Community Property Laws & Same-Sex Marriage
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 the marriage.
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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