Until you go through a divorce, the many questions surrounding the topic – including how you would divide your property should your marriage end – likely never arise. Once you’re facing the prospect of property division, web research for terms like “equitable division” and “community property” does not provide all of the answers. Your best resource for learning what to expect during a divorce is your family law attorney.
The attorneys at Gillespie, Shields & Taylor can help you navigate Arizona’s complex divorce estate division laws so you do not have to worry about losing valuable property or dividing more than you are legally required to. Our attorneys offer extensive experience across various legal fields, including family law, civil suits, employment disputes, and probate cases, with a strong focus on family law. This overview of property division is meant to provide both spouses with a general understanding of what to expect during this critical phase of divorce.
What Is a Wife Typically Entitled to in a Divorce in Arizona?
There is a common misconception that the wife always gets the house in a divorce. A related myth is that they are entitled to a disproportionate part of the marital estate. While one spouse may walk away with more than half of an estate, marital assets and debts are typically divided equitably, as close to 50/50 as possible, allowing for differences unique to each couple.
Arizona’s divorce and other family laws assert no preference for one gender over the other. Thus, the difference between a favorable or unfavorable outcome in family court often has far more to do with the quality of legal representation. With a skilled family law and divorce attorney, both spouses should receive roughly half of the marital property.
In Arizona, the wife (and her soon-to-be ex-husband) is entitled to the following forms of assets, debts, and properties.
An Equitable Share of Community Property
Arizona’s laws of community property establish that any asset or debt acquired during the marriage, aside from gifts or inheritances, is viewed as community property belonging equally to both spouses. Examples of community property include automobiles, real estate, and even the equity built up from the home, provided the home was paid or mostly paid for during the marriage. Bank accounts, shared or otherwise, are also considered community property. Community property is also defined as anything that is not separate property.
During a divorce, the courts will see that community property is divided in a fair and equitable manner. Please note that this does not always mean a precise 50-50 split. In some cases, both parties may agree to terms of the divorce that allow one party to keep more than half the value of the marital estate. A judge may rule that a 50-50 split would not be fair to one spouse. The courts generally defer to both parties when they come to an agreement.
Their Own Separate Property
While community property must be divided between the two spouses, the wife is entitled to 100% of any property deemed to be her separate property. Likewise, her spouse is entitled to his or her separate property. In Arizona, separate property includes assets that one spouse acquires before marriage as well as gifts or inheritances received during the marriage. Separate property also refers to all debts and assets acquired after the wife was served notice of the divorce or after she petitioned for divorce.
This property is not subject to division during a divorce and remains solely owned by the individual spouse. Separate property is distinct from community property, which encompasses assets acquired jointly during the marriage. As such, the wife is fully entitled to retain her separate property.
Pensions, IRAs, and 401Ks
Retirement accounts like IRAs and pensions are considered community property. As such, they are subject to division through the courts. The only exception is retirement accounts that were funded before marriage; these accounts and the resulting interest would be considered separate property. Dividing pensions and 401ks that have separate and community property can require the skills of an experienced family law attorney with the resources and connections to accurately calculate which portion of the marital estate is subject to division.
Half the Equity of Real Estate Property
One question that comes up frequently during a divorce is, “Who gets the house in a divorce in Arizona?” There is no rule or law that says the wife is entitled to get the house, although this often happens due to child-rearing considerations. Ultimately, both spouses make the decision about who gets the house. Otherwise, a judge will make that decision for them.
In short, the wife is entitled to the same types of assets and debts as the husband. Arizona’s community property laws make no preference when it comes to gender. Having an experienced attorney can make a significant difference in the outcome of your case.
Arizona’s Divorce Laws and Property Division Procedures
Developing calm and confidence as you face divorce and property division proceedings requires a basic understanding of Arizona’s community property laws. Divorce rules and property division in Arizona are governed by these principles.
Divorce rules and property division in Arizona govern how debts and assets are divided between spouses during a divorce case. Under the community property system, all property acquired by either spouse during the marriage is considered community property. It is, therefore, subject to equal division as the couple is approaching divorce.
During mediation or negotiation, the spouses and their attorney will often hire an expert to perform a full appraisal to determine the fair market value of physical items like furniture, vehicles, and real estate, as well as calculate the total value of intangible assets like income, investments, and retirement accounts. All community property will be divided as close to equally as possible; in the case of an item that cannot be divided, like a home or vehicle, the couple may assign the item to one spouse while the other spouse receives other property equivalent to half the item’s value to ensure equitable division. Alternatively, a judge may order the property’s sale and the division of the resulting proceeds.
Debts are also considered community obligations that must be divided equally before a divorce can be finalized.
Arizona divorce laws on property aim to divide community property as fairly as possible, but the process can be complicated. Factors like prenuptial agreements or financial misconduct may impact how assets are distributed.
While the state follows a 50/50 rule for community property, couples can agree on different terms if they prefer to settle outside of court. Ultimately, understanding community property laws in Arizona is essential for navigating the division of assets and debts during divorce proceedings.
The Different Types of Spousal Maintenance in Arizona
In Arizona, spouses may be entitled to spousal maintenance (also known as alimony or spousal support), especially in cases where the marriage lasted ten years or longer, and there is a history of wage disparity between the spouses. In those cases, the court may order these and other types of spousal maintenance.
Permanent Spousal Maintenance
This form of spousal maintenance lasts until a former spouse remarries or dies. Permanent spousal maintenance is often awarded after long marriages or in cases where the former partners are disabled or unable to work. The amount may be adjusted if the paying spouse’s financial circumstances change, but deliberately quitting a job to avoid making payments is not permitted.
Rehabilitative Spousal Maintenance
Rehabilitative spousal maintenance is a common form of spousal support in Arizona. It is designed to help a recipient who relinquished their ability to gain education or training because they were supporting the other spouse’s career or raising children to become self-sufficient as the divorce is finalized. It typically lasts until a specified date or when conditions such as job training completion are met.
Compensatory Spousal Maintenance
This type of maintenance is similar to rehabilitative spousal maintenance but is a bit rarer. It is meant to repay one spouse for an investment made in the other, whether financial or non-financial. An example may include a situation where one spouse pays for the other’s education while the other earns a degree.
Temporary Spousal Maintenance
Temporary support may be granted during divorce proceedings to help the recipient maintain financial stability while awaiting the final ruling. The amount awarded for temporary support may vary from the eventual spousal maintenance decision.
Factors a Judge May Consider When Setting Spousal Maintenance
Spousal maintenance is not automatically included in Arizona divorces. A judge may assess several factors before deciding whether spousal maintenance is appropriate. Fault in the divorce is generally not considered unless the fault is explicitly included in prenuptial or postnuptial agreement language.
However, these factors will be considered:
Length of Marriage
Another of the primary factors is the length of the marriage. Spousal support is more commonly awarded after longer marriages (typically those lasting ten years or more), though shorter marriages may also qualify if other significant circumstances exist.
Standard of Living
The standard of living for the couple during the marriage also plays a role. The court may consider the standard of living the spouses experienced during the marriage compared to after the marriage when deciding whether spousal support is appropriate. If one spouse stands to experience a significant reduction in quality of life, spousal maintenance may be in order.
Age
Another factor is the age of the spouses. Younger individuals may be expected to re-enter the workforce, while an older spouse approaching retirement might be unable to find suitable employment. Older spouses may also have unique healthcare or other needs that both prevent employment and increase the cost of living.
Career Opportunities and Earning Ability
The court will also consider whether one spouse sacrificed career opportunities to support the other’s career advancement. If so, spousal maintenance is more likely. Earning ability is key, as well, since spouses with degrees and experience may require less support than those with no professional background or a disability.
Other Factors
Health insurance is another factor, as courts may account for the cost of coverage if one spouse previously provided insurance for both. Similarly, if one spouse is disabled, their former spouse may be required to continue to provide spousal maintenance to make up for difficulties maintaining employment and healthcare. Lastly, property ownership impacts need; a spouse with substantial separate property may require less support than one relying solely on community assets.
Arizona Divorce FAQs:
Understanding what spouses may be entitled to during a divorce is a complex undertaking, guided by the complexities of Arizona property division laws. Our clients should be well-informed about their divorce so they can make informed decisions about their future, so we offer these frequently asked questions and answers.
Schedule Your Arizona Divorce Consultation Today
Arizona’s divorce rules and property division proceedings demonstrate no preference for the wife or husband. As a result, contrary to popular belief, the wife doesn’t always get the house. In fact, the experience of the attorneys representing both parties may be the number one most significant factor that determines what each spouse receives after the divorce.
At Gillespie, Shields & Taylor, our multifaceted law firm is dedicated to providing effective legal services to Arizona individuals facing a divorce. Our clients benefit from our years of experience and collective wisdom. If you have questions regarding the property you may expect to keep after your divorce, we welcome you to contact our office and schedule a consultation.
*Editor’s Notes: This article was originally published August, 2021 and has been update October, 2024.
Sources:
- 25-211 – Property acquired during marriage as community property; exceptions; effect of service of a petition. (n.d.). Www.azleg.gov. https://www.azleg.gov/ars/25/00211.htm
Founder, Owner, and Family Law Attorney
Those who know DeeAn Gillespie Strub can describe her in three words: caring, courageous, and competent. Growing up as the oldest of nine children, DeeAn quickly learned leadership and resourcefulness. With both parents as educators, she also acquired a love of learning, and from her mathematician, father learned to think analytically. Following in her parents’ footsteps, her first career step was to become a teacher. It was not long before she determined she could use her teaching skills most effectively in a different arena: the law. She wanted to make a difference for people.