Laws concerning the division of marital property in a divorce differ between states. Arizona is an equitable distribution state. This means that Arizona law requires an equitable, or fair, division of marital assets. Of course, some couples are able to reach an agreement about how the marital property will be divided or they can reach an agreement with the assistance of an attorney or mediator. Other times, however, a couple cannot reach such an agreement. After all, the division of marital assets is one of the most hotly contested issues in a divorce. When this is the case, a court will decide on a distribution that is deemed fair under the circumstances. Note that the division is intended to be fair and this may not mean equal.
Reasons for Unequal Division of Marital Assets
As Arizona is an equitable distribution state, reasons for an unequal division of marital assets include factors that would make an equal division patently unfair to one or both spouses. In dividing the marital assets, a judge will decide whether a precise 50/50 split of the assets would be fair or whether fairness would necessitate an unequal division based on factors that include:
- The length of the marriage
- The occupation and earning ability of each spouse
- The sources of income available to each spouse
- The employability and vocational skills of each spouse
- The earning capacity of each spouse
- The debts and liabilities of each spouse
- The age and health of each spouse
- Each spouse’s contribution to the marriage and building marital wealth
While an Arizona judge is empowered to divide the marital assets in an unequal manner, it should be mentioned that a judge who decides on an unequal division, even if it is equitable, must include in the court record the reasons why the unequal division is being ordered.
Prior to dividing the marital assets, however, the court must determine which assets are considered marital. Generally speaking, the marital assets will include most, if not all, assets a couple acquired over the course of the marriage. Otherwise, the property is usually considered to be separate if it was owned prior to marriage. Additionally, inheritances received during the marriage are also generally considered to be separate property. Separate property is not divided in divorce and remains the property of the respective owner spouse.
To further complicate things, it is possible for a spouse to convert separate property into marital property or commingle property. A piece of separate property can be converted to marital property by changing the title of the property to one of joint ownership. Commingling of separate and marital property can occur either intentionally or unintentionally, but it can make it very difficult for a court to determine whether the asset or what part of the asset should be considered separate or marital. A court can decide whether all of the property was commingled and converted into marital property or whether the original owner of the asset should receive reimbursement for the asset in whole or part.
Family Law Attorney
Division of the marital assets is a critical issue incident to a divorce. If you have questions about the process or how best to protect your interests throughout the divorce, the dedicated team at the Law Office of Bryce Cook is here for you. Contact the Law Offices of Bryce Cook today.