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Steven E. Sufrin, Attorney at Law
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Dividing Property in an Arizona Divorce

What is the difference between community and separate property?

There's one thing all couples getting divorced in Arizona need to face and agree upon or fight over in court. Their stuff-specifically who gets what.

Division of property in an Arizona divorce, as its name implies, splits up the couple's assets so that each partner moves forward into their single, unmarried life with property of their own.

In Arizona--one of the few community property states in the country--there are two types of property that the court considers: marital (a/k/a community) property and separate property.

In a nutshell, marital property consists of property and assets acquired by the couple during their marriage and is considered legally owned equally by both spouses. This property is split up as close to 50/50 as possible in the event of a divorce.

In contrast, separate property includes property acquired by one spouse prior to the marriage as well as other property including but not limited to personal injury awards, inheritances, debts, and certain gifts received before and/or during the marriage. Separate property generally remains with the person its attached to and the other spouse has no right to share in it.

While it would seem easy to classify a couple's property into one category or the other, there are times when a spouse may act with respect to what is otherwise clearly separate property and such action might instead convert it to community property. A skilled family law attorney can advise on how particular property would likely be classified in any particular situation.

Sometimes, so-called "happily married" couples fight over property. Recently, a wealthy attorney reportedly took legal action against his wife of 40 years allegedly believing she was going to take (or had already taken) action that might impact his "possessory interests" in their $13 million Manhattan apartment to help their adult son out of a financial bind. The deed to the apartment-- which was reportedly acquired during the marriage-- is only in the wife's name though the husband allegedly bought, insured, maintained, and improved the apartment with his money. The action was reportedly being discontinued.

In Arizona, the apartment, acquired during the marriage, would generally be considered marital property and therefore owned equally by both spouses. However, in Arizona, gifts given from one spouse to the other during the marriage or property that both parties agreed in writing belongs only to one of the spouses may be considered separate property. So, it's important to review the particular circumstances of each case when classifying a couple's property as there may be exceptions to the general rule. 

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