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The Difference Between Community Property and Sole & Separate Property

Arizona is a community property state. All property acquired during marriage is presumed to be community property.

The courts thus consider all property acquired during marriage to be community in nature and subject to and equitable division. Equitable means “fair” which can be 50/50, but there are often other “fair” ways to divide the assets (and liabilities). For example, one spouse may take more than half the assets, with an appropriate offset in liabilities.

Sole & Separate property is not subject to division under community property rules. Examples of sole & separate property include property owned by one party prior to the marriage or property one spouse received as a gift or through a will or inheritance, and did not co-mingle with community property.

Some property that was once separate may become community property if it is considered to be co-mingled or gifted to the community. Co-mingling can occur, for example, by depositing separate property funds into the joint bank account or by placing the other spouse on to the title. When the marriage is dissolved, the court attempts to make an equitable, though not necessarily equal, division of the community assets and awarding each spouse their separate assets.

What are Community and Sole & Separate Debts?

Generally all debts acquired during the marriage are community debts, where both parties share the responsibility, regardless of whose name the debts are in.

Sole & separate debts would be those that were incurred prior to the marriage. Student loans are generally considered to be the debt of the student and not the community.  In situations where one party abuses credit card debt or wastes community assets by running up debt, that party could be held liable for all of that debt.

How are Retirement Benefits Divided?

All retirement benefits, together with any gains or losses on the benefits, burned during the marriage, are community property.

Thus the retirement benefits are divided between the parties notwithstanding which party actually earned the benefit.  In general, with the exception of IRAs, retirement benefits must be divided by a special order of the court called a Qualified Domestic Relations Order. This order is prepared by a pension attorney who specializes in such orders.

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The Sampair Group provides legal assistance with family law matters such as divorce, separation, custody, relocation and orders of protection.

Contact an experienced divorce lawyer today by calling our offices or submitting the online contact form. We have offices throughout Arizona in West Valley (Glendale) and East Valley (Mesa).

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