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When May an Arizona Family Court Divide Community Property Unequally?

In the State of Arizona, the division of marital property during a divorce is governed by community property laws. Under the Arizona’s community property statutes, property acquired by either spouse during the marriage is generally presumed to be community property. Community property is subject to “equitable” division upon the dissolution of the marriage. A similar concept applies to debts as well, with a community debt also being divided equitably between the parties. Often, equitable division will mean equal division, but that is not always necessarily true as various situations may result in a court determining that an unequal division is warranted.


Arizona statute provides that “the court shall . . . divide the community, joint tenancy and other property held in common equitably, though not necessarily in kind . . . .” ARIZ. REV. STAT. ANN. § 25-318(A) (emphasis added). However, “[i]n dividing property, the court may consider all debts and obligations that are related to the property, including accrued or accruing taxes that would become due on the receipt, sale or other disposition of the property.” ARIZ. REV. STAT. ANN. § 25-318(B). “The court may also consider the exempt status of particular property . . . .” Id.


Section 25-318 clarifies that equitable division must be made with “without regard to marital misconduct.” § 25-318(B). However, the statute also states that it “does not prevent the court from considering all actual damages and judgments from conduct that resulted in criminal conviction of either spouse in which the other spouse or a child was the victim . . . .” ARIZ. REV. STAT. ANN. § 25-318(C). Additionally, the statute “does not prevent the court from considering . . . excessive or abnormal expenditures, destruction, concealment or fraudulent disposition of community, joint tenancy and other property held in common.” Id.


The court’s goal in dividing property equitably is to achieve a fair division of property, and the court has some discretion in making these determinations based on the specific circumstances of each separate case. See Toth v. Toth, 946 P.2d 900, 903 (Ariz. 1997). As the Arizona Supreme Court has noted, the Arizona legislature “contemplated that the trial court should not be bound by any per se rule of equality, but rather intended the court to have discretion to decide what is equitable in each case.” Id. In other words, in making an equitable division, Arizona courts are not limited to scenarios involving crime, waste, or fraud when making an unequal division of community property or debt. See id. at 903-04. So, while an equal division may be a starting point in dividing community property and debts, the court may deviate from an equal distribution if it finds that an unequal division is more appropriate given the circumstances. See id. at 903.


For example, in Toth, the Arizona Supreme Court considered the ruling of a divorce case in which a trial court awarded unequal distribution of jointly owned property. See Toth, 946 P.2d at 900-04. The Toth Court began its analysis by determining that property owned in joint tenancy is treated like community property for purposes of the dissolution of a marriage. See id. at 901-03. Describing the short duration of the marriage and noting that specific piece of property at issue was purchased using only the husband’s sole and separate funds, the Toth Court upheld the trial court’s unequal division of property. See id. 903-04. The Toth Court reasoned that “[c]ommunity property rests on the assumption that the two spouses worked together to accumulate property for the community, each contributing in pecuniary or other ways.” Id. at 903. Given the duration of the marriage and lack of a pecuniary contribution by the wife, the Toth Court determined that the trial court had a sound reason for unequal distribution under the equitable division standards. See id. at 903-04.


If you are going through a divorce in the State of Arizona and have questions about the division of property, it is advisable to consult with an experienced family law attorney who can provide guidance based on the specifics of your situation and help you understand your rights and obligations. If you are in need of an Arizona attorney to help you with a family law case in the State of Arizona, contact Huffman-Shayeb Law, PLLC to schedule a consultation.


Disclaimer: This publication is for educational and informational purposes only, and represents Huffman-Shayeb Law, PLLC’s understanding of the present state of Arizona law. This publication does not constitute legal advice or counsel, and should not be construed as a comment on the merits of any particular case. It should be noted that the laws and requirements of the State of Arizona may change at any time and that this information may not be complete or correct.