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What is considered non-marital property?

As this blog has mentioned before, Arizona is a community property state. In the context of a divorce, this means that, generally speaking, marital property is split 50-50 between the spouses. Incidentally, even couples with no intention of splitting need to be aware of our community property laws.

The general rule is that if a couple owns property together, or if it was acquired during their marriage or because of income either one of them earned during their marriage, then the property is community property. In practice, at least for long-term marriages, most assets are going to be treated as community property, subject to a 50-50 split.

However, community property states like Arizona also recognize what is called non-marital or separate property. These assets or ordinarily not subject to property division. In other words, what either spouse brought into the marriage will remain the sole property of that spouse in the event of a divorce.

Moreover, inheritances and gifts one spouse receives, so long as the intent was to benefit only that spouse, will also be considered separate property, even if the inheritance or gift took place during the marriage. In other words, a Phoenix resident who is facing the end of their marriage need not worry that the bequest or gift from her parents is going to wind up in the hands of her former spouse, as she has a good argument that such assets should remain hers outright.

Sometimes, though, it is not so easy to sort out what is marital property and what is non-marital property, or what might be partly separate and partly community, such as a house or a car purchased by one party prior to the marriage but paid for during the marriage as couples often do not pay much attention to such nuances when they are happily married. Rather, they tend to take a "your's is mine and mine is your's" approach, mingling their property together.

This is not necessarily a bad thing. But, it can complicate property division somewhat, which is why many people choose to seek out legal assistance.

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