Equally vs. Equitably

As recognized by our supreme court, the general principle is that "all marital joint property should be divided substantially equally unless sound reason exists to divide the property otherwise...That approach simply reflects the principle that community property implies equal ownership." Toth v. Toth, 190 Ariz. 218 (1997); see also   Hatch v. Hatch, 113 Ariz. 130. Thus, in most cases, dividing jointly held property equally will be the most equitable.  But there are exceptions

In Toth, the parties married later in life (she was 66; he was 87).  The day after the wedding, he bought a house with his separate funds; he and his new bride took title as joint tenants.  However, the statute requires that both joint tenancy property as well community property be divided "equitably."  Two weeks later, husband moved out; two weeks after that, he filed for an annulment.

The judge decided that under the circumstances, the equitable thing was to award the wife substantially less than a half interest in the property--basically because the marriage was so short that she had made essentially no contribution to community assets.  The wife objected because this is not one of the factors the statute lists, and amounted to basing the property division upon marital misconduct, which is forbidden.  But the Supreme Court agreed with the judge, and determined that the list of factors in the statute was not exhaustive; instead, the judge has the discretion to make an unequal but equitable property division whenever he or she thinks there are "sound reasons" to do so.  As for marital misconduct, the Supreme Court said it didn't matter why the marriage was of such short duration; it only matters that it was.
  
In Flower, the facts were similar:  the parties married later in life (she was 55; he was 76).  They each owned  real estate when they got married.  Shortly after the wedding, the husband signed a deed to the his residence which transferred title to both parties as community property with right of survivorship. Ownership of the Wife's house was not changed; it remained her separate property.

Husband and wife lived in the Husband's house for approximately the first six months of the marriage. During that time, they made improvements to the wife's house and then moved into it.  Although the exact amount of debt the community incurred to improve the wife's residence is disputed, wife conceded that at least $32,000 was spent for this purpose. A significant portion of the funds used to pay for the improvements came from a home equity loan on the husband's house.  After the improvements to wife's residence were completed, the couple moved to that residence.  But within a short period of time, they decided to call it quits.

The husband claimed that he deeded over his residence as a result of "misunderstanding, fraud, or coercion", asserting that the wife never loved him and only married him for his money.  Accordingly, he sought an annulment(which was denied).   
 
The judge essentially agreed with the wife that the husband had made a gift to the marital community.  But the judge said that the property still had to be divided "equitably" rather than equally.  
 
The Court of Appeals agreed.  The Court emphasized that the judge has broad discretion in determining whether there are "sound reasons" to depart from an equal property division.  The one thing the Court did emphasize, though, was that an unequal division may not be made "solely" to reimburse the spouse who had given separate property to the community.

Since the judge has so much discretion, it is crucial to have a hard fighting, straight talking Phoenix Divorce Lawyer on your side to help make your case.