Are You Divorcing in Arizona?

If you file for a divorce in Maricopa County, you will need the advice and services of a Maricopa County divorce attorney, and you will also have to make some hard choices. For example, how should the marital properties, assets, and debts be divided in the divorce?

Arizona is a community property state, which means the divorcing spouses jointly own most of the assets and debts acquired during a marriage. Unless divorcing spouses can reach a private agreement, the court usually divides the community property equitably between them.

An Arizona divorce lawyer can work with you and your spouse to help you reach an out-of-court agreement. If the two of you cannot reach an agreement about the division of community property, and if there is no prenuptial or postnuptial agreement determining how the community property will be divided, the decision will be made by a judge.

Do You or Your Spouse Owe on a Student Loan?

In an Arizona divorce, if a spouse has student loan debt, how is that debt handled? Usually, the student loan was made before the marriage, so the spouse who took out the loan will be assigned the debt in a divorce proceeding – unless the spouses voluntarily make another arrangement.

But what happens if one spouse takes out a student loan during the marriage, and the spouses cannot agree on how it will be paid? In this situation, Arizona law gives a judge discretion about dividing the debt, and judges have been inconsistent about how they divide student loan debts.

What Do Judges Consider When They Assign a Student Loan Debt in a Divorce?

What follows are the general principles that guide Arizona judges when they make decisions about student loan debts in a divorce proceeding:

  1. The courts presume debts acquired during a marriage are community property that the court should divide “equitably.”
  2. This presumption usually means a fifty-fifty debt division unless fairness requires a different division.
  3. If the loan served to benefit both spouses, a judge will probably divide the debt equally.
  4. A loan that paid only for tuition, college fees, and textbooks is more likely to be viewed as the separate obligation of the spouse who received the education. If the couple used the student loan for living expenses, the debt will probably be considered a community debt.
  5. Student loan debt cannot be discharged through bankruptcy.

In some cases, Arizona judges assign student loan debt exclusively to the party who received the education. In other cases, judges split it, sometimes equally, but sometimes, the spouse who took out the loan bears more of the burden.

Why Are Arizona Judges Inconsistent About Student Loans?

In some cases, the court splits student loan debt because both spouses benefited from the student spouse’s higher income post-graduation. In other cases, an Arizona court assigns the debt to the spouse who will benefit post-divorce. In each case, the court is trying to do what is fair.

Despite the different outcomes, what the cases have in common is the court dividing the debt equitably. Arizona judges may differ about what they think is equitable when dividing student loan debts, but each judge tries to split the debts as fairly as possible.

Nevertheless, the inconsistency among judges regarding student loans means there is a risk for both divorcing spouses. Their best option is to reach a private agreement about who will take responsibility for the loan. A judge usually “signs off” on a private, voluntary agreement.

How Can You Protect Your Interests in an Arizona Divorce?

Before you marry, consider preparing and signing a prenuptial agreement with your prospective spouse to protect your interests. A prenuptial agreement is a binding, enforceable legal document that establishes which debts and assets are assigned to whom in case of a divorce.

If you are married now, you and your spouse may consider preparing and signing a postnuptial agreement. Arizona does not have a specific law addressing postnuptial agreements, but Arizona courts nevertheless have established a record of enforcing these agreements.

Have a Maricopa County divorce attorney prepare your prenuptial or postnuptial agreement to ensure that it is legally binding and enforceable. When the court has a prenuptial or postnuptial agreement as a guide, your divorce will be faster, smoother, and less expensive.

What Else Should You Know About Divorce in Arizona?

Before you divorce in this state, it is vital to consider the division of debts and assets. If you are parents of the same child or children, you must also consider child custody and child support arrangements. From the start, you’ll need guidance and insights from an Arizona divorce lawyer.

To file for a divorce in Arizona, you must satisfy the residency requirements. At least one spouse must have resided in Arizona for a continuous ninety-day period before either spouse may file a divorce petition. There are, however, several exceptions to the ninety-day residency requirement.

For instance, if either spouse is in the armed forces and is stationed in Arizona, you may file for a divorce without meeting the ninety-day residency requirement, provided both spouses have agreed to waive that requirement.

Ask the Dodds Law Firm to Represent You in a Divorce

The Dodds Law Firm serves family law clients throughout Maricopa County from our offices in Surprise, Arizona. Our mission is to offer you personalized solutions that meet your legal needs. In a divorce, we will fight to make sure you receive everything that is rightfully yours.

The Dodds Law Firm handles divorces, child custody and child support disputes, paternity cases, and most other matters of family law. With more than thirty years of family law experience, we know how to resolve the most challenging family law disputes. We also handle bankruptcies and offer our clients comprehensive estate planning advice.

To learn more about your rights in an Arizona divorce proceeding, schedule a thirty-minute consultation with an attorney at the Dodds Law Firm by calling us at 623-267-0026. We offer sound legal advice, three decades of family law experience, and affordable rates.