While the Second Amendment to the U.S. Constitution does allow citizens the right to bear arms, it does not take into account what may happen to those firearms in the event of a divorce. When this occurs, you may suddenly find yourself fighting in court to maintain ownership of your gun collection.
For gun owners and divorce in Arizona, this article will cover what you must know in regards to Arizona laws.
Asset Division
When couples are divorcing, asset division is always one of the most contentious issues that arise during the proceedings. Arizona is a community property state, which means that all property obtained during the marriage is presumed to be community property. Thus, your firearms purchased during the marriage will be subject to division, even if you and your spouse have an unwritten understanding that the guns are your property.
The court will, however, look at how the firearms in question were obtained. For example, if you received them as gifts or by inheritance, or if they were purchased prior to the marriage, the firearms are your sole and separate property and exempt from the division of community property. In that event, the burden will be on you to prove that the firearms are sole and separate property.
This can be done with receipts showing the firearm was purchased prior to the marriage, a will providing the firearms to you personally, a birthday card mentioning the firearm as a gift, or any other evidence you may obtain that shows the firearms are not community property.
If you fail to prove that the firearms are your sole and separate property, the Court may order that the weapons are community property, which will entitle your spouse to half of the firearms or half of their value. If you prove that the weapons are your sole and separate property, you retain the firearms and your spouse is entitled to none of the property and no one of their value.
Does Registration Factor into the Decision?
In many of these situations, you may think having the guns registered in your name is all that will be needed to retain ownership during the divorce. Unfortunately, that is not the case. Even if each of your firearms is registered only in your name, this will not factor into the final asset division decision made by the court. If the guns were purchased during the marriage, they will be presumed to be community property regardless of the registration paperwork.
Clear and Convincing Burden of Proof
If you are the spouse who is wanting to retain ownership of your firearms in Arizona, you must prove that they are your sole and separate property by clear and convincing evidence. The clear and convincing evidence standard of proof means that you have provided evidence sufficient to prove that your claim is substantially more likely to be true than not. Due to the many complexities that can arise in these situations, plan to regularly consult with your attorney so that you can improve your odds to win your case.
Child Protection and Custody
Firearm safety is often an issue in cases where a gun owner is involved in a custody dispute. Owning firearms in itself will not be an issue; however, irresponsibly handling or storing those firearms can be a concern to the Court. If evidence is presented illustrating that your minor child is able to access your firearms, the other parent may be able to successfully modify your existing custody orders through the Court.
While it typically takes several months for a custody modification hearing to take place, the court may issue an emergency order temporarily modifying the custody orders until the issue can be heard upon finding that the child would be at risk of imminent irreparable harm in the absence of the emergency order. Fortunately, unless the other parent can prove a child is being placed in immediate and unnecessary danger, it is unlikely the court will change the existing agreement.
Owning Firearms During Divorce
A divorce case does not impact your rights to own firearms; however, a protective order may impact your right to own firearms, and protective orders are frequently associated with divorce cases. If your soon-to-be ex-spouse obtains an Order of Protection against you, the judge could order that you surrender your firearms if the allegations demonstrate that you are a legitimate threat of harm to your spouse.
The Court has the option of ordering the surrender of firearms at the time the Order of Protection is issued, but more frequently makes the order to surrender firearms after a contested hearing if the Plaintiff succeeds in proving their case. That is why it is very important to consult a divorce attorney prior to requesting a hearing on the Order of Protection to better ensure that your gun rights will remain intact following a successful hearing.
Since emotions often run very high between spouses who are going their separate ways, always make sure you try to use common sense and excellent judgment until your legal proceedings are completed.
Whether you are the spouse who is trying to keep your prized firearms or a spouse who feels you are entitled to certain firearms as part of your financial settlement, always rely on the sound advice of an attorney who understands the nuances of Arizona marital laws. By doing so, you can get the advice you need to make well-informed decisions that will be to your benefit.
