division of property in a divorce

Reasons for Unequal Division in Divorce

Arizona is a community property state. Sometimes, community property states are also referred to as “50/50” states. In community property states, all marital property is presumed to be owned equally by the spouses. As Arizona law requires an equitable division of the marital assets in a divorce, marital property is divided equally because of the presumption of 50/50 ownership of marital property. Equal division of property, however, is not always the case in Arizona divorces. Here, we will further discuss reasons for unequal division in an Arizona divorce.

Reasons for Unequal Division in Divorce

Arizona family courts, due to being in a community property state, operate under the presumption that property either spouse acquires during the marriage is marital property. This remains true even if the property is held in title by just one spouse. It is, however, a rebuttable presumption meaning that it is possible for a spouse to successfully assert full ownership over property acquired during the marriage under certain circumstances.

We turn our focus here to the division of asset that has been deemed marital, or community, property for purpose of asset division incident to divorce. As stated previously, it is most commonly determined that community property is equitably divided in half because each spouse carries a 50/50 ownership interest in the property. In the Arizona Supreme Court Toth decision, however, it was acknowledged that circumstances, which are largely rare, can still merit an unequal division of marital assets. In other words, sometimes equal division of community property would be unequivocally unfair.

In the Toth case, the spouses were only married for two weeks. The husband had purchased property with entirely separate funds. Under a totality of the circumstances, the court deemed that equal division of the assets would be patently unfair to the husband. The court took care to distinguish the Toth case so that it made it clear that unequal division was still to be the exception rather than the rule in Arizona. It emphasized the point that community property should not be subject to unequal division just to reimburse a spouse for separate funds that were used to purchase the property.

In addition to the exception to equal division of assets carved out in Toth, Arizona also recognizes claims for community waste. A community waste claim is made during divorce asserting that a spouse wasted community funds and you should be properly compensated for the money the other spouse wasted on items, people, or even services that brought benefit to neither you nor your marriage. When community waste has been successfully asserted, the other spouse may have several remedies, including being compensated for half of the money that was deemed wasted by your spouse, resulting in an unequal division during divorce. In addition, or similar to community waste, a court can consider damages to a spouse that arose because of the other spouse’s criminal conduct and other wrongful acts.

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