When Can a Court Divide Property Unequally in an Arizona Divorce?

Arizona is a community property state, which means that a divorcing couple’s property is generally divided equally between the two of them. In exceptional circumstances, however, a court may divide property unequally where the interests of justice seem to so require.

Arizona law presumes that all property acquired by a couple during their marriage is owned equally. This is true even when assets are held only in one spouse’s name. But if dividing certain assets equally would be unfair, a court may apply the Toth standard, named after a landmark state Supreme Court decision. In the Toth case, the couple was married for only two weeks when the husband purchased a property entirely with his own funds. The court held that he was entitled to the property and did not have to split it with his wife. Since the Toth case, Arizona divorce courts have similarly held that a spouse may be entitled to keep an entire piece of property where that spouse used only their own funds to purchase it.

Another circumstance in which Arizona courts may make an unequal division of assets is when one spouse can show that the other spouse “wasted” marital property. This means spending funds on things, events or people that did not benefit both spouses. For example, a spouse with a gambling addiction may have spent tens of thousands of dollars on betting during the course of the marriage. If that occurs, the spouse harmed by such waste should be entitled to reimbursement of those funds. While courts generally will not award the full amount wasted — since half of it is considered the gambling spouse’s assets — the non-gambling spouse may be compensated for up to 50 percent of the amount wasted.

Note that the Toth standard is normally applied to a specific property or category of asset, not to all community property. However, it may have an effect on the entire asset division process. If you are considering a divorce, an experienced Arizona divorce attorney can help you evaluate whether you may be able to successfully assert a claim that equal division of certain assets would be fundamentally unfair.

At Clark & Schloss Family Law, P.C. in Scottsdale, Arizona, we often work with spouses who are concerned about the division of their assets during divorce. If you have questions about how divorce might impact you, please call our office at 602-789-3497 or contact us online for a consultation.