Written by Canterbury Law Group

Appeals and Motions to Modify the Divorce Decree


After a divorce is finalized, either spouse may have grounds to appeal certain court rulings. Either a divorce decree modification request or a court judgment appeal may be made in order to accomplish this.

An overview of the procedure to challenge a court order pertaining to a divorce proceeding is provided below.

Having Your Divorce Judgment Reviewed

A state court of appeals can hear an appeal of a divorce court judge’s ruling. While the initial judge’s ruling in a divorce case is respected, it is uncommon, though not unheard of, for an appeals court to reject the lower court judge’s judgment.

An appeal can only address material mistakes that were made during the trial. This could be a case of factual, legal, or judicial misconduct.

Due to the fact that both parties to the divorce agreed to the terms of the settlement, divorce settlement agreements are typically unaffected by an appeal. A spouse can attempt to claim that there were issues with the way the agreement was created, which could create a problem with its enforcement.

Divorce Appeal Notice

A notice of appeal is given to the opposing party to start the appellate procedure. For filing and serving notice, there are detailed guidelines and timeframes. Your right to appeal could be lost if you don’t adhere to your county’s and state’s filing requirements.

The Appeal’s File

The Record on Appeal must be prepared once the notice of appeal has been submitted to the court and served on each party. The processes used by the states to record court transcripts differ. Ask the court clerk what documents are maintained there and how to get them for your appeal.

The clerk’s record consists of all the written materials—documents, papers, pleadings, etc.—that were submitted to the court. It contains every piece of evidence and document presented during the trial. Other court documents (like motions) that were not initially introduced at trial may be found in the Record on Appeal.

Every word spoken in court while a court reporter was present is recorded in the court reporter’s transcript, a typewritten booklet. It often includes all of the witness testimony, the arguments made by the attorneys, and any remarks made by the judge or the parties.

The appeals document

The written appellate briefs submitted by the attorneys for each party serve as the primary vehicle for argument on appeal. A brief is a piece of writing that presents the case’s legal arguments and supports them with citations to relevant statutes, case law, the reporter’s transcript, and records kept by the clerk.

After being hired, the parties’ divorce lawyers file their pleadings to the appeals court. Regardless of whether they first represented you, a lawyer must be retained in order to represent you in the appeal court. You will need to consult with your lawyer or get new counsel for your case.

When submitting a brief, the lawyer may be asked to specify whether or not oral arguments are necessary.

Oral Debate

If a request for an oral argument is made, the time allotted for each party to deliver its case will normally not exceed 15 or 30 minutes. There will be no witness summons and no consideration of fresh evidence.

You might retain the same trial court attorney to defend you on appeal, or you could get new counsel. The lawyer will go over the mistakes that were made in the trial court and how they contributed to the outcome of the initial divorce case.

Appellate Court’s Decision

The appellate court will issue its decision after receiving the Record on Appeal, the appellate brief, and any oral arguments. State-to-state variations in time exist. Typically, an appellate court can take as little as a month or as long as a year or more to rule on an appeal.

The appeal court has the option of upholding the trial court’s judgment or remanding the case back to the trial court for judgment revision or a fresh trial. In rare cases, the court may simply vacate (overturn) the judgment.

Divorce modification requests

The appeals process is costly and might not yield the outcomes an ex-spouse is hoping for.

The easiest way to get the divorce decree modified is to just ask for it, which is much less expensive and usually more effective. It is possible to change some aspects of the divorce, including spousal support, child support, child custody, and visitation, however some changes are simpler to make than others.

A “move to modify” must be submitted in order to request a change to a property settlement, child custody arrangement, or alimony payment. The same court where the divorce judgment was rendered is where this motion was filed.

The majority of states offer specific paperwork to fill out. To see if they are open, inquire with the state and county courts in your area.

When writing a motion to modify, you must provide evidence of new circumstances that call for a revision. For instance, the termination of employment may be cause for alimony or child support modification.

Each state has its own laws governing the modification procedure and the evidence required for the modification to be approved.

Although it is challenging, child custody arrangements can be changed. Following the approval of the custody agreement, courts generally reluctant to modify custody arrangements. However, if it is in the child’s best interest and a change is required due to external factors, they will.

The completed petition for modification must be submitted to the court and served on the ex-spouse. The court will set a date for a hearing where the arguments will be made.

You should provide a copy of your agreement with your petition if you and your spouse concur that a revision is required. The adjustment may be made by the court without a court presence being required.

Speak With One Of Our Divorce Attorneys In Scottsdale

Canterbury Law Group’s divorce attorneys in Phoenix and Scottsdale will handle your case with personal attention and always have you and your children’s best interest in mind when offering legal solutions. Our family lawyers can also help with divorce litigation, child custodylegal guardianshippaternityprenuptial agreements, divorce mediationcollaborative divorce, and more.

We are experienced divorce attorneys and will fight for you to get you the best possible outcome. Our law firm will represent you fully in court, so you can get on with your life. Call us today for an initial consultation. 480-744-7711 or [email protected]

*This information is not intended to be legal advice. Please contact Canterbury Law Group today to learn more about your personal legal needs.

Written by Canterbury Law Group

Military Divorce

While military divorces are not more complicated than civilian divorces, there are particular divorce procedures and requirements that apply to U.S. service members and their spouses. These differences may pertain to support payment compliance, service of process, residency or filing requirements, or the distribution of military pensions. The following is an outline of the laws that govern the divorce of U.S. servicemen and women.

Military Marriage Statutes

Both state and federal laws govern military divorce. For instance, federal rules may govern where divorcing spouses end up in court or how military pensions are shared, whereas state laws may govern the issuance of alimony and spousal support. The exact state laws applicable to a divorce depend on the state in which the divorce is filed.


Before a court may award military members or their wives a divorce, it must have “jurisdiction,” or the authority to hear the case. Generally, a person’s place of residence determines the court’s jurisdiction over them. However, for military personnel, jurisdiction may be the place where the person holds legal residence, even if the service member is stationed somewhere else.

Residency, Filing Requirements, and Proceedings Stays

Numerous states have decreased or removed the residency requirement in military divorces, allowing service personnel or their wives to petition for divorce in the state where they are stationed, even if they are not legal citizens.

In general, military members and their wives can petition for divorce in one of three states:

  • The state of residence of the filing spouse
  • State in which the service man is stationed.
  • The state in which a service member asserts legal residency

The reasons for divorce, including property division, child custody, and child support, are defined by the state where the divorce is filed. As a result, the specific conditions of a divorce will change based on that particular state’s laws.

It is important to note that active-duty service members have certain protections against court proceedings. Under the Servicemembers Civil Relief Act (SCRA), for instance, service members are protected from default judgment and can apply for a “stay” — a temporary halt — of any civil action, including child custody proceedings, initiated against them during active duty or within 90 days of their release from active duty.

This stay is in place so that service members can devote their time and attention to defending the nation while still being subject to court orders or verdicts while they are unable to appear in court. If a servicemember desires a delay that continues beyond 90 days, he or she may petition the court to grant it, but the court has the discretion to grant or deny any additional extensions.

Pensions and Military Benefits

Like civilian retirement benefits, military pensions are subject to distribution between spouses in the case of divorce. Depending on the jurisdiction, the Uniformed Services Former Spouses’ Protection Act (USFSPA) permits state courts to recognize military retirement money as either sole or communal property. While the USFSPA does not specify a method for distributing retired pay, the amount is often established and distributed in accordance with state regulations.

In addition, the Defense Finance and Accounting Service (DFAS) pays the former spouse’s portion of military retirement immediately if there were at least 10 years of marriage and 10 years of military service overlap (known as the 10/10 rule).

However, regardless of the length of the marriage, a court may sanction an offset payment to a military spouse who has been married for less than 10 years. In such a case, payment would come from the retiring spouse, not DFAS.

In addition to pension benefits, spouses of former military personnel are eligible for full medical, commissary, and exchange privileges following a military divorce if they meet the following criteria:

  • The couple was married for 20 years or more
  • At least 20 years of service are credited toward the service member’s retirement compensation.
  • There was at least a 15 year overlap between marriage and military duty

Matrimony and Child Support

There are particular restrictions regarding spousal maintenance (alimony) and child support in the military. The purpose of these regulations is to ensure that a service member’s family support obligations continue after a divorce or separation.

A court may enforce spousal and child support obligations in a number of ways, including by:

  • Court-order
  • Garnishment
  • Willful or Unwilling Allotment
  • A court may also mandate the paying spouse to retain life insurance to cover child or spousal support payments for a predetermined amount of time.

Consult a Lawyer Regarding Your Military Divorce

Because a military divorce needs understanding of laws that do not apply to civilian divorces, it is prudent to consult with a divorce attorney who has experience handling military divorce matters. An expert, local divorce attorney can assist you understand the many laws that may apply to your situation, your rights as member of the armed forces, and more.

Written by Canterbury Law Group

What Is Divorce Good For?


People contemplating divorce are typically aware of what to anticipate. They’ve observed divorces in the movies and often personally know at least a handful of people who have been through a divorce. In spite of this “second-hand” experience, facing your own divorce is one of the more frightening events in life.

Not only do you face a court-sanctioned ending of arguably one of the more meaningful relationships you have ever had, you also must begin to think about such unpleasant things as the division of property and new living accommodations. In many circumstances, there is also the terrible prospect of no longer seeing your children on a daily basis.

Predictability and divorce don’t go together. But if you have reasonable expectations, you will have the best chance of being pleased with the outcome of your divorce. Consequently, it is prudent to comprehend what a divorce can and cannot accomplish for you. So what is divorce good for, anyway?

What Divorce Can Do

Property Division

A divorce court will endeavor to split marital property in the most cost-effective manner possible. Most states will exclude from this division any property that was acquired prior to the marriage or that was acquired via gift or inheritance.

In some states (community property states), this involves a 50/50 split of the property acquired by the parties during the marriage. Other states (non-community property states) will look into the couple’s individual financial conditions, financial intentions for the future, and other pertinent considerations in trying an equitable allocation of the property.

Because the division of property is never predictable, if you have a strong need for some item of property, it may be best to have your attorney negotiate and settle the property distribution ahead of time with your spouse’s attorney.

For example, you may decide that, although you would really like to stay in the family home, you really need to keep your business. Therefore, you might choose the business over the house. In this way, you can attempt to reach a mutually agreeable property division agreement with your spouse.

Support Obligations

Divorce proceedings can help determine a couple’s support obligations. This can come in the form of child support and spousal support (also called “alimony”) (also called “alimony”).

Child support payments are now largely set by state law, but deviation from those standards are not uncommon. Also, child support orders may depend on the custody arrangements ordered. In general, spousal support largely relies on the specifics of each divorce and the divorcing couple’s financial circumstances. Therefore, here again, any attempt at predicting a court’s ultimate support decision is often difficult.

Child Visitation and Custody

Aside from the distribution of wealth, divorce also can help set child custody and visitation schedules. Likewise, this is not at all predicted. While courts frequently try to base their decisions on a set of factors deemed to promote the “best interests” of the child, case-by-case and court-by-court, these decisions can vary. After all, in making custody decisions judges are naturally influenced by their own beliefs, opinions and values.

Further, judges generally see and hear only the worst of people during heated custody proceedings. So, based on their limited “view” into the parents’ lives, a divorce court may not always make the “best” possible decision when it comes to custody. Here again, discussion and settlement are crucial choices to keep in mind. Everybody engaged in the divorce, especially the children, will benefit from a cooperative child custody arrangement.

What Divorce Can’t Do

Ensure Precise and Equal Distribution

A divorce cannot accomplish an exact or mathematically equal division of property and time with children. Because no two people, no two marriages, and no two divorces are alike, the judge who writes a divorce order must make the best decision with the limited time and information available. It may not always be the fairest possible decision that could have been reached, and it is certain not to favor you individually in every possible way.

Frequently, divorce courts must make the best of awful situations. For instance, there can be no appropriate custody agreement when one parent lives in Cheyenne, Wyoming and the other lives in Kalamazoo, Michigan.

Ensure Civil Relations

Even though a court can determine custody and visitation, it will not be present every Friday when mom drops off the children, nor will it spend the weekend with dad to ensure he does not make disparaging remarks about mom in front of the children. A court order is ultimately just a piece of paper. Mom and dad will STILL have to civilly deal with each other to carry out the terms of the custody and visitation order.

This includes interacting with the other parent, as divorce does not make your ex-spouse less of a parent to your child (one exception being cases of abuse).

Maintain Your Current Level of Living

You should also recognize that a divorce court can’t increase your salary to prevent your standard of living from declining once you divorce. Unfortunately, from a financial perspective, it is much more cost-effective for two individuals to live together and share expenditures than to run two separate households. There is little, if anything, the court can do to prevent a reduction in your standard of living after a divorce.

Resolve Emotional Issues

Finally, a court will not be able to punish your ex-spouse or morally vindicate you for all of the bad things that happened while you were married. In addition, the divorce process will not heal your emotional wounds or eliminate the need to mourn the failed relationship. That is your job, although you can seek assistance through therapists and support groups.

Still Want to Get a Divorce? Explore Your Options With an Attorney

As you determine the benefits of divorce, at least in your specific situation, you will likely have questions along the way. A great way to get those questions answered is by speaking with a legal expert today. A skilled divorce lawyer in your state can provide you with peace of mind.

Speak With One Of Our Divorce Attorneys In Scottsdale

Canterbury Law Group’s divorce attorneys in Phoenix and Scottsdale will handle your case with personal attention and always have you and your children’s best interest in mind when offering legal solutions. Our family lawyers can also help with divorce litigation, child custodylegal guardianshippaternityprenuptial agreements, divorce mediationcollaborative divorce, and more.

We are experienced divorce attorneys and will fight for you to get you the best possible outcome. Our law firm will represent you fully in court, so you can get on with your life. Call us today for an initial consultation. 480-744-7711 or [email protected]

*This information is not intended to be legal advice. Please contact Canterbury Law Group today to learn more about your personal legal needs.

Written by Canterbury Law Group

Divorce And Business Ownership

Eric and Ariel reached the terrible choice to divorce after 19 years of marriage. Ariel’s profession of collecting and selling various collectibles began before their marriage. However, now that she is getting a divorce, she is concerned about the future of her business. Will it be divided between her and Eric, or does she retain sole ownership as she owned it before to their marriage? Well, it depends.

A business will be evaluated as an asset in the case of a divorce. Whether it will be shared depends, among other things, on state rules, whether the business is considered marital property, and whether a prenuptial agreement is in existence. Learn more about divorce and company ownership by reading on.

Define Conjugal Property

The key determinant of whether an enterprise is subject to property division is whether it is classified as marital or separate property. The term “marital property” refers to the joint property of a married couple, which is more complicated than it may appear.

First, state rules influence the definition of marital property, which is typically community property or property susceptible to equitable division. Second, how the property is handled and even what happens to it throughout a marriage might influence how it is finally classified.

Community Property versus Equitable Distribution in Business Ownership upon Divorce

A divorcing couple must first establish whether they reside in a community property state or an equitable distribution jurisdiction. In states with community property, practically all property acquired during a marriage is considered joint property, while property owned prior to the marriage is considered separate. Obviously, the law is seldom straightforward, thus exceptions exist. Gifts and inheritances received by one spouse during a marriage are regarded separate property; however, combining them with communal property can alter their status.

In states with equitable distribution, the partition of property is less easy because a judge decides how it should be shared. Obviously, state laws establish specific standards about how property should be split. Additionally, the concept of equitable distribution is that property is divided “fairly” but not necessarily evenly.

When Is a Business Marital Property In the Context of Divorce?

The business will be considered marital property if the couples are co-owners. However, this is not the only method in which a business might be considered marital property. If a business was established after the marriage, it is likely to be regarded marital property.

Sometimes, businesses created by one spouse prior to marriage are not considered marital property. However, this is not always the case. For instance, if the non-owner spouse made contributions to the firm throughout the marriage, it may still be considered marital property. It is vital to remember that “contributed” can refer not just to direct contributions of time to the business, but also to caring for the home while the business owner ran the company.

Using a prenuptial agreement to safeguard business ownership

A prenuptial agreement is the greatest approach to ensure that a business is not subject to property division in the event of a divorce. Occasionally, a spouse may start a business after the wedding, in which case it would be impossible to include it in a prenuptial agreement. However, it is possible to obtain a postnuptial agreement to define business ownership, which is similar to a prenuptial agreement except that it is executed after the couple is married.

Written by Canterbury Law Group

10 Things To Do Before You File For Divorce and Realities of the Divorce Process

10 Things To Do Before You File For Divorce and Realities of the Divorce Process

Here are ten actions to take if you believe that your marriage is beyond repair and that divorce is inevitable.

Speak with a lawyer.

Find out what your legal obligations and rights are. Consider the scenario where you decide to relocate to your parents’ home with the kids while you wait for the divorce to be finalized. Moving in with your parents, even for a short time, could be a grave legal error.

Copies of documents.

Make copies of everything you can find by going through household files, including tax returns, bank statements, check registers, investment statements, retirement account statements, employee benefits manuals, life insurance policies, mortgage papers, financial statements, credit card statements, wills, Social Security statements, car titles, etc. It’s crucial to learn as much as you can about the company’s finances if your spouse runs a self-employed business. If you have financial information on your home computer, make copies of it.

List the belongings in the home and in the family.

The major possessions should be listed, including furniture, jewelry, art, appliances, and cars. Don’t forget to search your home’s storage spaces and your safe deposit box for valuables.

(Knowing all of the marital assets is crucial when it comes to dividing the property.)

Understand the household budget and costs.

Write down each monthly expense for utilities, a mortgage, and other living expenses as you go through your check register for the previous year, if you can. Keep track of the money you spend every day so you can figure out your monthly cash outlays as well.

Choose a family debt management strategy.

Determine the family debt, if any, and think about settling it before filing for divorce. One of the most challenging issues to settle during a divorce is how to divide the marital debt. When assessing debt, consider whether any of it was racked up by one spouse or the other before the wedding. The spouse who incurred it would be responsible for paying off this “non-marital debt,” which belongs to them.

Find out the exact salary of your spouse.

If your spouse receives a regular paycheck, it is simple to check a pay stub; however, if your spouse is self-employed, owns a business, or receives any portion of income in cash, you should try to keep track of the money coming in over the course of several months.

Analyze your earning potential in a realistic manner.

Perhaps you have been focusing solely on raising children while you have been out of the workforce for a while. Analyze your current employability and whether pursuing more education before getting divorced would be advantageous for you in the long run.

Look at your credit report.

If you don’t already have credit cards in your name, apply for them right away, use them, and build your credit. If you have a bad credit history, try to pay your creditors now so that you can raise your credit score before the divorce.

Make your own “nest egg” by yourself.

You ought to have access to your own money at all times. You will be responsible for paying bills if your spouse leaves and stops doing so until temporary support orders can be put in place. You will require funds for a retainer if you plan to initiate the divorce. Start putting money aside now, and when you have a sizeable nest egg of your own, consider starting divorce proceedings.

Prioritize spending time with your children.

Keep your kids’ schedules as regular as you can throughout the divorce process. If you and your partner can’t be with the kids together without fighting, schedule separate times for you both to be with them. Participate in your children’s school, sports, and extracurricular activities. Don’t speak poorly of your spouse in front of your kids. Put your kids first in everything you do.

The Scottsdale divorce attorneys at Canterbury Law Group handle complex divorce cases throughout Arizona, California, Nevada and New York. Their skilled litigation team provides no-nonsense legal counsel for family law cases at the highest level possible.

The law team at Canterbury thoroughly prepares clients while understanding that all cases have unique circumstances and laws vary by state and local jurisdiction. The Scottsdale divorce attorneys also prepare clients for the constant surprises that inevitably arise during the divorce process:

Length of divorce – Depending on your unique situation, divorce can take few months to well over a year, leaving issues that still need to be settled. The vast majority of matters resolve within one calendar year. More complex dissolutions with large asset bases and children, can take up to two years. At Canterbury Law Group, we help clients work out many divorce issues before entering court in attempt to eliminate or reduce long cases. The longer the case, the more expensive it is for both sides.

Court TV is not reality – Court TV may have constructed an unrealistic image of what court is like for the majority of divorce cases. In fact, most cases reach a settlement before needing to see a judge, or if you see a judge, it might only be for a few preliminary hearings and no trial if you elect to settle later.

Rescheduling is common – Expect your court dates to be rescheduled for other cases that take priority in your jurisdiction, such as criminal trials. You cannot insist upon a court date just because the court issued it. Rather, be prepared for rescheduling. Change is constant in a divorce proceeding.

Patience is needed – In most courthouses, your case will not be the only case scheduled for a hearing. Be prepared to sit and wait for other cases to be heard before yours. However, you must always be on time in the event the court is on time.

Everyone has an opinion – When you are going through a divorce, you will realize that everyone has an opinion. Ignore most of them because each case is unique, and no one can give you divorce advice better than your divorce attorney. Don’t rely on what you ‘hear’ or ‘read’ on the internet. Secure top legal counsel and let them steer you successfully to the resolution of your case so you can move on with your life. For more on divorce legal services, go to or call 480-744-7711.

Written by Canterbury Law Group

Divorce Timeline


Most people have no idea what to expect when they decide to get a divorce. Considering that divorce is a difficult legal process, it may be filled with unpleasant surprises and annoying delays. Reviewing a legal divorce timeline is always beneficial to give you a general idea of what to expect and make you feel more at ease during a difficult time.

The timeline below provides a general idea of how a divorce typically plays out, but your divorce may deviate slightly due to unique circumstances involving you and your spouse or unique legal requirements in your state.

1. Beginning the legal divorce process

One of the spouses hires a lawyer to begin the divorce process, and the attorney drafts a petition (also referred to as a complaint), which is a legal document outlining the grounds for the divorce as well as the terms for dividing assets, child custody, and other matters.

2. Making the complaint and serving it

The petition or complaint is submitted to the court by the attorney. The petition or complaint, along with a summons requiring the other spouse to respond, are served on that spouse by the attorney or the court.

3. Getting Your Partner’s Response to the Divorce Complaint

The served spouse has a set amount of time to respond (usually about three weeks). The response indicates whether or not the spouse who was served concurs with the petition or complaint. He or she is presumed to have accepted the terms of the petition or complaint if they fail to respond. The response—also known as an answer—describes the served spouse’s preferred method of handling divorce-related decisions.

4. Beginning the process of property division and exchanging documents

Documents and information about things like property and income are exchanged by the couple. The couple and the court can make decisions regarding property division, child support, and alimony by reviewing this information.

5. Engaging in negotiations or mediation

The couple may occasionally agree to settle all of their differences amicably through mediation or settlement. In some states, divorcing couples must go through this procedure.

If a settlement is reached, it is presented to the judge during a non-judicial hearing. The judge will inquire about a few fundamental facts and whether each party is aware of the agreement and chooses to sign it.

6. Getting any settlement agreement court approval

If the judge accepts the settlement, they issue the couple a divorce decree outlining the terms of their agreement. The case will go to trial if he or she does not approve it or if the couple cannot come to an agreement.

7. Taking part in a divorce trial

The judge decides the unresolved issues, such as child custody and visitation, child and spousal support, and property division, after attorneys for each side present evidence and arguments at trial. The judge then grants the divorce after coming to a conclusion.

8. Contesting the judge’s judgment

A judge’s decision may be appealed to a higher court by either spouse or both spouses. However, it is uncommon for an appeals court to reverse a judge’s judgment. Also keep in mind that if both spouses accept the terms of the settlement, it is typically not subject to appeal. But if something needs to be changed after the trial, you might be able to change the divorce judgment.

Speak With One Of Our Divorce Attorneys In Scottsdale

Canterbury Law Group’s divorce attorneys in Phoenix and Scottsdale will handle your case with personal attention and always have you and your children’s best interest in mind when offering legal solutions. Our family lawyers can also help with divorce litigation, child custodylegal guardianshippaternityprenuptial agreements, divorce mediationcollaborative divorce, and more.

We are experienced divorce attorneys and will fight for you to get you the best possible outcome. Our law firm will represent you fully in court, so you can get on with your life. Call us today for an initial consultation. 480-744-7711 or [email protected]

*This information is not intended to be legal advice. Please contact Canterbury Law Group today to learn more about your personal legal needs.

Written by Canterbury Law Group

Inheritance and Divorce

Learn whether a court can divide your inheritance in a divorce.

Not necessarily. For purpose of divorce, the law usually categorizes property as either “marital” or “separate.” As a general rule, marital property is subject to division between the spouses; separate property isn’t. This is true whether you live in a “community property” state (like California), which divides property on a 50-50 basis, or an “equitable distribution” state (like New Jersey), which apportions property based on what the court believes is fair under the circumstances.

Is My Spouse Entitled to My Inheritance in Divorce?

That depends on a number of factors, including where you live. Each state’s divorce laws will govern how to address inheritance, in community property states and equitable distribution states as well.

In the overwhelming majority states, an inheritance is considered separate property, belonging exclusively to the spouse who received it and it cannot be divided in a divorce. That holds true whether a spouse received the inheritance before or during the marriage. But in a state like New Hampshire, for example, courts may consider an inheritance to be divisible in a divorce (unless you can persuade a judge that it shouldn’t be).

Now here’s the rub—although your state may initially view an inheritance as separate property, your actions can change it into marital property. Sometimes that happens intentionally in what is called a “transmutation of property.”

An example of an intentional transmutation of property from separate to marital is where a spouse inherits a house, then puts the other spouse’s name on the deed. The spouses move in and share the costs of living there. In that scenario, if a divorce rolls around, the inheriting spouse would be hard pressed to convince a judge that the house was never intended to be marital property.

But let’s say the inheriting spouse never puts the other spouse’s name on the deed, and neither spouse lives in the house during the marriage. At some point down the road, however, the non-owner spouse contributes to improvements which increase the house’s value. At the time of divorce, a judge might determine that—although the house itself may not be marital property—the increase in value specifically due to the improvements is a part of the marital estate, and thus subject to division between the spouses.

The most common example of converting an inheritance to marital property is when the inheriting spouse “commingles” (mixes) the inheritance with marital assets. This can be intentional, but often it happens by mistake. For example, Uncle Zeke passes on and leaves you $10,000 in his will. After you and your spouse break out the bubbly and toast the kindly gentleman, you put the money in an existing savings account that’s in both your names, and which either of you can access at will. If you did that because you wanted to share the inheritance money with your spouse . . . great! Mission accomplished.

But if you thought that putting that money in the joint account was just for convenience, and that it would always remain yours alone, you may have put yourself behind the proverbial eight-ball. By commingling the inheritance with marital funds, you’ve likely converted it into marital property. You can make an argument to the court that this was never your intention, but you’ll have an uphill climb.

Can I Claim My Ex’s Inheritance Received After Divorce?

Sharing a spouse’s inheritance after divorce is a nonstarter, unless your divorce judgment specifically addresses that topic.

That said, there is a situation where an ex-spouse’s post-divorce inheritance could come into play. If you’re receiving spousal support (alimony) or child support, you might be able to petition the court to increase the support amount, based on that inheritance or any interest income the principal is making.

Courts usually allow modification of support—both up and down—for a variety of reasons, such as a job loss, a spouse or child becoming disabled, or a spouse’s substantial pay increase (again, depending on the laws in your state).

You’d first have to see whether your state views an inheritance as a potential basis for a modification request. If it does, you may have viable grounds to seek an increase in support. Of course, this is going to depend in large measure on how significant the inheritance is. Your best bet for success is when the inheritance has substantially enhanced your ex-spouse’s standard of living.


Written by Canterbury Law Group

Marital Property: Do’s and Don’ts

Marital Property: Do's and Don'ts

You and your partner have likely discussed how you will combine your property if you are planning to get married. For example, one of you may decide to vacate the apartment and host a garage sale to dispose of excess kitchen equipment or furniture. However, it may be prudent to consider how this property will be divided in the event of a divorce, as well as the fundamentals of managing your marital property.

When a couple divorces, the marital property (that which was acquired during the marriage or was otherwise shared) is divided in accordance with the state’s law regarding the division of marital property. A few states have “community property” laws that result in an approximately 50/50 division of marital assets. When dividing marital property, the majority of states use a “equitable distribution” procedure that takes into account the needs and assets of each spouse.

Regardless of your state’s laws and your family’s unique circumstances, the following tips will assist you in deciding how to manage your marital property most effectively.

The concept of marital property becomes significant upon marriage, despite the fact that the issue rarely arises in everyday life. All possessions and interests acquired by a couple during their marriage are referred to as “marital property.” Most married couples do not even consider understanding or keeping track of their marital property. However, if a divorce becomes a reality, ownership questions arise.

Arizona Marital Property Definition

Arizona is one of the few states that follows a community property approach to classifying marital property, as opposed to the majority of states that use an equitable distribution approach. The term “community property” refers to all property acquired during the marriage that is owned equally by both spouses and therefore will be divided equally upon divorce. In contrast, equitable distribution divides the marital estate in a “fair” manner, giving the court greater discretion to determine what is fair.

A Glance at Arizona’s Marital Property Laws

Statutes are the best source of information, but they are typically not written in a user-friendly manner. Consequently, it can be beneficial to also read a summary of the statute written in plain English. In the table below, you will find an overview of Arizona’s marital property laws as well as links to relevant statutes.


25-211 et seq., Title 25, Chapter 2, Article 2, Arizona Revised Statutes (Property Rights and Contract Powers)

Is Community Property Acknowledged?


What is considered common property?

All property acquired by either spouse during the marriage, with the exception of property acquired by only one spouse:

As a gift or bequest; or

After service of a divorce, legal separation, or annulment petition (as long as the petition results in a decree).

What is considered to be separate property?

In addition to the exceptions listed above, real and personal property owned by one spouse prior to the marriage, as well as any rent, profit, or appreciation in value, are considered separate property.

What You Should Do to Manage Marital Property

Consider entering into a prenuptial or premarital agreement prior to marriage to specify which assets are exempt from division in the event of death or divorce.

Do keep accurate and comprehensive books and records to establish the separate nature of any property you wish to keep separate from the marital estate. You may wish to maintain separate ownership of property you owned prior to marriage, as well as gifts or inheritances you receive during the marriage.

If you’re concerned about keeping your separate property in your family (or as your personal asset) after your death or divorce, continue to keep it separate throughout your marriage. This generally means that you should not “commingle” property you owned prior to marriage with property you and your spouse acquire during the marriage, or it may become difficult — if not impossible — to legally determine whether the property in question is separate or marital.

Be aware that the increase in value of nonmarital property may be deemed marital, entitling each spouse to a portion of the increase upon divorce or death of the property owner. This is particularly true if the increase in value (or “appreciation”) is considered “active” as opposed to “passive.” For example, passive appreciation is the increase in value of a bank account due to interest earned or the increase in property value due to standard inflation. Active appreciation, on the other hand, is the result of effort, such as painting a rental property or actively managing a stock portfolio.

Use only your separate property to acquire additional property that you want to be considered separate. In other words, a boat purchased with pre-marriage funds and maintained in a separate account after the marriage is considered separate or non-marital property. However, if your spouse pays for a portion of it or even helps maintain it, the boat may no longer qualify as separate property.

If you wish for the proceeds of any personal injury case won during the marriage to retain their status as separate property, you must keep them separate. The money you receive from a personal injury lawsuit belongs solely to you, with the exception of any portion that reimburses you for lost wages or compensates your spouse for the loss of your services or companionship.

Managing Marital Property: Avoid These Mistakes

If you use separate funds to pay off a joint debt, those funds may lose their separate status.

Do not deposit income earned during the marriage into separate bank accounts. Generally speaking, income earned during a marriage is considered marital property, and depositing that income into non-marital accounts can result in “commingling,” so that the non-marital account is no longer considered separate property.

Even if you intend to keep track of which portion is separate, do not open a joint bank account with non-marital funds. If you want to keep non-marital assets separate, it’s much more prudent to maintain separate accounts.

Do not assume that if you owned property before your marriage, none of it will be considered marital property. For instance, if the value of the home you owned prior to the marriage increases during the marriage due to your and your spouse’s efforts to maintain and improve it, your spouse may be entitled to a portion of that increase.

Do not assume that a business you owned prior to marriage will remain solely your separate property after marriage. If the value of your business or professional practice increases during your marriage due in part to your spouse’s contributions, your spouse may be entitled to a portion of the increase upon divorce or your death. These contributions can be overt, such as bookkeeping or entertaining clients, or covert, such as caring for the home and children so that you can focus on running the business.

Obtain Expert Assistance in Managing Your Marital Property

Generally, marital property is not an issue unless a couple is divorcing, but it could be a factor in a prenuptial agreement or other situations. If you have any legal questions regarding marital property, you should seek professional legal assistance. Find a local family law attorney and obtain peace of mind.

Need a Legal Separation Lawyer in Scottsdale or Phoenix?

As family court lawyers, we have built a network of Arizona mediators, attorneys, tax specialists, estate planners, financial planners, child specialists, real property appraisers, adult and child therapists and parenting coordinators who are here for you if you ever need them. Our lawyersdivorce mediators and collaborative divorce attorneys in Scottsdale are here to make your divorce less stressful and keep you in control and the costs contained. Call today for an initial consultation at 480-744-7711 or [email protected]. Our family lawyers can also help with divorce litigation, child custodylegal guardianshippaternityprenuptial agreements, and more.

*This information is not intended to be legal advice. Please contact Canterbury Law Group today to learn more about your personal legal needs.

Written by Canterbury Law Group

Divorce Property Division

Divorce Property Division

Apart from child custody, one of the primary concerns of a divorcing couple is what to do with shared property. Who is going to get the house? Who is going to get the dog? The answer is contingent upon the state’s divorce laws and the spouses’ ability to reach an agreement.

This article addresses some of the most frequently asked questions about divorce property division.

When We Divorce, What Happens to Our Property and Debt?

The simplest way to deal with property during a divorce is to agree on how to divide it between you. When divorcing couples are unable to agree on how to divide marital property amicably, the matter may be brought before a judge in family court.

Under state law, property division is generally handled in two ways:

Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin, as well as the US territory of Puerto Rico, are community property states. This means that property acquired during the course of the marriage is considered community property (although there can be exceptions). Typically, community property is divided evenly during a divorce, while separate property is retained by its owner.

Equitable Distribution: In general, all other states adhere to equitable distribution. Rather than simply dividing the property’s value in half, a judge (or the couple themselves) will determine what is equitable or fair. In practice, this may mean that the higher-earning spouse receives two-thirds of the property, while the other spouse receives only one-third.

Take note that when courts divide property, this does not necessarily mean that the property is split literally (or physically). A court will calculate the total value of the marital estate and allocate a percentage to each spouse. Each spouse must secure that amount in their own unique way, which may include selling a home, transferring a portion of an IRA, or buying out a spouse’s interest in a business. These are the property division details that a divorce attorney assists you in determining.

What Is the Distinction Between Community and Private Property?

Community Property: Unless otherwise specified, this term refers to all property, assets, and debt acquired during the marriage. For example, a loan may have been taken out specifically for one person. It could be their own debt.

Separate Property: This term refers to property acquired prior to the marriage, as well as gifts, court awards, inheritance, and pension proceeds received during the marriage. Separate property acquired remains separate property (e.g., a boat bought with inheritance money).

Be aware that separate property can become community property if it is commingled. For instance, an inheritance used to pay off a mortgage, or a business started prior to marriage and sustained by the marriage.

Property acquired with commingled funds: If you acquire or maintain property using a combination of separate and community funds, a court is likely to determine that it is community property. If you wish to keep your property separate, you must work diligently to do so; otherwise, it will become commingled and converted to community property.

Who Gets the House in Property Division?

Who gets the house is a matter of circumstance. If there are no children, courts distribute the marital home differently.

Neither party has the legal right to demand the other’s departure, but one partner can always make the request. That said, it may be illegal for them to lock you out before the divorce is finalized, while you still own the home. You may contact the authorities if they do so. The obvious exception is in cases of domestic violence in which one partner has been served with a restraining order.

Caution: Unhappy relationships can become extremely toxic at times. Take care not to fabricate domestic violence in order to evict the other partner. If the judge believes you’ve done this, you could jeopardize your right to marital property, including ownership of the house.

If you and your spouse are unable to agree on who gets the house, the court will make the decision based on its rules, state law, and the type of property system in your state.

If you have children, the parent who is responsible for the majority of child rearing typically retains the marital home.

If one partner purchased the house with their own money and there are no children, they can generally keep it and require the other to vacate.

Need a Legal Separation Lawyer in Scottsdale or Phoenix?

As family court lawyers, we have built a network of Arizona mediators, attorneys, tax specialists, estate planners, financial planners, child specialists, real property appraisers, adult and child therapists and parenting coordinators who are here for you if you ever need them. Our lawyersdivorce mediators and collaborative divorce attorneys in Scottsdale are here to make your divorce less stressful and keep you in control and the costs contained. Call today for an initial consultation at 480-744-7711 or [email protected]. Our family lawyers can also help with divorce litigation, child custodylegal guardianshippaternityprenuptial agreements, and more.

*This information is not intended to be legal advice. Please contact Canterbury Law Group today to learn more about your personal legal needs.

Written by Canterbury Law Group

Annulment in Arizona

Are you wondering if you are eligible for an annulment? Learn about the grounds for annulment in Arizona and how to obtain one.

Annulment is a frequently misunderstood legal concept, owing to the fact that popular culture and religion have promoted divergent and frequently erroneous views of what an annulment is in family law.

This article discusses “civil annulments,” as opposed to “religious annulments,” which can be granted only by a church or clergy member and have no legal effect on your marital status.

Annulments and divorces are similar in that they both establish marital status. However, the critical distinction between them is that divorce terminates an existing, valid marriage, whereas annulment simply declares that what everyone believed was a marriage was never actually one. An annulled marriage never existed in the eyes of the law.

Arizona’s Grounds for Annulment

There are several circumstances in which you may petition an Arizona court to annul your marriage:

  • One of the parties was married to another individual (bigamy).
  • The parties are blood relatives.
  • At the time of the marriage, one of the parties was a minor and did not obtain the consent of a parent or guardian.
  • One of the parties, or both, lacked the mental capacity to marry.
  • Both parties lacked the physical ability to marry.
  • At the time of the marriage, one or both parties were intoxicated.
  • The parties lacked the intent to enter into a marriage contract, either one of them or both.
  • The parties failed to obtain an official marriage license in a timely manner.
  • Instead of marrying each other in person, the parties used a proxy (substitute).
  • One of the parties committed fraud in order to obtain the consent of the other party to the marriage.
  • The one party used coercion (legally referred to as “duress”) to coerce the other party into agreeing to marry.
  • The parties have not engaged in sexual relations or one of the parties has refused to engage in sexual relations.
  • One of the parties fabricated information about his or her religion.
  • One of the parties omitted information about his or her previous marital status.
  • One of the parties planned to violate a premarital agreement in secret.

How Can I Obtain a Court Order Terminating My Marriage?

Due to the fact that annulment actions are heard in Arizona’s superior (trial) courts, you must file your paperwork at your local courthouse. By court order, an Arizona superior court judge can declare a marriage null and void and annul it. The “plaintiff” (the party seeking annulment) should file an annulment petition, and the defendant should respond. Additional documents may be required, and both parties must adhere to the rules governing service of process. Both will be summoned to appear in court, where the court will hear testimony, consider written submissions and applicable law, and issue an order.

Because annulments have significant financial and custodial consequences, it is critical to consult with a lawyer prior to proceeding.

Certain individuals fear that if their marriage is annulled, the paternity of their children will be questioned. Technically, this is correct. Due to the fact that an annulled marriage is invalid, the children born of the “marriage” are illegitimate, as if they were born to single parents. This, however, is a technical distinction with little practical significance, as Arizona law provides that “every child is the legitimate child of its natural parents and is entitled to support and education in the same manner as if born in lawful wedlock.” Thus, all children in Arizona receive the same level of protection and support regardless of their parents’ marital status, whether they are divorced or never married. While that statute does not affect parental rights, the courts in Arizona have also determined that parents of children born outside of marriage have co-equal custody of their children once paternity is established.

In Arizona, a presumption of paternity is created (a strong legal assumption that the alleged father is the biological father) if any of the following are true:

the father and mother were married within the ten months preceding the child’s birth, or the child is born within the ten months following the marriage’s termination by death, divorce, or annulment.

  • Genetic testing establishes at least a 95% probability of paternity.
  • A birth certificate is signed by both the mother and father of an unmarried child, or
  • Both parents sign a notarized or witnessed statement acknowledging paternity.
  • Thus, the majority of children born out of annulled marriages in Arizona are almost certainly covered by a paternity presumption. If a father wishes to contest this presumption, he must establish his paternity through “clear and convincing” (very strong and substantial) evidence.

Additionally, the Arizona court hearing the annulment case will determine parentage and enter custody and child support orders.

Because an annulled marriage is legally regarded as never having been valid, courts in the majority of states lack the authority to award alimony or divide property or debts. This is because there cannot be a marital estate without a valid marriage. However, Arizona is unique in that it has a more generous statute. According to Arizona law, when a marriage is annulled, the courts must divide the property between the spouses.

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