by: Scott David Stewart, Esq.
The decision to get a divorce is never easy. In the current recession, the decision is even harder to make as spouses look at their debts and wonder how they can make it financially without their partner, even if the marriage has become intolerable. As the mortgage payments, credit cards and other bills begin to mount, it is important for people to remember that they have options and staying in a broken marriage does not have to be one of them.
One of the biggest issues in any divorce is how to divide the property. Arizona is a community property state. This means that any assets accumulated during the time of marriage are community property and will be divided equitably between the spouses. Even if the property acquired during the marriage is only in one spouse’s name, it is presumed to be community property. Certain types of property generally are not considered community property, including any property owned prior to the marriage and any gifts or an inheritance left to only one spouse.
Assets acquired during the marriage are not the only types of community property. Debt incurred during the marriage also is community property. This means that even if the divorce order requires one spouse to pay off a certain debt, the other spouse still remains legally responsible for the debt and the creditor has the right to go after both spouses for repayment of the debt. In some instances, creditors may agree only to go after the spouse named responsible for the debt in the divorce decree, but creditors are not required to do this. Thus, even after the divorce, one spouse has the ability to destroy the other’s credit.
Generally in a divorce, the family home is the most valuable asset. In the divorce settlement, one spouse may keep the home, the house may be sold and the proceeds divided between the divorcing couple or the court may come up with another option. But what happens if the house is worth less than is owed or if the mortgage has not been paid in months and the bank is threatening foreclosure?
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