When “Legal” Matters?

| Family Law Legally Speaking | January 29, 2020

For a lawyer, it always does!

However, “normal” people (nonlawyers) often have differing views. The two most often confused areas are whether Arizona recognizes common law marriage (it does not) and whether a period of physical separation counts as a legal separation (it does not).

It is increasingly common for parties to live together for a period of time before getting married. Many times they will purchase homes or vehicles together and will open joint bank accounts or incur debt together. Under Arizona law, the marriage is not recognized as starting until the parties are actually married – with the marriage certificate signed. Therefore, if one person purchased a home prior to marriage and the other contributed to making the mortgage payments, there is not a community property claim for reducing the balance on mortgage principal. There may be another claim, but that’s a topic for another article.

Cohabitation

In the future, there may be changes to the laws concerning cohabitation, but they have not occurred as of yet. Fair or not, there is no common law marriage in Arizona. It’s like the old saying “buyer beware.” That old adage also applies to cohabitating couples. Before you join bank accounts, loans and assets, it is always a good idea to consult with an attorney to delineate your rights in the event of a later separation. Otherwise, you may hear in the future that what you thought you were entitled to, you’re really not. That can be a tough one for clients to hear.

Legal Separation

The other area of confusion arises when married parties separate. When I initially meet with a potential client to discuss their dissolution of marriage, I ask if the parties are still living together. I am often told that they are legally separated. What they actually mean is that they are physically separated. A legal separation only occurs when a court enters a decree of legal separation. As with a decree of dissolution of marriage, in a legal separation case, the court has to enter rulings and orders related to any minor children, child support, spousal maintenance, division of assets, debts and attorney’s fees.

Legal separations are not as common as dissolutions of marriage. For one thing, if you are legally separated, neither person can remarry. There are potential differences for taxes and health insurance for people are who are legally separated versus divorced.

Under Arizona law, if parties are still legally married, then community property law still applies. That means that even if they are living in different households, they are potentially liable for debts the other incurs and potentially able to share in increases in assets during the period of physical separation.

Protect Yourself

As always, there are exceptions to every rule and ways to protect yourself. If you find yourself in a cohabitation arrangement or physically separating, it may be a good idea to consultwith a family law attorney to discuss the risks and options available to protect yourself.

Speak with a Qualified Family Law Attorney at Duenas Eden Law

Let us protect you! At Duenas Eden Law, PLC we’d be glad to discuss the facts of your particular case and work with you in your Family Law case. We are qualified and trusted attorneys in Divorce, Child Custody Cases, Child Support, Spousal Support, Same-Sex Legal Issues and other Family Law matters. Serving the Phoenix metro area including Ahawatukee, Laveen, Tempe, Chandler, Mesa and Gilbert. Trust the Family Law Attorneys of Duenas Eden Law, PLC. Call today: (480) 285-1735.

When “Legal” Matters?, Duenas Eden Law
By Dorian L. Eden
Originally published in the November 2013 edition of Ocotillo Living
Top Rated Attorney in Phoenix, AZ Ahwatukee - AV Preeminent by Martindale-Hubble