Property Division Lawyer Phoenix
Division of marital property can be one of the most contentious issues that separating couples will face. If you are currently going through a divorce, you most likely have a lot of questions. Are you going to leave your marriage worse than you came into it? Will you have to hand over money to your spouse? Are you going to be able to keep your home? Unless there is already an agreement that states how marital property will be divided in a divorce, you will have to equitably divide all assets and liabilities accumulated during the marriage. To learn more about how Arizona’s property division laws may impact your future, reach out to a Phoenix property division attorney at the Law Office of Cosmas Onyia.
Arizona is a Community Property State
Arizona is one of nine “community property” states in the nation. That means all assets that were acquired during a marriage are community property or shared jointly between spouses. In a separation or divorce, all community property will be subject to equitable division. This means all assets, property, debts, and liabilities accumulated within the marriage must be jointly divided between the spouses.
Specifically, “equitable division” means that property will be divided and distributed in a fair and equitable way. A big misunderstanding is that equitable division means that all assets will be divided 50/50. While some divorces may be resolved with a 50/50 division, this is not applied in every case. The court will determine what percentage is equitable, which may or may not be a 50/50 split.
Community Property and Equitable Division
The first thing a court must make clear in the property division process is what is considered community property and thus subject to equitable division. Community property includes any assets that were held jointly by the couple during their marriage. This includes any real estate, accounts, investments, cash, and tangible or personal property. The court must determine what is separate property and thus not subject to property division.
When Was the Asset Acquired?
When determining if an asset is to be subject to community property division, it is crucial to determine exactly when the asset was acquired. Any asset or debt that was acquired prior to the marriage will most likely be considered pre-marital property. Any asset that was acquired or debt that was incurred after a divorce filing date will likely be considered separate from the marital estate. However, all assets that were acquired during marriage will be considered marital property, unless there was a legal document, such as a prenuptial or postnuptial agreement, that specifically deals with how property would be treated in a divorce
Marital Property in Division of Property Cases
Marital property includes all assets, property, debts, and liabilities held jointly by a married couple. Anything that is acquired after the date of marriage is considered part of the marital estate and subject to division in a divorce case. Unless there is an explicit agreement otherwise, such as a prenuptial agreement, where parties enter into a legally binding contract on how to split assets, all marital property will be divided according to the laws of community property division in Arizona.
Separate Property In Division of Property Cases
Even in a community property state, a married couple can have separate property. Usually, separate property includes all property that was acquired prior to the marriage or after a Phoenix divorce filing. However, there are other forms of separate property, including inheritances, gifts, and pre-marital property.
Generally, inheritances that were bestowed upon one spouse will be considered as their separate property and will not be subject to division of property laws. However, sometimes inheritance property becomes commingled and ends up becoming part of the marital estate. If you receive an inheritance and want to keep it separate, you must not attach your spouse’s name to it.
If you receive money, you must deposit it in a separate account bearing your name. If you deposit it into a joint account, then the money may become marital property, and subject to equitable division in a divorce. Similarly, any inheritance could be commingled and put into joint assets, such as purchasing new homes or funding renovations for your jointly held marital home.
Gifts, received before, during, or after a marriage, will be held as separate property. These include gifts received from others or your spouse (even if they were paid for with jointly held money). Unless you enjoin your spouse’s name on a deed, a gift will remain your separate property.
Pre-marital property includes any type of property (real or personal), assets, liability, or debt acquired by a single spouse prior to their date of marriage. Pre-marital property is considered separate property and not subject to property division as long as it stays in the original owner’s name. However, pre-marital property could become community property if the owner gives up equity or title to their spouse after marriage (such as putting their name on a deed of a property that was owned prior to marriage.) If you are entering marriage with pre-marital property, it is always recommended to first consult with a Phoenix property division attorney prior to transferring any equity to your spouse.
Division of Retirement Assets in Divorce
Retirement funds are a major concern for parties in the midst of a divorce. Many people have spent significant time at their jobs and accumulated money for retirement that they are relying on to support them in their twilight years. Retirement assets, such as IRAs, retirement savings, and pensions, are considered community property when they are accumulated during marriage. In some cases, a person may have accumulated a portion of their retirement savings prior to the marriage. In these cases, only the retirement savings that occurred during the marriage would be subject to division (and the pre-marital savings will remain separate property.)
Do You Need a Property Division Attorney in Arizona?
No one is required to have an attorney. However, with Arizona’s complex community property laws, a layperson working alone might jeopardize their division of property cases. At the Law Office of Cosmas Onyia, we understand the importance of fighting to ensure you end up with a fair portion of your community property.
Use of Experts in Valuation in Compex Asset Cases
Divorce is never easy. However, some types of divorces have more issues. Many high-net-worth divorces have additional complexities in terms of finances and distribution. Such cases may include marriages with high investment portfolios, numerous assets, professional practices, or suspected hidden assets. In some cases, it may be recommended to hire valuation experts to determine the correct valuation of all assets. If you need a qualified valuation expert in an Arizona property division case, contact a Family law attorney in Phoenix, AZ.
Reaching Agreement Regarding Division of Property
It is always best for divorcing couples to work together to reach an agreement on how assets and liabilities will be distributed. This can be done through mediation or negotiation. Lawyers can go between the spouses to reach a legally binding property settlement agreement. However, even though it is always suggested that couples first try to resolve the issue on their own, sometimes parties cannot agree on a property division settlement.
If parties cannot agree on terms, the case will go to court, where a judge will determine the outcome of the assets. The judge has wide discretion in determining what they feel is “fair” and “equitable.” In many cases, they will order the assets or property to be sold, and the proceeds divided between the parties. Many people do not want to risk having a judge decide the outcome of their home, community property, and investments. Contact the Law Office of Cosmas Onyia if you are interested in working on a property settlement agreement.
The Law Office of Cosmas Onyia – We Protect Your Rights and Interests
The Law Office of Cosmas Onyia is a compassionate and dedicated Phoenix law firm with extensive experience and knowledge of Family Law matters. For over 20 years, our Phoenix law firm has helped thousands of people with their divorce and property division concerns. Get experienced Family Law legal representation from the law firm of Cosmas Onyia, P.C., Phoenix, AZ. Call to schedule a no-cost evaluation with a Phoenix Property division lawyer at (602) 265-5200.