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.


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QUESTIONS

  • When can I file for a divorce?
  • What is a Dissolution of Marriage?
  • How long do I have to file annulment papers in the state of Arizona? in other words what is the statute of limitations on time?
  • I have filed for a legal separation and want to drop it, can this be done? I have filed the acceptance papers, and my husband has not responded yet. we are trying to work out our problems and not ready for a divorce. How do I go about rescinding the filing?
  • I have been unable to find and secure any legal representation throughout out entire divorce and I have paid dearly for it. I live on a fixed disability income and cannot afford to pay for services. I have gone through local channels such as AZ211, AZLAW.COM & COMMUNITY LEGAL SERVICES twice and I am still not represented. Any help would be more than appreciated! Thank you, Diana Berne
  • Hello, I married my spouse about 1 year ago. We then PCSed to overseas. My wife found employment in a GS-8 job. Now she wants to live the single life- never comes home, parties all the time with others, and has had affairs with other men. I want to divorce her but she doesn't want to get a divorce because she wants to keep the GS job. Her job really likes her and is looking for a way to keep her here . Its I want nothing to do with her. My question- is there a law that protects service members from these predatory spouses that marry just for the preferential hiring for these GS jobs?
  • Can I get an anulment instead of a divorce?
  • How can I make a legal separation a divorce, when I did not offer any response to the petitioners request? We worked the separation out together, so I didn't want to fight her!
  • The Judge granted me a divorce 12/08/06.My ex keeps filing Motions to the courts requesting to stop the default divorce. The Judge has already denied two as previously denied by the courts. What can I do to make her stop, or is there any paperwork I can file for her to stop.
  • We would like to start the Divorce process ourselves, when we file the Petition do we have to submit a parenting plan at that time if we are planning on joint custody of our two minor children. Having trouble just getting started, thank you.

STORIES

  • I just helped my mother, age 89, deal with her Medicare HMO. . .
  • If you get a divorce, make sure your date of birth is on the Decree if your name is changing!. . .
  • He told me that I could actually get all the money I needed by using my home as collateral. . .

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