“Bobrow Claims” and Reimbursements for Community Bills Paid During an Arizona Divorce
When a married couple separates, naturally, they are flooded with questions about what happens next. One of the more immediate questions is, who pays the bills? After all, being separated does not make the bills stop. In many cases, these bills are associated with community assets such as a home or a car. They need to be paid or you risk losing the asset. Often, one spouse steps in to pay the bills, and one of the first questions they ask their attorney is, Can I be reimbursed for these expenses? The simple answer is, yes. But whether you will be legally awarded reimbursement, is a more complex issue.
What community bills can a spouse get reimbursement for?
You can seek reimbursement for any community bills you paid while you were separated, if they were paid for with funds that belong exclusively to you and not with funds that belong to you and your spouse.
The more precise answer involves some legal jargon: “A spouse may seek reimbursement for any community obligation paid for with that spouse’s separate funds.” To better understand what that means, some important terms are defined below.
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What is a community obligation?
A community obligation is one that arose during the marriage (i.e., while the “marital community” was intact). This would include loan installment payments for community debts, such as a mortgage payment, car payment, utilities, or credit card payment.
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What are community funds?
Any salary or money earned or acquired during the marriage is considered community property and belongs equally to both spouses regardless of who earned it.
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What are separate funds?
Separate funds refer to money that is not community. Any money earned before the marital community is formed or after the marital community is severed belongs to the spouse who earns it. This also includes funds that were acquired by gift or inheritance, provided they have not been comingled in a community bank account. Also, under a prenuptial or postnuptial agreement, the spouses may have opted out of community property.
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What is the marital community?
The “marital community” refers to the total assets and debts that were accumulated during the marriage.
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When does the marital community form?
The marital community forms the day you are married.
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When does the marital community terminate?
The marital community is dissolved on the day the Petition for Dissolution (the paperwork that starts the divorce) is served on the Respondent, provided the divorce is eventually finalized on that same Petition. It can also be dissolved by a postnuptial agreement or legal separation.
Reimbursement Only for Community Payments made with Separate Funds.
You can only seek reimbursement if the money used to pay the bills was from separate funds and not part of the marital community. For example, if you used money from a joint account, you cannot be awarded a reimbursement because the money belonged to both you and your spouse. If you can show the money you used was from your separate funds you can seek reimbursement for bills you paid after the date of service.
What is a Bobrow claim?
A Bobrow claim is when a spouse requests the Court order the other spouse to reimburse them for the money, they spent on community bills while the divorce was pending. It is the term you’ll hear lawyers and judges use for a reimbursement claim. The name comes from the case Bobrow v. Bobrow, 241 Ariz. 763 (App. 2017).
Bobrow v. Bobrow Background
While this divorce was pending, Husband paid Wife’s vehicle loan and the mortgage on the marital residence. He requested reimbursement at trial. The trial court classified his payments as “gifts” and denied his reimbursement claim. He appealed.
The Court of Appeals in that case clarified an import principle—when the gift presumption applies. The gift presumption applies when—during the marriage—a spouse uses their separate funds to pay on a community asset. In that circumstance, there is a presumption that the paying spouse made the payments as a gift to the community and cannot seek reimbursement.
In Bobrow, the Court clarified that presumption does not apply once a Petition for Dissolution has been filed and served. Because of that presumption, a new legal analysis applies when reimbursement for expenses are paid after the date of service: Namely, the non-paying spouse must prove, by clear and convincing evidence, that the paying spouse intended to make a gift.
What do I need to make a case for a Bobrow claim for reimbursement?
You need proof of the bills you incurred, proof that you paid them, and proof that the money you use was your sole and separate money. In other words, you will need copies of the bills that were incurred, receipts showing that you paid the bills, and bank or credit card statements showing the money came from you separate account.
What’s the best way to show the money came from my separate account?
After the date of service, open a checking account and/or credit card in your name alone and pay the community bills from that.
Should a Bobrow claim go before the judge?
Ideally, no. This is the kind of thing that parties should work out among themselves. Because of all the paperwork involved, a Bobrow claim can itself be expensive and time-consuming to pursue if it goes to trial.
That said, we recognize that you don’t always have a reasonable party on the other side, and that may require you to litigate your Bobrow claim. Especially is the reimbursement you seek is a high dollar amount. Make no mistake, these claims are not helpful for petty bickering.
Bobrow and Reimbursement Claims – Frequently Asked Questions
We separated a year before we filed for divorce. My spouse lived in the marital residence, and I paid the mortgage. Can I seek reimbursement for the payments I made between the date of separation and the date of service?
Most likely not. The only way this may be possible is if you show you paid these bills with sole and separate funds. In most cases, people are paying these bills with money they earned simultaneous to the bills being accrued. Unless there’s a prenup in place, that means they are using community funds to pay the bills. Where community funds are used to pay the bills, a Bobrow claim cannot be pursued.
I have been living in the marital residence by myself since we filed for divorce. I have been paying the mortgage. Can I seek reimbursement?
Yes, you can. The use of an asset does not disqualify you from seeking reimbursement for payments you made on the marital residence while the divorce was pending.
My spouse has been living in the marital residence by himself since we filed for divorce. He has been paying the mortgage and is now seeking reimbursement for the payments. Do I have any defense against this?
Yes, but only if you can prove “ouster.” Ouster means that your spouse kicked you out of the house. See Ferrill v. Ferrill, — P.3d – (Ariz. App. 2022). This most obviously includes situations where one spouse removes the other spouse from the home by seeking a court order, whether it’s an Order of Protection or a temporary order regarding exclusive use of the marital residence. But other circumstances may also qualify for ouster. If ouster is shown, the judge must then then determine the fair market rental value of the home and reduce your spouse’s reimbursement request accordingly.
