitably, which usually means close to equal. Unless agreed upon by the spouses, a judge will make the final determination on how these assets and debts are divided.

Separate property are any assets that were owned by one person before entering into marriage or that was passed down as a gift or inheritance. These assets would not be divided during a divorce. Rather, these assets would be given to the spouse who owns them.  Anything acquired after the date of service of the petition for divorce also belongs only to the spouse who earned/obtained that asset, so long as the asset is not purchased with community funds.

Identifying property

In some cases separate property owned prior to marriage or earned from an inheritance may become community property during the marriage if it is commingled with community funds. This is called transmutation and it can make dividing property more challenging.  Spouses often think that an asset belongs to the spouse in whose name the asset is titled.  However, title is irrelevant if the asset was earned or obtained during the marriage.

A good attorney will help you identify the different types of assets you own, both jointly and separately and can help ensure that you receive what you are entitled under the law to receive.  On occasion, experts may be called upon to put a value on the assets and give testimony to the judge. Even if at first glance you think your marital estate is modest, it’s a good idea to sit down with an attorney and talk through these issues.

Who is at fault

When dividing property a judge should not take into account who is “at fault” for the marriage’s failure. Things like cheating or domestic violence don’t typically come into play when dividing assets. What is important is if a spouse has wasted assets by gambling or spending shared assets on an extramarital affair. That spouse may be ordered to make payments to the innocent spouse, or be awarded less property, to make up for the loss of community assets. 

Seek fairness

The court’s job is to divide assets as fairly and equitably as possible. The length of your marriage, your career and your number of assets can all make this process difficult. That’s why it’s important to have an experienced attorney by your side to consider these issues and other issues you may not have thought about. Give us a call today to schedule your consultation and so we can begin helping you identify your assets.

Pangerl Law Firm P.L.L.C. focuses on divorce, child custody, mother’s and father’s rights, child support, and all other areas of family law, as well as personal injury claims. Our office is located in Deer Valley and serves the greater Phoenix area, including the communities of Scottsdale, Peoria, Glendale, Cave Creek, Avondale, Goodyear, Surprise, Mesa, Tempe, Anthem, New River, North Phoenix and Phoenix. For more information, call: 602-942-6200.