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?
I have filed all of my paperwork and was advised to call the default line in 10 business days, yet I do not have a number for that. What do I do?
I am legally divorced, I was a stay at home mom. I have just started working pt, but do not have enough money to get a lawyer. Will his income be counted as mine, even though I have no access to it. I'm wondering if I qualify for free legal assistance. We are not agreeing on custody.
I was incarcerated in july of this year and was released just recently, during that time my wife and 2 children had moved to kansas I am most likely to file for divorce and will be seeking joint custody. I am planning on having the kids for their summer break and winter breaks.Since she is out of state what is the procedure for this to occur and what must I file,also will she have to come back to Arizona for the proceedings or can she remain in Kansas?
- Please select your county of residence below.
State Bar of Arizona
Maricopa County Bar
Referral number 602-257-4434
Pima County Bar
Referral number 520-623-4625
National Domestic Violence Hotline
Bankruptcy Court Self Help Center
Certified Legal Document Preparer Program