Protect Your Inheritance in a Divorce
Under Arizona Revised Statutes § 25-211(A)(1) there is a strong presumption that all property acquired during a marriage by either party is community property. What that means is that there is a presumption that the property acquired during the marriage is the property of both parties and is therefore subject to division between the parties in the case of divorce. Therefore, if the presumption that the property is community property is not overcome, a party to a divorce could see his or her inheritance divided with his or her former spouse.
To overcome the presumption that the property is community property, a party must provide clear and convincing evidence that the property was acquired by that spouse by gift, or by devise or descent. Clear and convincing evidence is evidence that makes the position advocated for by the party highly probably to be true and gives the judge a firm belief that it is true. Fittingly, with such a vague standard, the natural question is what kind of evidence meets the burden of proof to protect a party’s separate property. The question is a difficult one because it is up to the judge to determine whether the standard has been met.
In a case decided this year in Arizona, In re Marriage of Foster, the court was faced with the question of whether the husband had met his burden of proof that guns he owned were acquired through inheritance and therefore his separate property. The husband had given his daughter 38 firearms to hold for him and give to various family members upon his death. The husband claimed that he inherited 14 of the guns from his brother. To support the husband’s claim, the daughter presented a list of all the firearms organized by where they had come from. There were 14 firearms on the list that indicated that they came from the husband’s brother and another 4 that indicated that they came from the brother’s estate. The court found that the 4 from the brother’s estate were the husband’s separate property, but not the other 14. Therefore, the wife ended up receiving some of the guns in the divorce that husband received from his brother.
You may wonder what more could be done to protect your separate property. The husband had a list of the firearms that indicated where they came from, and several came from his brother. At the least, it would appear that the guns from his brother were gifts and would still therefore be separate property. That is not the case because of the strength of the community property presumption. A party attempting to prove that property is separate must provide overwhelming evidence of that fact. In a case like Foster, the party receiving the property would want to have a contemporaneous writing indicating that the property is a gift specifically to one spouse. Additionally, it would be a good idea to have the writing notarized so the authenticity and date of the writing would be provable. A piece of paper with a name and date written on it is a lot less convincing than one that an uninterested third party has authenticated.
At Phelps & Moore, our attorneys can assist you in protecting your rights to your inheritance and family heirlooms both before and after a divorce is commenced. Call us today at 602-788-2089 to schedule a free 30 minute consultation.