Divorce & Annulment Article


Family Law on the Navajo Nation: How is Property Divided in a Divorce?

Divorce on the Navajo Nation:  How is Property and Debt Divided in a Divorce

 

What is community property?

Community Property is property that was acquired by either spouse during the marriage.  It doesn’t matter whose name the property is in; if it was acquired after the marriage began, it’s community property.  But it does not include property a spouse acquired through inheritance or gift, so long as the inheritance or gift has been kept separate (as in a separate bank account).  Examples of community property are bank accounts, retirement benefits, ceremonial items, grazing permits, livestock houses, vehicles, etc.

 

What is separate property?

Separate property is property that a spouse owned or claimed before the marriage began.  It can also be property that a spouse acquires through inheritance or gift during the marriage which is kept separate.  In addition, all property accumulated or earned by the wife and the minor children in her custody while she lives separately from her husband is considered her separate property.

 

What about debt?

Debts that were incurred during the marriage are considered “community debts.”  These could be such things as credit card debts, loans, bills, etc.  It is important to remember that these debts are part of the property division in a divorce.  It doesn’t matter whose name the debts are in; if they were incurred after the marriage began, they are a community debt.

 

How does the court divide up the debts and property in the divorce?

The court first looks to see whether the property/debts are community property/debts or separate property/debts.  Then, a court will decide how to divide up the community property and debts.  The Navajo Nation Code requires a court to provide a “fair and just settlement of property rights between the parties.”  This “fair and just” standard may, but does not necessarily mean, that property is divided equally.  The court must look at all of the facts in a case and consider a number of factors:

 

-          Reasonable current market value of each major piece of community property/debt

-          Length of the marriage

-          Economic circumstances of each spouse (age, health, work/social position, amount/sources of income, vocational skills or need for re-training, employability, opportunities to acquire assets and income in the future)

-          Each spouse’s separate property and its value

-          Needs of the parties

-          Liabilities (debts) of the parties

-          Contribution of a spouse as a homemaker or the contribution of each spouse to the family

-          Who will have custody of the children, and the needs of the children

-          Efforts of each spouse in contributing to the family unit and in obtaining or wasting community property

-          Considerations of traditional and customary Navajo law

-          All other relevant facts.

 

What proof do we need to have to divide up property/debts in a divorce?

The key is that the court must know the value of the property and debts in order to make a fair and just settlement.  It is best if you have receipts and proof of the value of the property, and copies of statements about the debts.  You need to be able to present the information to the court in an organized way.  When you meet with an attorney or Tribal Court Advocate to discuss how to get a divorce, bring with you important documents relating to property and debts.  Getting a copy of your credit report is smart, because it will list all of the debts with current amounts owed.

 

What if we can agree on how to divide up the property/debts?

If you and your spouse agree on how to divide the property and debts in a fair way, you can submit a “stipulation” to the court—a written agreement signed by both of you.


Comments:

QUESTIONS

  • MY X HAS NOT FOLLOWED OUR DECREE. WOULD LIKE TO TAKE HIM BACK TO COURT FOR CHANGES.
  • My husband and I were married in 2000. We separated in 2001 and have no lived together or been in a relationship ever since. He was deported to Mexico. How can I file? He agreed to sign and get papers notarized in Mexico immediately. Would they be valid in Arizona?
  • i don't have the money for an attorney to complete my divorce. I have been living seperately from my husband for 4 years. I don't qualify for living at or near poverty level but only have about $40.00 a month in disposable income. Is there anywhere that i can get help?
  • How can I make a legal separation a divorce, when I did not offer any response to the petitioners request? We worked the separation out together, so I didn't want to fight her!
  • If one person wants a divorce and the other does not, can that person contest the divorce?
  • How does property get divided in AZ? In WI. automatically the spouse get half no matter whose name is on the house, car,boat,etc.?
  • My husband and I have been separated for three years. We have an adult daughter aged 23 and another who is nearly 20- she is getting married in a month. We wish to file co-petitioner divorce but do we file the packet for with children or not? She is not emancipated, but does live on her own and will be married as I said in a month.
  • I have filedfor divorce with children done everything in order and made it to the hearing for temp. orders. We both are scheduled for the the pip class which i just took on Wed. The judge said my husband could take his in Las Vegas cause he lives there. The judge said that he is not setting this case for anything until completion cert. are received by the court for both of us. How long does he have to prove completion so we can keep going forward
  • I am the wife of a retired service member that I receive 50% of the community property pension. Do I have to pay taxes on the payment?
  • I have run out of funds trying to Divorce my husband. He has a much higher income than I do. Also he is currently working in China. I have had custody of our 2 kids for 2 years. I filed last year, but he fought it and won. I want something legal to protect me financially .

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