Family Law Overview

The Law Office of Jeffrey Miller
4800 N. Scottsdale Rd., Suite 6000
Scottsdale, AZ 85251
Phone: 480-222-2200 or 602-258-2500

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Division of Property

Arizona is a community property state. That means there are special rules that have evolved over time defining the way property is divided in a divorce/family law case. Property in Arizona has two types of property. They are "community property" and "sole and separate property". Each will be discussed separately below.

» Community Property

Community property consists of all real estate and personal property acquired during marriage with certain defined exceptions. This property includes, but is not limited to, all banking and financial institution accounts, all real estate, businesses owned by the parties, retirement and/or pension plans, income from whatever source including loans owed to you, furniture, fixtures and equipment and any other item of property that is acquired during marriage. As mentioned above, there are exceptions to the rule that property acquired during marriage is considered community property. Those exceptions are property acquired through a gift, property acquired through inheritance and, of course, property acquired prior to marriage. Generally speaking, all community property is divided equitably by the divorce/family law courts. There are some exceptions to the rule, particularly concerning when one party wastes or dissipates community assets. This will be discussed separately below.

» Sole and Separate Property

Sole and separate property is property that was acquired prior to marriage, inherited before or after marriage or gifted to a person either before or after marriage. The Arizona Courts presume that any property received during marriage is community property. In order to contradict that presumption, the party claiming that property is their sole and separate asset must do so by clear and convincing proof. If you have this issue in your divorce matter, you should consult this Office as the rules pertaining to community property versus sole and separate property can get complicated.

Community Lien on Separate Property

It is conceivable that someone could have an item of sole and separate property and yet the marital community may have an interest in it. This most often arises when one person owns a home prior to marriage. Then, after marriage both husband and wife live in the home and pay the mortgage with community earnings/funds. In such a case, a "community lien" is established on the separate property. Determining the value of a community lien can be a difficult process.

There are different presumptions with respect to sole and separate property and community property. For instance, if someone invests sole and separate funds in a community home, that is presumed to be a gift to the marital community. The presumption can be rebutted but it requires extensive tracing of the source of funds and proof of the intent of the parties. This can be a difficult task to accomplish. You should consult with this Office in situations similar to the one described above as we can assist you in assessing the value of a community lien.

Dissipation of Community Assets

Dissipation of Community Assets is also called Waste. Waste has a unique meaning in the law. It is not necessarily over spending on a vacation or buying something too expensive. For instance, waste or dissipation of community assets would occur if one party uses community money for an improper purpose such as excessive gambling, drugs or vacationing with a girl or boyfriend. These examples are typically not considered a legitimate expenditure of community funds. Should you have a waste and/or dissipation of community assets issue, you should contact this Office to assist you as presenting these issues can become very complicated.