questions & answers

Question: I am a widow who remarried 5years ago in June of 2010 my spouse has not worked steadily for the past four years and not at all for the last three years. He moved into my home when we met and things started getting bad right after we got married I told him I wanted a divorce and he told me to go ahead and file, that he can stay living here in my house for 2 years after I file legally.  I do have a prenuptial agreement. Is this true?

Answer: After a couple files for divorce, the court will determine whether different items that the couple possesses qualify as separate or joint property. Unless there is an agreement to the contrary, the court will assign sole property to the individual that has ownership. The rest of the joint property will then be divided equitably between the couple.

The state defines separate property in Arizona Revised Statute Title 25, Section 213:

25-213. Separate property A. A spouse's real and personal property that is owned by that spouse before marriage and that is acquired by that spouse during the marriage by gift, devise or descent, and the increase, rents, issues and profits of that property, is the separate property of that spouse. B. Property that is acquired by a spouse after service of a petition for dissolution of marriage, legal separation or annulment is also the separate property of that spouse if the petition results in a decree of dissolution of marriage, legal separation or annulment. C. Notwithstanding subsection B of this section and section 25-214, subsection C, a mortgage or deed of trust executed by a spouse who acquires the real property encumbered by that mortgage or deed of trust after service of a petition for dissolution of marriage, legal separation or annulment shall be enforceable against the real property if the petition does not result in a decree of dissolution of marriage, legal separation or annulment. D. A contribution to an irrevocable trust that has or will have as its principal asset life insurance on the person making the contribution is a contribution of the insured's separate property if the spouse of the insured is the primary beneficiary of the trust.

For more information on how a court divides property, see A.R.S 25-318: http://www.azleg.state.az.us/FormatDocument.asp?inDoc=/ars/25/00318.htm&Title=25&DocType=ARS

For the full text of Title 25: Marital and Domestic Relations, visit: http://www.azleg.state.az.us/arizonarevisedstatutes.asp?Title=25