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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.

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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.

Statute(s)

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

Is Community Property Acknowledged?

Yes

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?

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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 lawyers, divorce 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 custody, legal guardianship, paternity, prenuptial 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.

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Community Property

Community property issues can arise during divorce proceedings and after a spouse's death. When spouses divorce or pass away, they are frequently left with the arduous task of dividing property and proceeds acquired during the marriage. This may include tangible assets (such as stocks, bonds, and legal title), as well as intangible assets (such as automobiles, furniture, paintings, and family homes) and debt. In some states, property acquired during the marriage is considered "community" property and is frequently divided 50/50 in the event of a divorce. The manner in which states treat "community property," also known as "marital property," will determine what happens to debt or assets upon divorce. Common Property Statutes State laws govern community property, and not all states have such laws on the books. Community property laws in nine states (and Puerto Rico) govern the division of debt and property in a divorce. Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin are included in this group. In such states, property is typically divided equally, whereas in all other states, distribution is determined by a judge based on what is equitable or fair. Alaska is distinctive in that divorcing couples have options. Despite the fact that each state determines how property is divided upon divorce, the laws may vary slightly. For instance, some states, such as California, divide debts and assets "equally" (50/50), while others, such as Texas, divide them "equitably." Even in community property states, courts in jurisdictions that apply the equitable distribution doctrine consider numerous factors, some of which justify unequal distribution of property or debt. Because these laws affect property and other valuable assets, they can have a profound impact on the future of a spouse who is forced to share a portion of an asset that was previously considered separate property. In the absence of a prenuptial agreement between the parties, property distribution will be governed by the law of the state in which the couple was married. Compared to separate property, community property In most cases, property acquired during a marriage belongs to both partners. This is particularly true in states where community property laws exist. Despite the fact that not all states have such laws, property acquired during the duration of a marriage is distributed equally upon divorce. The following are examples of community property: Earnings of each spouse during the marriage Home and furnishings acquired with marital funds during the marriage (reword) Investments and operations of a company generate interest income. The mortgage and family home Separate property, on the other hand, is that which was owned prior to the marriage, was inherited or received as a gift during the marriage, or was earned after the date of separation by either spouse. These are examples of separate property: Bank accounts that are held independently Separately held inheritances acquired during a marriage presents to either partner Personal injury compensation Any property acquired after the dissolution of a marriage is considered separate property. Courts have also categorized certain properties as "partially" or "quasi" community property. This includes assets that would have been considered separate property at the beginning or during the marriage, but have become marital property as a result of co-mingling or other circumstances. Considerations a Judge Might Employ to Determine Property Division A judge may consider several factors when determining how to divide property acquired during the marriage. A judge will consider 1) the earning capacity of each spouse, 2) which parent is the legal custodian of the children (if any), and 3) the existence of fault grounds such as adultery or cruelty. Consequently, even in states with community property, property may not always be divided 50/50. Instead, courts will consider the following factors to determine whether an unequal property division is necessary: One spouse may receive a larger share of the marital assets if fault-based grounds for divorce exist (such as adultery, cruelty, etc.). Loss of Continuing Benefit: Whether one spouse will incur the loss of compensation they would have received had the marriage continued. Disparity of Earning Capabilities: Whether disparities exist between incomes, earning capacities, and business opportunities that may impact property division. Health and Physical Conditions: Whether the physical health or condition of the spouses may impact the property division. Age Disparities: Whether there is a disparity between the ages of the spouses that could affect one's ability to work or receive retirement benefits. The size of the estate can have an impact on the distribution of property. The larger the estate, the more likely the court is to favor a 50/50 split. The likelihood that one of the spouses will receive a substantial inheritance. Gifts to a Spouse: After a divorce, gifts are typically converted to separate property. A spouse who obtains primary custody of children under the age of 18 may affect the division of property. Consult with a Divorce Lawyer Concerning Community Property Legal issues surrounding a divorce can be overwhelming in number. Property matters, alimony, child custody, child support, division of retirement benefits accrued during the marriage, visitation rights, and other legal matters must all be handled with care. Finding the appropriate divorce attorney is crucial. Contact a local divorce attorney with experience in your area today.

Community property issues can arise during divorce proceedings and after a spouse’s death. When spouses divorce or pass away, they are frequently left with the arduous task of dividing property and proceeds acquired during the marriage. This may include tangible assets (such as stocks, bonds, and legal title), as well as intangible assets (such as automobiles, furniture, paintings, and family homes) and debt.

In some states, property acquired during the marriage is considered “community” property and is frequently divided 50/50 in the event of a divorce. The manner in which states treat “community property,” also known as “marital property,” will determine what happens to debt or assets upon divorce.

Common Property Statutes

State laws govern community property, and not all states have such laws on the books. Community property laws in nine states (and Puerto Rico) govern the division of debt and property in a divorce. Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin are included in this group. In such states, property is typically divided equally, whereas in all other states, distribution is determined by a judge based on what is equitable or fair.

Alaska is distinctive in that divorcing couples have options.

Despite the fact that each state determines how property is divided upon divorce, the laws may vary slightly. For instance, some states, such as California, divide debts and assets “equally” (50/50), while others, such as Texas, divide them “equitably.” Even in community property states, courts in jurisdictions that apply the equitable distribution doctrine consider numerous factors, some of which justify unequal distribution of property or debt.

Because these laws affect property and other valuable assets, they can have a profound impact on the future of a spouse who is forced to share a portion of an asset that was previously considered separate property. In the absence of a prenuptial agreement between the parties, property distribution will be governed by the law of the state in which the couple was married.

In most cases, property acquired during a marriage belongs to both partners. This is particularly true in states where community property laws exist. Despite the fact that not all states have such laws, property acquired during the duration of a marriage is distributed equally upon divorce.

The following are examples of community property:

Earnings of each spouse during the marriage

Home and furnishings acquired with marital funds during the marriage (reword)

Investments and operations of a company generate interest income.

The mortgage and family home

Separate property, on the other hand, is that which was owned prior to the marriage, was inherited or received as a gift during the marriage, or was earned after the date of separation by either spouse.

These are examples of separate property:

  • Bank accounts that are held independently
  • Separately held inheritances acquired during a marriage
  • presents to either partner
  • Personal injury compensation
  • Any property acquired after the dissolution of a marriage is considered separate property

Courts have also categorized certain properties as “partially” or “quasi” community property. This includes assets that would have been considered separate property at the beginning or during the marriage, but have become marital property as a result of co-mingling or other circumstances.

Considerations a Judge Might Employ to Determine Property Division

A judge may consider several factors when determining how to divide property acquired during the marriage. A judge will consider 1) the earning capacity of each spouse, 2) which parent is the legal custodian of the children (if any), and 3) the existence of fault grounds such as adultery or cruelty.

Consequently, even in states with community property, property may not always be divided 50/50. Instead, courts will consider the following factors to determine whether an unequal property division is necessary:

  • One spouse may receive a larger share of the marital assets if fault-based grounds for divorce exist (such as adultery, cruelty, etc.).
  • Loss of Continuing Benefit: Whether one spouse will incur the loss of compensation they would have received had the marriage continued.
  • Disparity of Earning Capabilities: Whether disparities exist between incomes, earning capacities, and business opportunities that may impact property division.
  • Health and Physical Conditions: Whether the physical health or condition of the spouses may impact the property division.
  • Age Disparities: Whether there is a disparity between the ages of the spouses that could affect one’s ability to work or receive retirement benefits.
  • The size of the estate can have an impact on the distribution of property. The larger the estate, the more likely the court is to favor a 50/50 split.
  • The likelihood that one of the spouses will receive a substantial inheritance.
  • Gifts to a Spouse: After a divorce, gifts are typically converted to separate property.
  • A spouse who obtains primary custody of children under the age of 18 may affect the division of property.

Consult with a Divorce Lawyer Concerning Community Property

Legal issues surrounding a divorce can be overwhelming in number. Property matters, alimony, child custody, child support, division of retirement benefits accrued during the marriage, visitation rights, and other legal matters must all be handled with care. Finding the appropriate divorce attorney is crucial. Contact a local divorce attorney with experience in your area today.

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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.

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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?

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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 lawyers, divorce 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 custody, legal guardianship, paternity, prenuptial 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.

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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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Different Types of Separation

What does the term “separated” mean? Discover the distinctions between trial separation, permanent separation, and legal separation.

When it comes to marriage, separation is not synonymous with divorce—even if you have a court-ordered “judgment of separation.” Separation is when you live apart from your spouse but remain legally married until you obtain a divorce judgment. While a separation does not terminate your marriage, it does affect your financial obligations to your spouse until the divorce is final.

Separation is classified into three types: trial, permanent, and legal. In the majority of states, only one of the three (legal separation) alters your legal status—but all three have the potential to impair your legal rights.

Separation of Trials

If you and your spouse feel the need for a break from the relationship, one option is to live apart while deciding whether to divorce—a process known as “trial separation.” Legally, little changes during a trial separation—all applicable marital property laws remain in effect. For instance, a court will consider the money you earn and the items you purchase during the trial separation to be property acquired by a married person. This frequently means that you and your spouse jointly own the property (depending on your state’s property ownership laws).

If you and your spouse separate but intend to reconcile, it’s a good idea to write an informal agreement outlining the separation rules. For instance, your trial separation agreement may address the following:

  • whether you’re going to continue sharing a joint bank account or credit cards.
  • how you intend to budget your expenditures
  • who will continue to reside in the family home
  • how you intend to split expenses, and
  • If you have children, discuss how and when you will spend time with them.
  • If you decide to divorce, you may be able to use this trial separation agreement as a template for a marital settlement agreement.
  • If you and your spouse agree that reconciliation is impossible, your trial separation becomes permanent.

Permanent Distancing

If you live apart from your spouse with no intention of reconciling but are not divorced, the law considers you to be permanently separated.

How Separation from Your Spouse Affects Your Rights

Depending on the local law, a permanent separation may alter the property rights of spouses. For instance, in some states, assets and debts acquired during a permanent separation are considered to belong exclusively to the spouse who acquired them. Once a couple is permanently divorced, each spouse assumes sole responsibility for any debts incurred. Similarly, spouses who divorce permanently lose their right to any property or income acquired by the other.

Why Does the Date of Final Divorce Matter?

Due to the fact that spouses’ rights to each other’s property and obligations to pay debts change significantly as of the date of a permanent separation, spouses frequently argue bitterly about the precise date of their permanent separation. For instance, if your spouse left in a huff and spent a month sleeping on a friend’s couch, but you did not discuss divorce until after the month passed, the date the separation became permanent may be unclear. That means that if your spouse earned a sizable bonus at work during that month, you may be able to argue that you are entitled to a portion of the bonus.

If you move out of the house and do not anticipate a long-term reconciliation with your spouse, reconsider going out or spending the night together just for the sake of old times. If you reconcile briefly, you risk changing the date of separation and becoming financially responsible for your spouse during a time when you believed you were solely responsible for your own.

After you have legally separated from your spouse and reached basic agreements regarding your joint assets and debts, you are not required to divorce immediately. You may choose to remain married for a variety of reasons, including avoiding disruption of your children’s lives or retaining insurance coverage. Or, in some cases, preserving the status quo is simply more convenient than pursuing a divorce. On the other hand, you may decide to divorce as soon as the paperwork is finalized, or when the required separation or waiting period in your state expires.

Is Separation Required Prior to Divorce in My State?

Certain states’ laws require spouses to separate before a divorce can be finalized. State laws governing required separations vary in detail—for example, many states require spouses to live “separately and apart” for a specified period of time before the court will accept a divorce petition (formal request), while others do not require separation until after the petition is filed. If you file before meeting the requirements for separation, the court may dismiss your case. Other states may require spouses to live apart during the divorce process.

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Legal Separation Before Divorce

Legal Separation Before Divorce

An arrangement ordered by the court, a legal separation is when married couples live apart from each other and lead independent lives. It is a popular option when the parties concerned are considering the future of their relationship abut also want to ensure financial responsibilities and other boundaries are going to be honored by both sides. In some areas, this is a necessary step in the divorce process. Read on to learn more.

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Facts To Consider

  • The court may order specific obligations in the areas of finance, visitation of a child or children as well as custody of a child or children and support for a child or children.
  • Although legally separated there may be particular benefits there are entitlements too.
  • For some people spiritual beliefs and financial reasons as well as for the wellbeing of minor aged children may be a factor in obtaining a legal separation versus a divorce.
  • A legal separation is an agreement ordered by the court where the two parties have separate lives, and this means they usually live separately.
  • Legally separated couples can sometimes remain “insured” on the other person’s health, dental and vision insurance—check with your carrier before going this route.

How Does It Work?

There are many reasons for wanting a legal separation including:

  • Religious reasons forbidding divorce, whereas legal separation allows the majority of the benefits of divorce.
  • When the marriage still has the possibility of recovery.
  • Legal separation is sometimes best for a couple with minor aged children, promoting stability.
  • The retention of retirement and health benefits.

Some couples choose this route without a court order and many are embracing informal separations and no-fault divorce cases, making legal separation in a formal sense less common than it used to be. When the separation date arrives, the party’s ability to spend money from a bank account or credit card held in both names is limited – as well as bringing in controls over vehicles and property. Each party following the separation ate becomes responsible for their own finances.

Legal Separation Benefits

Once a couple have reached their tenth wedding anniversary certain future benefits may be contended with. When deciding to separate, the legal separation agreement may keep some entitlements of benefits intact. For example, those married to members of the military must remain married for ten years to benefit from the Uniformed Services Former Spouse Protection Act. Once married for ten years, it also means you can benefit from particular social security benefits. You may be able to draw a larger sum if you can draw the benefits of the social security retirements of your former partner. Nonetheless, there are time a legal separation is preferential to divorce. The separation may be temporary whereas a divorce is a permanent condition absent remarriage. It can also be used as a “last chance saloon” to save a troubled marriage. Legal separation also has the benefit of being less costly than a divorce and to go through the process before continuing with divorce can make the whole situation for a child or children easier to endure.

Do Divorcing Couples Have to Live Separately?

Depending on where you live, you may be unable to live apart—again, many states require spouses to separate before a court can grant a divorce.

State Requirements Regarding “Separate and Apart”

Your state may require you and your spouse to live “separate and apart” for a specified period of time prior to filing for divorce or a judge finalizing your divorce. Each state has its own set of rules.

States That Do Not Require Divorce

The majority of states (particularly those with no-fault divorce) do not require spouses to live apart prior to divorcing. California, Texas, and Florida are all non-separation states. If you live in one of these states, you are permitted to cohabitate with your spouse during the pendency of your divorce.

If you’re unsure whether your state requires separation prior to filing for divorce, you can conduct research on the state’s divorce laws, contact a local family law attorney, or contact a local legal aid department.

Do We Need a Separation Agreement in Writing?

When a couple divorces, it is possible, if not probable, that communication is disrupted to some degree. Even if you and your spouse are amicable when you separate, your relationship may deteriorate as the divorce process progresses. By documenting the terms of your separation, you can avoid future conflict or uncertainty. Additionally, if you decide to continue living together during your divorce, a separation agreement is critical to demonstrate your intention to separate on a specific date. Similarly, if you live in a state that requires you to separate for a period of time before the court will accept your divorce petition, a separation agreement is an excellent way to establish your separation date.

Your written separation agreement can serve as a road map for your relationship until the court accepts your divorce petition and issues temporary orders, if necessary. (Temporary orders may include provisions regarding child support, child custody, spousal support, and property division.) Having said that, if you and your spouse are unable to agree on how you will handle things during the separation or if you are unable to convince your spouse to sign a separation agreement, you may petition the court for temporary orders prior to initiating the divorce process.

The Separation Process’s Subsequent Steps

Divorce is a lengthy process. It could take up to a year from the time you file your case to the time the judge rules on it. On the other hand, depending on your state, you may be able to divorce within 30 days if you have an amicable divorce with few hiccups. In either case, you should have a contingency plan in place while you wait.

Take out a credit card on your own. Divorce can have a detrimental effect on your credit, so obtaining your own credit card now can help you establish credit and maintain independence from your spouse. Establishing a separate credit card or bank account (discussed below) will also assist you in establishing your separation date during the divorce process. (When it comes to property division, child support, and spousal support, the judge will need to know the date of separation.)

Maintain separate bank accounts. Following that, close your joint bank accounts and open new ones. If you and your spouse are unable to agree on how to divide the money in your accounts or if you have concerns about how to divide your paychecks, keep the joint accounts open but open an individual account as well.

Create a property list. Begin by compiling a list of your exclusive personal property and presenting it to your spouse. If you have a disagreement about something, you can attempt to resolve it without involving the court.

Recognize areas of agreement. If your spouse is willing, your period of separation may enable you to negotiate the terms of your divorce calmly. Discuss issues such as spousal support, child support, and child custody. If you believe you and your spouse are capable of negotiating the terms of your divorce collaboratively, you can look into DIY divorce services together or consider hiring a professional mediator to assist you in resolving any disagreements. Considerable forethought can go a long way in a divorce. Likewise, healthy communication is possible. Take the time to chart your course as you embark on the next phase of your life, including when it comes to establishing a healthy living situation that protects your rights. You’ll be glad you invested your energy early in the process as the divorce progresses.

Need a Legal Separation Lawyer in Scottsdale or Phoenix?

(480) 744-7711
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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 lawyers, divorce 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 custody, legal guardianship, paternity, prenuptial 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.

Divorce & Legal Separation, Divorce Attorney, Divorce attorneys Scottsdale
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Reasons And Rights For Legal Separation

Reasons For Legal Separation

A legal separation is a legal procedure (similar to a divorce) in which a married couple petitions (asks) a court to allow them to live separate and apart from one another and terminate any marital obligations. The only difference is that the couple is still technically married, which means they have not terminated their marriage and are unable to remarry unless they divorce.

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Legal separation is also known as a “limited divorce,” “judicial separation,” or “separation from bed and board,” depending on the state in which you live. In some states, spouses must first be legally separated before filing for divorce. The time it takes to get a legal separation is usually between 6 months and 2 years, but it varies depending on the laws in each state.

In jurisdictions where legal separation is not permitted, the spouses could simply live apart and sign a written separation agreement (signed by both spouses) to achieve the same result.

What are the Rights of Spouses During a Divorce?

A court can decide on child custody and support, alimony, and property division in a legal separation proceeding. However, as previously stated, the spouses will remain legally married and will not be able to remarry unless they obtain a divorce.

The following are some of the most common issues that arise between divorcing couples:

  • whether one spouse is entitled to alimony for a limited period of time
  • If there are minor children, how much child support should be paid?
  • rights to the family home, such as whether either spouse has the right to live in the marital home during the divorce and who will pay the mortgage, and
  • which debts each spouse is responsible for

Is a Legal Separation Necessary?

Because their religious beliefs forbid divorce, some couples opt for a legal separation. A legal separation is viewed by some couples as a “cooling-off period” in a troubled marriage. Whatever the reason, a separation has the benefit of providing a legal framework for both parties in the event that one fails to adhere to the terms of an agreement or support obligations. If one spouse fails to pay child support or alimony, for example, the separation judgment and order(s) will give the recipient spouse the right to have the orders enforced in court, which means a judge can make the delinquent spouse pay. There is no way to enforce the overdue payments if there is no legal separation or separation agreement followed by a court order. When a legal separation or separation orders are in place, the spouse who does not pay can be held in contempt, which can result in fines, penalties, and even jail time. While the spouses try to figure out whether they want to stay married or divorce, a legal separation may provide some stability to a rocky relationship.

Do you require the services of a lawyer?

If you’re being asked to sign a separation agreement, you should seek legal advice to understand the terms and how they affect your rights. Never sign a legal document without first consulting an attorney. If you are seeking legal separation, an experienced family law attorney can assist you in protecting your rights both before and after the separation.

Need a Legal Separation Lawyer in Scottsdale or Phoenix?

(480) 744-7711
INITIAL CONSULTATION

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 lawyers, divorce 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 custody, legal guardianship, paternity, prenuptial 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.

Divorce & Legal Separation, Divorce Attorney, Divorce attorneys Scottsdale
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What Is a Dissolution of Marriage?

Learn more about marriage dissolution and how it differs from traditional divorce.

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What is the definition of a divorce? Is it just another way of saying “divorce”? Yes, in most states, a dissolution simply refers to how a couple can end their marriage permanently. However, in a few states, the procedure is quite different. To learn more, keep reading.

Divorce vs. Dissolution

A dissolution of marriage is not the same as a divorce in a few states because it does not end the marriage permanently. In some states, couples can only use dissolution if they agree to the dissolution and how to resolve all of their divorce-related issues, such as child support, child custody, alimony, and property division.

An annulment, on the other hand, effectively voids (or erases) a couple’s marriage. A legal separation is not the same as dissolution. A legal separation allows a couple to ask the court to determine divorce-related issues like child support and spousal support without legally terminating their marriage for religious or other reasons. The couple is “effectively” divorced if a court approves a legal separation, but neither can remarry until they file for a dissolution.

We’ll concentrate on the more common usage of the term in this article.

What Is a Summary Dissolution and How Does It Work?

In some states, dissolution cases are referred to as “summary dissolution,” which is a type of quick divorce. A signed marital settlement agreement addressing child support, custody, property division, and alimony is presented to the court in a summary dissolution. You both agree to waive a trial or judicial intervention by presenting the signed divorce agreement to the judge. To qualify for this accelerated legal process, couples must meet the state’s requirements for summary dissolution.

  • Couples in California, for example, can use the state’s summary dissolution process if they meet the following criteria:
  • For divorce, both spouses must meet the state’s residency requirements.
  • Both spouses agree on the legal grounds for the request (irreconcilable differences).
  • There are no minor children in the household, and neither spouse is expecting a child.
  • The marriage has lasted less than five years.
  • Neither spouse owns any real estate (except a current residence)
  • The couple has no debts totaling more than $4,000 in their marriage (excluding an automobile note)
  • The couple owns less than $25,000 in community property, and neither spouse owns more than $25,000 in separate property.
  • the couple signs a contract dividing their assets and debts from their marriage
  • Neither party has made a request for spousal support.
  • Both spouses agree to give up their right to appeal, and
  • Both partners agree to end the marriage.
  • The cost of this type of divorce is significantly less than a contested divorce in states that recognize it.

Getting a Lawyer

A divorce can be difficult on many levels because it involves potentially complex and emotionally charged issues like child custody and support, property and debt division, and alimony, among others (also known as “spousal support” or “maintenance”).

As a result, spouses contemplating divorce may wish to seek legal counsel. Each of these legal issues, as well as how they might play out in your case, can be explained by an experienced family law attorney. Also, whether you end up settling all issues with your spouse (outside of court) or going through a full-fledged divorce trial, an attorney can prepare all necessary divorce paperwork and ensure that your rights are fully protected.

Speak With One Of Our Divorce Attorneys In Scottsdale

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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 custody, legal guardianship, paternity, prenuptial agreements, divorce mediation, collaborative 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.

Divorce & Legal Separation, Divorce Attorney, Divorce attorneys Scottsdale, Divorce Mediation
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Divorce Frequently Asked Questions & When Is The Right Time To File For Divorce

In Arizona, divorce refers to a legal “dissolution” of marriage. You will go through a procedure in court to formally end your marriage. If you are the one who goes to court for a divorce, you will be identified as the “petitioner.” The other spouse will be identified as the “respondent.” Divorce in Arizona is not the same as in other states. Here are some answers to common questions most people have about divorce in Arizona.

Can I File for Divorce Anytime?

Either you or your spouse must have resided in the state for a minimum of 90 days before filing for a divorce at a local Arizona court. That is a legal requirement.  If there are children, they must typically be in the state for 180 days to vest custody jurisdiction, depending on the facts of the case.

Do I Need a Divorce Attorney?

Technically, you can represent yourself in court. However, it is highly recommended to get your attorney from your local area, like a divorce attorney in Phoenix. If you choose to self-represent, the court will assume that you know all the laws and rules pertaining to your case. You will have to follow court procedures on your own. A judge may disallow you to take certain actions if you do not properly follow court procedure. No one at court will be able to give you legal aid because they are barred by law from doing so.

You can seek legal aid if you cannot afford an attorney for your divorce. You can also petition the court to have the spouse pay for your attorney’s fees if your spouse makes substantially more income than you do.  Every case is unique.  

Do I Need to Give a Reason for Divorce?

Not in Arizona. The state has a so-called “no fault” clause, which means neither party needs to give a reason for the divorce. Moreover, the romantic escapades of Husband or Wife will have no relevance in the underlying dissolution action.  The mere desire to get a divorce is enough. In the court, only one spouse needs to claim that the marriage is “irretrievably broken “to finalize a divorce. The only exception is if the spouses have previously chosen a “covenant marriage”. Then, the petitioning spouse must provide ground or reasons for the divorce under state law.

What are A.R.S. and A.R.F.L.P.?

You will see these acronyms in the papers your divorce lawyer in Scottsdale or elsewhere files. The letters stand for particular legal statutes, or laws, in Arizona. A.R.S. refers to Arizona Revised Statutes, and A.R.F.L.P. refers to Arizona Rules of Family Law Procedure. You can go to the Arizona court or state websites to get access to these legal documents and rules if needed.  Ideally, you simply hire counsel and let them do their job to advocate for your rights in the underlying divorce.

What Do I Do if My Spouse Doesn’t Want a Divorce?

Too bad.  It’s going to happen anyway.  In cases where a spouse is morally against the divorce from advancing, there is little they can do to stop the case.  At best, the objecting spouse can request the court order a mandatory reconciliation counseling session which typically only pauses the case for 30 to 60 days. If at the end of reconciliation session, the spouses have not come to an agreement to postpone the divorce, the proceedings will go forward. Conciliation meetings are free of charge and rarely derail a case.  

If you have children, then your proceedings will be subject to a wide range of family laws in Arizona. The legal aspects you should consider will depend on the type of custody you seek. For more information, you should contact an attorney in your area.  Your children are your most treasured asset and case strategy and approach to maximize your custody is critical and experienced legal counsel even more important in such instances.  

Divorce is frequently a lengthy and costly process. Court proceedings can take months to complete. Simultaneously, the spouses may not get along and may be going through a difficult emotional period.

Additionally, the spouses may be experiencing financial hardship as a result of the household income being split and the need to support two separate homes. Having a plan in place for when to leave a marriage can help a spouse minimize the financial impact of the divorce. The following are some of the financial factors to consider when planning an exit from a marriage:

Market for Real Estate

If the couple owns a home together, one of the most important factors to consider when deciding when to divorce is the state of the real estate market. To afford smaller, separate spaces, the spouses may have to sell the house and split the proceeds. In contrast, the spouses may agree that one of them should continue to live on the property while the other receives other marital assets to compensate for his or her equity share. This step is best taken when the value of the property is high for the spouse who will receive other property. The spouse who will remain in the home, on the other hand, may prefer to divorce when the real estate market is weak so that he or she will not have to give up as many valuables to the other spouse.

It’s All About the Kids

If the couple has minor children or children who will be financially impacted by the divorce, this is an important factor to consider. A divorce involving minor children is significantly more difficult than a divorce involving no minor children. Lawyers devote more time to preparing arguments about child custody. A parent may also be obligated to pay child support for many years to come. Some states allow child support obligations to continue after the child reaches the age of 18 and may even require financial support while the child attends college. However, getting a divorce while your children are older but still dependent has a financial advantage in that they may be eligible for student loans or grants that they would not have been eligible for in an intact family. Many of these programs only consider the income of the custodial parent when determining financial aid eligibility.

Job Situation

The spouses’ employment status is another important financial consideration. In an ideal world, spouses will divorce when they both earn enough money to support themselves. This, however, is not always the case. It’s possible that a spouse’s hours have recently been reduced. A spouse’s job may have been lost. A person’s job may have been lost due to a sudden illness. When a couple is going through financial difficulties, it’s common for them to have problems in their marriage as well. Waiting for both spouses to regain financial stability or realign their careers may be difficult, but it may be preferable, especially if one spouse is required to pay spousal support to an unemployed or underemployed spouse.

Due to the separation of the spouses and their finances, a divorce often necessitates a slew of changes. One or both spouses may need to purchase new homes, vehicles, or change jobs. The economy can have a direct impact on whether these changes are feasible. If a spouse has been out of work for a long time, it may be difficult for him or her to re-enter the workforce during a downturn.

Divorce can have a negative impact on a person’s credit score. After a divorce, if spouses have neglected their credit, it can have a negative impact on their lives. Good credit is frequently required to purchase a home, rent a property, open a credit card in one’s own name, and in some cases, to obtain employment. If the parties are in a happy place in their relationship even as they consider divorce, they may want to wait a year or two so that they can both work on improving their credit scores before adding the financial strains of divorce. Another option is to try to stay in the same house or drive the same car so that the spouse is not forced to rely on good credit right away.

Income and Assets in the Future

Another factor to consider when deciding on the best financial time to divorce is the possibility of future income or asset acquisition. When deciding how to divide assets between spouses, many states do not consider the future. If a bonus, raise, or inheritance is on the horizon, it may be in the best interests of the spouse who will receive these additional funds to have the divorce finalized before receiving these funds. The other spouse may wish to postpone the divorce until these additional funds are received and can be divided.

Divorce & Legal Separation, Divorce Attorney, Divorced Parents, Scottsdale Attorneys, Scottsdale Divorce
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Top Reasons for Divorce

Before you consider divorce, be sure to speak to the Scottsdale divorce attorneys at Canterbury Law Group to discuss your case and options. A divorce lawyer can act as both a legal counselor and sounding board during this life-changing decision. Although there are many variables and unique reasons for divorce, we have included the statistically top reasons people file divorce in the U.S.

  • 1. Lack of communication. A successful relationship requires constant communication. Distance in a marriage is created quickly if you don’t share your feelings.
  • 2. Finances. If money becomes a consistent topic of disagreement, the road to divorce is almost inevitable.
  • 3. Feeling constrained. Some feel that marriage is holding them back from achieving goals and taking opportunities. If your partner can’t support your dreams, then they may not support the marriage.
  • 4. Trust. Trust is one of the leading factors in having a successful relationship and marriage. Your marriage is unlikely to survive if you do not trust your significant other.
  • 5. Expectations from each other. When expectations aren’t met, it can put a huge strain on the relationship.
  • 6. Your spouse doesn’t understand / fulfill your needs and desires. Everyone has different needs and wants. A successful partnership requires going the extra mile to fulfill a spouse’s needs and wants.
  • 7. Religious and cultural differences. Religious beliefs and cultural values can cause conflict, which affects the way you live your life and raise your children. This situation is often a deal breaker.

Consider the three most common reasons for divorce to determine whether or not your marriage can be saved.

Adultery or having an extramarital affair

When one person seeks fulfillment of their physical or sexual needs outside of the relationship, this can spell the end of the relationship. It’s extremely difficult to regain trust after a partner feels betrayed.

Extramarital affairs cause between 20% and 40% of marriages to fail and end in divorce. This is one of the most frequently occurring reasons for divorce. The reasons people cheat are not as black and white as our rage would have us believe.

Along with differences in sexual appetite and a lack of emotional intimacy, anger and resentment are frequently cited as underlying reasons for cheating.

Oftentimes, infidelity begins as an apparently innocent friendship. It begins as an emotional affair and develops into a physical one.

Infidelity is a leading cause of divorce. Apart from living apart for more than a year and subjecting your partner to cruelty, this is also one of the legal grounds for divorce (mental or physical).

Financial difficulties

Money makes people amusing, as the proverb goes, and it is true.

If a couple is not on the same page about how their finances will be handled, it can result in disastrous consequences.

Why is financial incompatibility a leading cause of divorce? According to divorce statistics, a “final straw” reason for divorce is a lack of financial compatibility, which accounts for nearly 41% of divorces.

Everything from divergent spending habits and financial goals to one spouse earning significantly more money than the other can wreak havoc on a marriage. Additionally, differences in the amount of money each partner brings to the marriage can result in power struggles between the couple.

Money has a profound effect on everything. It has an effect on people’s lives. Clearly, money and stress appear to be inextricably linked for many couples.

Financial difficulties are one of the leading causes of divorce, second only to infidelity as the primary reason for divorce.

Inadequate communication

Communication is critical in marriage, and an inability to communicate effectively and quickly results in resentment and frustration on both sides, negatively affecting all aspects of the marriage.

On the other hand, effective communication is the bedrock of a healthy marriage. When two people share a life together, they must be able to communicate their needs and understand and attempt to meet their partner’s.

Yelling at your spouse, not conversing enough throughout the day, and making derogatory remarks to express yourself are all unhealthy modes of communication that should be abandoned in a marriage.

Additionally, when couples stop communicating with one another, they can feel isolated and lonely and eventually lose interest in one another. This can result in the relationship’s demise.

Poor communication is one of the leading causes of divorce in 65 percent of cases.

While practicing mindful communication to correct age-old marriage mistakes can be challenging, the effort required to improve and save your relationship is well worth it.

Whether you are considering filing for divorce or you’ve already been served with a divorce petition, it is critical to speak with an attorney immediately to assess your legal rights and take the necessary steps to protect them. Delay may result in limiting your options. Every situation is unique and our attorneys are well equipped to provide you with the tools to make the best decision that suits your particular situation. Hit the ground running on your marital dissolution and consult with the legal professionals at www.canterburylawgroup.com or call 480-744-7711.

Divorce & Legal Separation, Divorce Attorney, Divorce attorneys Scottsdale, Scottsdale Divorce
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