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By: rainmaker rainmaker

Equitable but Unequal Division of Real Estate in Divorce

Arizona Divorce Law

I. Introduction

Under Arizona Revised Statutes § 25-318 (A), Arizona divorce judges are directed to “divide the community, joint tenancy and other property held in common equitably . . . .” Over the years, Arizona courts have interpreted this statute to require that “all marital joint property should be divided substantially equally unless sound reason exists to divide the property otherwise.” Toth v. Toth, 946 P.2d 900, 903, 190 Ariz. 218 (1997) (citing Hatch v. Hatch, 113 Ariz. 130, 133, 547 P.2d 1044, 1047 (1976)). This article will address the limited circumstances under which an Arizona court may stray from the general rule that jointly held real estate be divided substantially equally.

When a husband and wife acquire jointly titled real estate during their marriage using during-marriage earnings or financing to purchase the real estate, there is virtually no basis for either spouse to argue for an unequal division of such real estate. In this situation, the real estate will, without any foreseeable exception, be divided substantially equally between the husband and the wife.

There are two fairly common scenarios, however, in which one spouse may be able to make a tenable claim that real estate should be divided unequally because an equal division would not be equitable. The first situation is where one spouse brings a piece of real estate into the marriage and subsequently adds his or her spouse’s name to the deed. The second situation is where, during the marriage, one spouse uses sole and separate funds to acquire real estate but where title to the real estate is nevertheless taken in both spouses’ names.

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