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September 2013 Generations Representing Generations

Although often a touchy subject to bring up with your significant other or spouse, it is important to discuss your marital property rights prior to the possibility of a divorce or death. Here are some things to consider:

  • Arizona is a “community property state.” This means that all property acquired during the marriage is presumed to be owned by both spouses unless it was a gift to you or left to you in a Will. Typically, each person is entitled to half the value of property and each is responsible for half the debt that was incurred during the marriage.
  • Despite Arizona community property laws, spouses are free to enter into agreements that clearly define what is meant to be separate and what is meant to be shared, regardless of when or who acquired it.
  • An agreement can be made prior to marriage “prenuptial” or at any time during the marriage “postnuptial.”

Here’s an example. Jane and John get married. Before the marriage, Jane sold her house and put the proceeds ($50,000) into her separate bank account. After they get married, Jane and John buy a new house together. They purchase the new house in both of their names. Jane puts her $50,000.00 toward the down payment on the new house.

Jane and John get divorced a year later. John wants to keep the new house, and Jane wants her $50,000.00 back. Without a valid prenuptial or postnuptial agreement, it is likely that Jane will only recoup 1/2 of her $50,000.00. The Court will presume that Jane made a gift to the “community.”

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