Arizona is a community property state. That basically means that both parties have control of property earned or purchased during the marriage. (There are a number of exceptions to this but we’ll save that for other articles). The law regarding this is A.R.S. §25-318, which states in part that the court shall “divide the community, joint tenancy and other property held in common equitably, though not necessarily in kind, without regard to marital misconduct.”
So what is the difference between an equitable division and an equal division? An equal division would be an even split of all property no matter what. An equitable division means that the court will look at what is just and fair in the circumstances. I represented a party in a Court of Appeals case on this subject. The Husband was given a large settlement for injuries he sustained prior to marrying. He took the settlement money and used it to purchase property, which he then placed in his and his Wife’s name. Husband testified that he never intended to gift a portion of the property to Wife and instead placed the property in her name rather than obtain a will because he believed it to be simpler. In the divorce Wife claimed that because Husband placed the property in her name she should receive half of the value of the property, which is what normally would happen according to our laws. However, both the trial court and the Court of Appeals held that the property was my client’s sole and separate property on grounds of equity.
A typical example of an equitable division that is not equal would be a short-term marriage in which one party placed items of considerable value in the other parties’ name. The courts generally do not want a spouse to get a windfall of property when the marriage is so short and the receiving spouse did little to deserve the property. However, please note that arguing for an unequal but equitable division is almost always a risky proposition and you have to have your case clearly laid out to get a judge to side your way.