When it comes to property distribution and custody issues, Arizona judges have discretion in how to craft divorce decrees to best fit each case, and there is no one-size-fits-all answer. However, there are some steps divorcing spouses can take to help them make their divorce easier and even improve their chances of getting the custody or property award they want. When spouses educate themselves on the divorce process, they can avoid making mistakes that can cost them later.
Arizona is a community property state, which means property the spouses acquire during their marriage, known as community property, is considered the property of both spouses regardless of whose name is on the title. Arizona courts typically divide community property 50/50 between spouses. Some property, including property acquired by gift or inheritance, is considered the separate property of the spouse who acquired it, even if received during the marriage, and separate property is not generally subject to division in a divorce.
When spouses mix their separate property with community property, it may lose its special character as separate property, and an Arizona divorce court can treat it like community property. This is often called commingling or transmuting. For example, if a spouse uses money from an inheritance to pay a mortgage on the marital residence, the court is likely to consider those funds to have been transmuted; thus, no longer the spouse's separate property. Spouses can avoid having their separate property treated as community property if they are able to trace the property back to its original source of separate property. For example, if a spouse purchased an item with money he had before he married, that item can also be his separate property as long as he can prove the purchase money came from his separate funds. Spouses can use financial records, such as bank statements, canceled checks and receipts, to help prove an item is separate property.
Arizona, like most states, has adopted the Uniform Child Custody Jurisdiction and Enforcement Act, which governs when a court can exercise authority over cases involving child custody. Under most circumstances, Arizona courts cannot issue orders involving child custody until the child has lived in Arizona for at least six months and there is no custody lawsuit pending in another state. Spouses may wish to wait to file for divorce and custody until they are sure the court has authority over the child. Arizona law has rules for courts to follow when determining custody, including standards that favor the parent who promotes contact with the other parent when custody is disputed. If divorcing parents are living separately, it might be detrimental to one parent’s efforts to gain sole custody if he denies or interferes with the other parent’s visitation with their child.
Arizona authorizes judges to create temporary orders governing the spouses’ conduct while the divorce is pending. If issues such as custody, child support or spousal support cannot wait until the divorce is final to be resolved, spouses can request the court issue a temporary order addressing these issues, or spouses can consult with an attorney for help obtaining such an order.