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

  • my husband and i have been married for 13yrs. i have asked and told him that i want a divorce cause we lost respect for each other and neither of us are happy. dv is within this marriage. i'm tired of the fighting, arguing, etc. do you think the judge would grant my request for dissolution of marriage? i need help with this please. i cant and wont take no more of this abuse from my husband.
  • Husband wants to buy me of home mortgage which is under my name only. I would love to keep the home but I don't want to start a fight so I am considering moving out with my 2 kids. I want to be the primary household for my kids which is why I want them to live with me most of the time. What should I consider when moving out? Will this affect me negatively in or out of court?
  • My husband was Active Duty Army when we married and had a son together. He got a divorce without my knowledge after 8 years and went on to Retire as a Sgt. Major. Am I entitled to part of his retirement ? I now live in AL and he lives in VA.
  • I want to know how and where to proceed with collecting my money that was finalized with my divorce such as the 401k plan that I was awarded and my child support for 1,064 dollars a month that I havent recieved and if there is a time frame in collecting this money
  • If I am the respondent . what name goes in the person filing on the form myself the respondent, or my spouse the petitioner
  • My spouse was stationed as active duty in AZ, where we bought a house together and he still has an AZ driver's license, pays AZ taxes, and that house is his official address of record. Mine has changed. Can I file for divorce in AZ since he is an AZ resident (does the court consider him an AZ resident)? Thank you.
  • My question is: Sept 2003 I got married in San Jose, CA. I moved to Phoenix, AZ the same year in July, We had a daughter May 2004, So what Law would my divorce be under? My husband had a house several year before we got married, and till this day Im not on the title of the house or the Cars we purchased during our marriage, Am I intitled to half of anything if I divorce?? I never changed my last name to my married name can that be an issue??
  • My husband and I have a covenant marriage. We are getting divorced (we meet the necessary requirement to do so), but I'm not sure if I need to file different paperwork. All of the regular divorce paperwork for AZ states that it won't work for covenant marriages. Please advice. Thanks!
  • Is it required to file for child support? I filed for divorce and my ex and I are in agreement on everything, neither of us wants child support or spousal support and we filed a Maritial Settlement Agreement stating that neither of us is seeking Child support but when I am filling out the final decree it seems as though it is requiring me to also do the child support order and child support worksheet.
  • I brought my company into the marriage. It grew while we were married. Is it considered community property. She did not work for the company

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