Divorce & Annulment Article


Family Law on the Navajo Nation: How is Property Divided in a Divorce?

Divorce on the Navajo Nation:  How is Property and Debt Divided in a Divorce

 

What is community property?

Community Property is property that was acquired by either spouse during the marriage.  It doesn’t matter whose name the property is in; if it was acquired after the marriage began, it’s community property.  But it does not include property a spouse acquired through inheritance or gift, so long as the inheritance or gift has been kept separate (as in a separate bank account).  Examples of community property are bank accounts, retirement benefits, ceremonial items, grazing permits, livestock houses, vehicles, etc.

 

What is separate property?

Separate property is property that a spouse owned or claimed before the marriage began.  It can also be property that a spouse acquires through inheritance or gift during the marriage which is kept separate.  In addition, all property accumulated or earned by the wife and the minor children in her custody while she lives separately from her husband is considered her separate property.

 

What about debt?

Debts that were incurred during the marriage are considered “community debts.”  These could be such things as credit card debts, loans, bills, etc.  It is important to remember that these debts are part of the property division in a divorce.  It doesn’t matter whose name the debts are in; if they were incurred after the marriage began, they are a community debt.

 

How does the court divide up the debts and property in the divorce?

The court first looks to see whether the property/debts are community property/debts or separate property/debts.  Then, a court will decide how to divide up the community property and debts.  The Navajo Nation Code requires a court to provide a “fair and just settlement of property rights between the parties.”  This “fair and just” standard may, but does not necessarily mean, that property is divided equally.  The court must look at all of the facts in a case and consider a number of factors:

 

-          Reasonable current market value of each major piece of community property/debt

-          Length of the marriage

-          Economic circumstances of each spouse (age, health, work/social position, amount/sources of income, vocational skills or need for re-training, employability, opportunities to acquire assets and income in the future)

-          Each spouse’s separate property and its value

-          Needs of the parties

-          Liabilities (debts) of the parties

-          Contribution of a spouse as a homemaker or the contribution of each spouse to the family

-          Who will have custody of the children, and the needs of the children

-          Efforts of each spouse in contributing to the family unit and in obtaining or wasting community property

-          Considerations of traditional and customary Navajo law

-          All other relevant facts.

 

What proof do we need to have to divide up property/debts in a divorce?

The key is that the court must know the value of the property and debts in order to make a fair and just settlement.  It is best if you have receipts and proof of the value of the property, and copies of statements about the debts.  You need to be able to present the information to the court in an organized way.  When you meet with an attorney or Tribal Court Advocate to discuss how to get a divorce, bring with you important documents relating to property and debts.  Getting a copy of your credit report is smart, because it will list all of the debts with current amounts owed.

 

What if we can agree on how to divide up the property/debts?

If you and your spouse agree on how to divide the property and debts in a fair way, you can submit a “stipulation” to the court—a written agreement signed by both of you.


Comments:

QUESTIONS

  • I have a questions, please help, thank you! 1.) we marriage on 2/14-2010 & my husband wanted to divorce because he already had a "new wife". Anyway, he said he need my social security number to file the divorce! I wondered is that required by the Law of Arizona?
  • My husband wants a Divorce and we have a boat that has His Name OR my name. Does the word OR make it community property? He says it was a gift to him and won't sell it. What does the word OR mean on the title? Is it community property?
  • If a couple married for 14 years and live in the same house in case of divorce who owns the house if the house was bought before the marriage by one of the spouse?
  • I printed out a Pima County #2 divorce packet but i live in Yuma County. Can i use that packet to file for a divorce in Yuma?
  • My wife and I were married in Phoenix a year ago, and now we would like to get a divorce. However, both of us are working abroad. Can we get a divorce or an annulment? Can we have a lawyer represent us and fly back for the court dates?
  • My husband is homeless and does not really have an address. I mailed the acceptance of service plus the divorce papers to him at his last known addressvia certified mail. If I get the papers back unclaimed or undelivered can I file this along with asking for a default or do I have to go by publication? I cannot afford all these fees. I did get a deferral for the court fees but did not check for publication fees. Publication sounds like it is a hard and delaying process. I hear some saying I can file if I get the certified green card back as proof of service or even if the papers come back unclaimed. We have three kids and I am asking for sole custody.
  • I got married in the state of Philadelphia, PA in 2004 and I have been separated since the year of 2012. I moved to the state of AZ in May of 2014 and I want to know if I can get a divorce here in the state of AZ.
  • MY X OR HUBBY DONT KNOW WHICH CAUSE HE WONT TELL ME IF HE DIVORCED ME 16 YRS AGO AND I DONT KNOW WHERE HE WAS LIVING TO FIND OUT. HE FIRST SAID WE WERE DIVORCED THEN HE SAID WE ARE NOT.
  • I wanted to know if furniture I already owned before the marrage and furniture that was purchased by my parents can legally go with me during the seperation/divorce?
  • My spouse and i both have a retirement plan thru our employer. We are 38 and 40 years old and getting divorced. Since we both have our own retirement plan, do we each get 1/2 of the others during a divorce? this seems silly? How does the court view this scenario? If only one spouse had a retirement plan i could see the division of it but it seems if both parties have a retirement plan, you would just keep your own?

STORIES

  • Age discrimination in the workplace. . .
  • He told me that I could actually get all the money I needed by using my home as collateral. . .
  • I just helped my mother, age 89, deal with her Medicare HMO. . .

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