Family Law 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 several questions that need an answer as soon as possible. I am trying to go back home to New Mexico, my homestate, but under custody issues I can not leave the state with my son. If I leave the state I am considered "kidnapping" and I will be in contempt of court. My entire network is in New Mexico and I would love to take my son with me. What should I do? I desperately need to get out of AZ.
  • I filed in Globe county for Establish Legal decision making, she filed a response there, but I learned tonight that she moved to Maricopa County. How does this affect the case? Do I need to re-file in Maricopa County?
  • How are child custody cases handled on the Navajo Reservation?
  • I am 16 years old and I've been through my dad's custody till I was 14 until on November 19 he died and thn my mom got custody but my older sister told her if she got half custody we could get her benefits like insurance wise so at the time I signed the papers and a year passes and my sister has taken it over board she thinks she has full custody and we only se our mom on the weekend or on breaks is that fair? And well I've done some bad things in the past an she uses that against me and my mom can she use that against my mom if my sister wants custody and do I have the right to say no?
  • I have a 1 year old child. Her father went to prison when she was 2 months old. Now his mother is trying to get visitation with my daughter. Were set to go to trial in April. I'm not sure exactly what to do. I don't have a lawyer and I'm a full time single parent . I can't afford a lawyer. I'm not sure what I'm supposed to do or file. I don't understand the terms or the paperwork at all. Can she get visitation if I don't get a lawyer or miss file the information?
  • My sister is married to her husband. He moved to Arizona and married a lady in the Indian reservation would this be a legal marriage and what does my sister need to do to nail this guy.
  • If your under 18 and have a child are you considered an adult?
  • My husband and I have been married for 19 years. Common Law for 4 years and 14 years Legally Married (State of NM). We have been separated for 3 months, if I decided to divorce my husband my reason is "Adultery". We have a State Marriage Licence and we married in Navajo Nation Court. Do I file with the State of New Mexico or Navajo Nation. We have 2 children therefore child support will be filed. And can I charge my husband and his companion with "Adultery"?
  • My mother has a 94 year male friend, who is a fall risk, what are her legal liabilities for having in her home. Should we have him sign a waiver?
  • i have a friend who had a baby with a girl who he was dating and she left the baby with him, saying he can keep her that she wants to walk away from everything. What does he need to do to keep his daughter. And if she was to call the cops on him would he need to return the baby to his ex?

STORIES

  • 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. . .
  • I just helped my mother, age 89, deal with her Medicare HMO. . .

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