Statistics from the National Center for Health Statistics show that the divorce rate in Arizona was 2.3 per 1,000 people in 2022, and during these divorce proceedings, property division often features prominently, as this can impact the parties’ financial stability, place of residence, and future budgeting. If the former spouses believe that their divorce trial resulted in an unjust outcome, one option available involves seeking an appeal, which, if successful, could have a significant impact on the division of assets between the former spouses. To understand the effect that divorce appeals might have on property and asset division, consider reaching out to an experienced Arizona family law attorney from Sullivan Shick; call our Mesa location (480) 605-4880 or our Glendale location (623) 915-0944 to arrange a confidential consultation today.
Understanding Divorce and Asset Division in Arizona
Divorce, referred to as a dissolution of marriage in Arizona, is the legal process of ending a marriage, resulting in a court issuing a divorce decree. In Arizona, individuals can end their marriage by demonstrating that the relationship is irreparable; there is no need to file for divorce based on a specific reason (not including covenant marriages) and provide evidence of fault. That said, Arizona does have residency requirements for divorce, stipulating that one spouse must have lived in Arizona for a minimum period of 90 days prior to filing.
During this process, the spouses ideally agree on the divorce terms beforehand, such as those related to alimony, child support, parenting time, custody, and property division, although the court can also make these decisions if the parties cannot reach an agreement. With regard to property division, Arizona is a community property state, meaning any property acquired by a spouse while married is jointly owned by both spouses and typically divided equally (although not always), with the exception of separation property, which includes property owned prior to marriage, gifts, and inheritance. Below are some factors an Arizona divorce court may consider when having to make decisions concerning property division:
- Real estate: If a spouse inherits real estate individually while married, or owns real estate before marriage, the court is likely to consider this asset, as well as any appreciation or income generated, as separate property.
- Inherited wealth: A spouse’s inheritance is typically separate property, particularly if left to them in a trust, but if they decide to deposit these funds into a jointly owned bank account, a court could consider this to be community property.
- Retirement accounts: Acquired funds sitting in 401(k)s, pensions, or retirement accounts before marriage are usually separate property, whereas money deposited in these accounts post-marriage is typically considered community property.
- Jointly owned property gained before marriage: Jointly owned assets acquired prior to marriage may not constitute community property, even if the couple cohabited before getting married.
- Legal settlements: In addition to legal settlements, a court may divide any damages awarded in personal injury lawsuits into community and separate property. For instance, a court may consider damages granted for lost wages to be community property, whereas damages given for a plaintiff’s pain and suffering might be separate property.
How To Overcome the Presumption of Community Property in Arizona?
One effective way of overcoming the presumption of community property in Arizona involves the use of prenuptial or postnuptial agreements. Valid marital agreements override this presumption by stating how to divide the couple’s debts and assets upon divorce. Commonly used when one or both spouses have valuable assets they want to protect when entering into a marriage, these agreements can also safeguard inheritances left to children from previous marriages, preventing new spouses from depleting these assets during divorce.
Arizona recognizes marital agreements provided they are in writing, voluntarily signed by each party, and created on the basis of a fair disclosure of the spouses’ finances. This means that in the event of fraud by one or both parties, the court is unlikely to enforce the terms of the agreement. Learn more about how divorce appeals might impact property and asset division, and obtain the answers to your divorce queries by speaking with a knowledgeable Arizona divorce attorney; consider booking a consultation with Sullivan Shick today.
What Are Divorce Appeals?
The Court of Appeals in Arizona handles these types of court proceedings, which involves thoroughly investigating divorce hearings to determine whether the trial court accurately made rulings in accordance with the law. Essentially, they enable dissatisfied parties to obtain an alternative opinion, and if the appeal succeeds, a potentially different outcome. Here are some examples of valid reasons for appealing a divorce:
- The emergence of new evidence that due diligence could not uncover during the original trial.
- The violation of court orders, like those pertaining to property division, by one or both spouses.
- If one or both spouses acted dishonestly during the original trial, such as if the parties provided misleading or false information during proceedings or attempted to conceal their finances.
- The discovery of procedural errors that had a significant impact on the outcome of the original trial.
- The misapplication of the law by the trial court.
How Do Divorce Appeals in Arizona Work?
First, the party looking to appeal (the appellant) must submit a Notice of Appeal to the trial court. Per the Arizona Court of Appeals, those looking to file a divorce appeal must do so no later than 30 days from the issue date of the divorce decree. Next, both the appellant and the opposing spouse (appellee) create and file written briefs with the Court of Appeals, specifying the issues to address and legal arguments; the court then determines whether they will arrange an appeal hearing.
Assuming the appeals court decides to proceed, they then consider the written briefs, Record on Appeal (court transcripts, trial evidence, and other documents submitted to the trial court), and, occasionally, short oral arguments from both parties before making a decision. Generally, a divorce appeal is challenging to win since the appeal court typically assumes the trial court made a correct decision, requiring compelling evidence to overturn this belief. For instance, it is not unheard of for the appeals court to recognize that the trial court made errors in making its ruling but to dismiss an appeal on the basis of the errors not having a sufficient impact to modify or overrule the trial court’s decision.
How Does a Divorce Appeal Impact Asset Division?
If a divorce appeal succeeds, this can lead to several outcomes, all of which can impact property division. For instance, a successful appeal may result in the invalidation of certain elements of the divorce decree or the trial court modifying the initial decree. In other scenarios, the appeals court may throw out the whole divorce decree, requiring the need for a new trial and presenting an opportunity for the couple to try to reach new settlement terms regarding property division.
Reach Out to a Seasoned Arizona Family Law Attorney To Learn More About Divorce Appeals
Divorces are complex, emotionally taxing legal processes, whether this is at the trial or appeal stage. Importantly though, a divorce appeal is a very different procedure to a divorce trial, focusing more on reviewing legal errors and presenting compelling arguments for appeal, requiring a different approach and skill set from the parties’ trial attorneys. Individuals with queries regarding divorce appeals or asset division may want to discuss these with a seasoned Arizona divorce lawyer who can handle appeals; call Sullivan Shick today at our Mesa location (480) 605-4880 or our Glendale location (623) 915-0944 to get a case review, understand how Arizona divorce law applies to your circumstances, and obtain advice concerning your legal options and rights.