By: Brian G. Winter, Esq.
Same sex married couples in Arizona now get to benefit from the State’s
community property laws. This was not always the case. However, with the
United States Supreme Court legalizing marriage for same sex couples in
the 2015 case of
Obergefell v. Hodges, same sex married couples now receive the same protection as heterosexual
couples under Arizona’s domestic relations laws.
Since Arizona is a community property state, all property, with the exception
of gifts, inheritances or other certain exclusions, acquired during the
marriage are presumed to be part of the marital community. Simply stated,
the property belongs equally to both spouses. By extension, both spouses
are also presumed to be equally responsible for the debts incurred during
This is a profound change for same sex married couples. Prior to the legalization
of same sex marriage, a same sex spouse or partner, had no legal rights
to share in their spouses or partner’s property which was acquired
during the marriage. Instead, ownership was determined solely by how property
was titled. Because there was not a valid recognized marriage, a party
could not get a divorce. As a result, a same sex spouse could not request
that a family court judge equitably divide property acquired during the
marriage in accordance with Arizona’s community property laws. No
consideration was given to where the funds came from to purchase and/or
maintain the property. This often resulted in an inequitable or unfair
result where one same sex spouse retained the property acquired during
the marriage when the relationship ended and the other spouse was without
any legal recourse.
Arizona’s community property laws apply to real estate, personal
property, financial accounts, liabilities and spousal maintenance. Same
sex married couples now have equal protection under Arizona’s domestic
relations laws to share in the marital community. It was a long time in
coming, but now the same rules apply to heterosexual and same sex married
couples wanting to get a divorce.
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