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Divorce in Arizona

Arizona Divorce

Are you thinking about getting divorced in Arizona and wondering what happens now?

Many people feel overwhelmed, scared, regretful or guilty when they think about divorce. The legal process seems cloaked in secrecy and the filing clerks sure aren’t helping. If you have to hear they can’t give you “legal advice” one more time, you may lose your cool.

You are reaching out for information and it seems like it is either not available or there is simply too much to process. You have friends telling you conflicting stories about what you can expect in terms of child support, alimony or spousal maintenance, and who will keep the house.

Have no fear! Modern Law provides step-by-step email instructions on the Arizona Divorce Process, free webinars on all aspects of Arizona Divorce, and an entire Do-it-yourself Divorce website too. This article will walk you through the following subjects:

Arizona No-Fault Divorce

Arizona is a no-fault divorce state. This means that unless you have entered into a covenant marriage, anyone can get divorced if they want to do so. Even if your spouse “won’t agree.” By following the Arizona divorce laws, you will be ensured a divorce regardless of whether or not your spouse will agree to your terms.

Covenant Marriage

Arizona became the second state in the country to adopt the ability to enter into a “covenant marriage” in 1998. When a couple enters into a covenant marriage, they are publicly declaring a commitment to traditional “fault based” divorce requirements. They must take premarital counseling prior to the marriage and agree that the will only divorce where proper grounds exist. The couple makes the following promise:

  • We solemnly declare that marriage is a covenant between a man and a woman who agree to live together as husband and wife for as long as they both live. We have chosen each other carefully and have received premarital counseling on the nature, purposes and responsibilities of marriage. We understand that a covenant marriage is for life. If we experience marital difficulties, we commit ourselves to take all reasonable efforts to preserve our marriage, including marital counseling.
  • With full knowledge of what this commitment means, we do declare that our marriage will be bound by Arizona law on covenant marriages and we promise to love, honor and care for one another as husband and wife for the rest of our lives.

A marriage may be converted to a covenant marriage by submitting an affidavit with the oath.

Grounds for divorce of covenant marriage include:

  • Adultery
  • Conviction of a felony
  • Cruelty or domestic violence
  • Abandonment
  • Living separately continuously without reconciliation for at least two years prior to the filing of a divorce; one year prior to the filing of a legal separation
  • Chronic alcohol or drug abuse
  • Both spouses agree to a divorce

In reality, if a spouse wants a divorce, there is little you can do to stop them. The courts do not treat the dissolution of a covenant marriage significantly different than they do a non-covenant marriage. Even with the covenant marriage, breach of the promises, or breaking the marital vows, does not create a tort- or civil claim for damages. Domestic violence can create a claim for damages.

Arizona Residency Requirement For Divorce

In order to file for divorce in Arizona, at least one of the parties needs to have lived in Arizona for 90 days. There are special rules for military members who claim their residence to be the state of Arizona.

Common Law Marriage

The Arizona Legislature has not created a way for people to enter into an Arizona Common Law Marriage. However, Arizona does recognize all out of state marriages validly entered into in the state or country where the marriage took place. For instance, in Texas if a couple lives together and “holds out” or claims to be married to the public, they have entered into a valid common law marriage. In Kansas, the couple needs a marriage agreement plus the holding out as a married couple. Arizona will perform a divorce for  a couple married in another country or a tribal marriage as long as the marriage was validly entered into.

Legal Separation vs. Divorce

Many clients ask if a legal separation is a good option for them. If you are considering a legal separation, it is important to understand the legal consequences, as well as the benefits and risks of an Arizona legal separation vs. an Arizona divorce.

The procedure for obtaining a legal separation is the same as a divorce, and will be discussed below. Legally, most of the same rules and laws apply, except at the end of the day, you are not free to remarry. In both a legal separation and divorce, the court will distribute final orders that stipulate division of spousal assets and debts, legal decision-making and parenting time determinations, and details regarding spousal support and/or child support. The marital community will be severed when the Petition for Legal Separation is served upon the other spouse.

There is no residency requirement to file for a legal separation. In the event you needed to protect property but didn’t qualify for residency to file for divorce, you could file for legal separation.

Both spouses must agree to a legal separation. If one spouse objects, the action will be converted to an action for divorce as soon as the residency requirement has been satisfied.

In both legal separation and divorce, the obligations and rights between the two spouses are terminated under Arizona community property law. However, legal separation does not restore the right of either spouse to remarry. Of course in divorce, each spouse walks away “single” and is free to remarry if he or she wishes.

Although orders will be given by the court in both situations, there are some reasons why a legal separation may be preferable to a divorce. For example, a couple may not actually be sure they want to end the marriage. Some couples try legal separation as a “trial” to see whether they wish to terminate the marriage or attempt to work things out. Other issues may exist, like concern over continuous healthcare coverage, or religious beliefs regarding divorce.

While many people who become legally separated ultimately dissolve their marriage, this is certainly not true for everyone. Arizona law states that in a legal separation, the marital community is severed and any property acquired by a spouse after serving a petition for dissolution, legal separation, or annulment, is the separate property of that spouse—IF the petition results in a decree, whether of dissolution, legal separation, or annulment.Some couples recognize the cost a divorce or dissolution would result in to one party. If a spouse has significant health issues and the cost of health insurance would be prohibitive, the parties may choose to pursue a legal separation in order that the spouse needing the medical insurance may remain on the other spouse’s coverage. There are a myriad of other reasons a couple may decide on legal separation instead of divorce. Most importantly, such a decision should be that of the couple—what suits their needs best?

In addition to the court entering final orders in either a divorce or a legal separation, the parties may enter into an agreement that’s specific to their needs and wishes, and submit it to the court. The court will usually find the agreements binding. However, after considering the terms of the legal separation agreement, and considering the economic circumstances of the parties and other relevant evidence, the court may find the agreement unfair, except for those provisions related to providing for support, custody, and parenting time of children. Therefore, even if the parties agree, the court will enter a decree rejecting the parties’ agreement.

Uncontested Divorce

How to Get an Uncontested Divorce in Arizona

There is no specific process for filing an uncontested divorce. Unlike many other states, Arizona does not have a fast-track process for uncontested divorce.

Even when you and your spouse agree on everything when facing a divorce, the process can still be fairly daunting and complicated. There are several options for how to move forward and a few key things that need to take place.

One spouse must file a petition for dissolution. This is how all divorces start, regardless of whether or not the spouses agree on the terms. The filing spouse will become the Petitioner and the responding spouse the Respondent. The petition can be general or specific. If the petition is very specific and includes all of the terms agreed upon by both spouses, then you may be able to move forward via default.

After the petition is filed, it must be served upon the opposing party, the other spouse. Service can take place in one of many ways, including personal service or by having the responding spouse sign an acceptance of service. Within 20 days of being served, the responding spouse may file an answer or allow the time to lapse and proceed via default.

To proceed via default, the answering spouse will do nothing. The petitioning spouse can file an application of default after the 20 days has elapsed and then 10 days later ask the judge to sign an order of default. At that point, the terms of the petition will control the divorce.

There are a few things to watch out for if proceeding by default. YOU MUST MAKE SURE TO ADDRESS ALL ISSUES IN THE PETITION. I recommend including a detailed property settlement agreement and parenting plan that you attach and incorporate in your petition.

Another sticky area is that there is a 60-day mandatory waiting period from the time you file the petition until you can legally become divorced. I recommend that you wait until 60 days have passed after you have served the petition before you file the application of default.

The other option for moving forward when you both agree to all terms of your divorce is by consent decree. Here, one spouse files the petition, serves the other party and the served party files a response. Sixty days later, the two spouses file a signed consent decree. In some ways, this is a cleaner, easier way to get divorced.

If you move forward by default and you have minor children, it is possible the judge may not accept the terms in the petition. On the other hand, if you proceed with a consent decree, it is crystal clear that you both intended the terms you signed off on and it is very unlikely that one spouse will be able to change their mind later.

Default judgments can be set aside, so by choosing the default option you may be leaving the door open to having the other party try to contest the judgment later. On the plus side, if you move forward via default, only one filing fee must be paid, the fee for the petition. The respondent never files a response and therefore escapes the fee.

Annulment

Unlike a divorce, an annulment undoes the marriage. It’s like the “undo” button on a computer or control+alt+delete on a PC. While divorce is the remedy for a valid marriage. An annulment is the proper remedy when seeking to undo a marriage that was never valid. An action for annulment is procedurally similar to an action for divorce and can address issues of custody for joint children and property that was acquired in joint tenancy. A person is not eligible for alimony in an action for annulment. Grounds for annulment include:

  • That a prior marriage was never properly dissolved
  • The parties are blood relatives
  • Lack of mental or physical capacity to marry (underage, mentally ill or disabled)
  • One or both parties were intoxicated at the time
  • lack of contractual intent
  • fraud, duress, misrepresentation of religion
  • refusal of intercourse- no consummation of the marriage
  • No marriage license
  • proxy marriage
  • concealment of a prior marriage

In the event you can qualify for an annulment, you may end up in a better place than you would have going through a divorce. You should carefully consider whether or not you may qualify for an annulment, and talk to an attorney about whether you can qualify to file a Petition for Annulment.

Arizona Divorce Law

In the event that you and your spouse do not agree on some or all issues in your divorce, Arizona divorce laws will determine the outcome for any unresolved issues. If you and your spouse agree to work outside the Arizona divorce laws, you can determine your own fate. With very few exceptions, the court will accept whatever agreements you and your spouse reach on the following issues.

  • Property division
  • Debt division
  • Alimony or spousal maintenance
  • Child support
  • Child custody legal decision-making
  • Parenting time
  • Attorney fees

The following list suggests the types of relief which may be requested in the action:

  • Pertaining to marital status—
    • dissolution of marriage,
    • legal separation,
    • annulment,
    • conciliation;
  • Pertaining to children—
    • preliminary injunction,
    • restraining order,
    • temporary custody,
    • permanent custody,
    • temporary support,
    • permanent support;
  • Pertaining to property—
    • preliminary injunction,
    • restraining order,
    • inventory of property,
    • order granting temporary possession,
    • division of property,
    • approval of separation agreement,
    • appointment of a receiver;
  • Pertaining to spouse—
    • preliminary injunction,
    • restraining order,
    • order of protection,
    • temporary maintenance,
    • maintenance,
    • temporary attorney’s fees,
    • attorney’s fees,
    • restoration of wife’s former name;
  • Pertaining to obligation—
    • assumption of debts,
    • payment of debts,
    • educational funds,
    • insurance policies.

Property and Debt Division

Arizona is a community property state. When you married, you and your spouse formed a partnership, called the community. Arizona divorce laws consider everything that happened after you married to be for the benefit of the community. There is a strong presumption that all property and debts be divided equally when you get divorced. There are exceptions, of course. Any money that has been inherited or was gifted to you will be separate property and not subject to division by the court. It is important not to co-mingle separate assets with community assets, or a judge may determine that all of the property will be considered community property. Learn more on community property here.

Child Custody and Parenting Time

If you are getting a divorce in Arizona and have children, you will need to file a “petition for dissolution of a non-covenant marriage with children” to begin the process. In addition to the property and monetary issues, you will also need to address custody, parenting time, and child support.

Arizona strongly prefers joint custody, now called joint legal decision-making. Unless one parent is unfit, the court is very likely to order that parents share joint legal decision-making. Joint legal decision-making means that both parents must work together to make decisions regarding:

  • Medical care and treatment,
  • Religious decisions,
  • Educational decisions, and
  • Personal care decisions for the child.

Parenting time will be ordered in the best interest of the child, but the court will assume that equal parenting time, when possible, is in the best interest of the child. Special rules apply in situations involving domestic violence and substance abuse.

Arizona child support. Child support in Arizona, and all states, is pursuant to a calculator. Inputs into the calculator include both parent’s income (not including their spouse’s or roommates’ income), health insurance expenses, other children, spousal maintenance paid and received, extraordinary expenses, and parenting time. Unless otherwise agreed by the parents, the court almost always orders the presumed guidelines child support. Learn more on child support here.

Spousal Maintenance or Alimony. What is referred to as alimony in most states is called spousal maintenance in Arizona. Unlike child support, there is no calculator to determine the amount or duration of spousal maintenance. Click here for a more extensive overview of spousal maintenance.

Relocation. Because Arizona favors joint legal decision-making and equal parenting time, relocation of one parent with the children is very difficult. The burden is on the moving parent to show the move is in the best interest of the child and will minimize the impact on the relationship between the children and the non-moving parent. Learn more on relocation here.

If you are looking for more on the substantive law, check out our areas of law pages on divorcechild custodyproperty division, and spousal maintenance.

Arizona divorce process

The Arizona Rules of Family Law Procedure governs all of the procedural rules in Family Court.  these rules combine elements from the rules of evidence, the Rules of Civil Procedure, and the rules of procedure for juvenile court. The goal was to create a less adversarial process designed to facilitate mediation and problem-solving, not litigation. The family law rules recognize that a divorce decree is rarely the end.

The Petition

Every Arizona divorce case begins with the filing Petition in Family Court. The first step in the Arizona divorce process will either be filing the petition or responding to the petition, so the first thing we will tackle are these initial filings in Family Court.

The rules went into effect on January 1, 2006, and govern the entire family court process. The rules are divided into the following general categories:

  1. General Administration–Rules 1–22
  2. Pleadings and Motions–Rules 23–35
  3. Parties–Rules 36–39
  4. Service of Process–Rules 40–43
  5. Default Decrees, Consent Decrees & Dismissals–Rules 44–46
  6. Temporary Orders–Rules 47 and 48
  7. Disclosure and Discovery–Rules 49–65
  8. Settlement and Alternative Dispute Resolution (ADR)–Rules 66–75
  9. Pretrial and Trial Procedures–Rules 76 and 77
  10. Judgments and Decrees–Rules 78–90
  11. Post-Judgment Proceedings–Rule 91
  12. Civil Contempt and Arrest Warrants–Rules 92–94
  13. Other Family Law Services and Resources; Domestic Violence Benchbooks–Rules 95 and 96
  14. Family Law Forms–Rule 97

Arizona Family Court

In Maricopa County, all family court cases are heard “in family court.” This means there are assigned judges who only hear family law cases. They abide by their own local rules and the Arizona Family Law Rules of Civil Procedure. Family court judges are routinely working to improve the process and encourage settlement.

Each Arizona family court case begins with the filing of these initial documents, including the Petition and Response. Either party may or may not also request temporary orders by filing a motion along with the Petition or Response. A temporary order is an order issued during the pendency of a case before a final order is issued. The order could be for child support, maintenance, payment of bills, use of the home or any other matter.

After the initial filings, the next step for the divorce in Arizona is discovery and disclosure, which represents the “meat and potatoes” of your divorce and the beginning of pretrial conferences.

Pleadings

The Petition starts every action for divorce. It must contain certain elements, like a caption, jurisdictional allegations, a demand for the relief requests, a signature and verification page including a notarized signature. Other requirements include:

  1. A statement that the marriage is irretrievably broken or one or both of the parties desire to live separate and apart, or, if the marriage is a covenant marriage, any of the grounds prescribed in 25-903 or 25-904,
  2. birth date, occupation, and address of each party and the length of domicile in this state (unless one or both have a protected address),
  3. date and place of the marriage, and whether the marriage is a covenant marriage,
  4. names, birth dates, social security numbers and addresses of all living children and whether the wife is pregnant,
  5. details of any agreements between the parties as to support, custody and visitation of the children and maintenance of a spouse, and
  6. what you want. For instance, are you asking for spousal maintenance, attorneys fees or sole legal decision making?
  7. Proper jurisdictional allegations

The jurisdictional allegations include whether one or both parties have lived in Arizona for at least 90 days and whether any minor children have been in the state for the last six months. In the event that your children have not been in Arizona for the last six months, they may still qualify for Arizona jurisdiction under the UCCJEA.

Venue

Venue is similar to jurisdiction but refers to which county is proper for the action and jurisdiction refers to the state where the action can be heard. Venue is proper Actions for dissolution of marriage or legal separation when brought in the county in which a petitioner is residing at the time the action is filed.

This can be tricky. What if both spouses file for divorce in separate counties? Then both are the petitioners and both actions are proper! In that event, some judges defer to whoever filed first, other judges will look to other outside evidence like where the parties lived together or where the children go to school to determine proper venue.

How to Serve Your Petition

Your Petition, along with a summons and other accompanying documents, must be served upon the opposing party. The date of service is a very important date. It is the date that ends the marital community and the date that starts the clock ticking for a response.

The Respondent may be served in Arizona in the following ways:

  1. by personal delivery,
  2. by substituted service, or
  3. by mail and signed acknowledgement.

An out-of-state respondent may be served

  1. by direct service,
  2. by registered mail, or
  3. by publication.

Rule 43(C)(2) of the new Arizona Rules of Family Court Procedure states that a paper is served by:

  1. handing it to the person;
  2. leaving it:
  • (i) at the person’s office with a clerk or other person in charge or, if no one is in charge, in a conspicuous place in the office; or
  • (ii) if the person has no office or the office is closed, at the person’s dwelling or usual place of abode with someone of suitable age and discretion who resides there;
  1. mailing it via U.S. mail to the person’s last know address—in which event service is complete upon mailing; or
  2. delivering the paper by any other means, including electronic means, if the recipient consents in writing to that method of service or if the court orders service in that manner—in which event service is complete upon transmission.

Rule 43(C) was amended effective June 1, 2006, in order to authorize service by electronic means if the recipient consents in writing.

The Court Comments to Rule 43 define when electronic service and other methods of service are considered complete. Specifically, the Court Comments state that:

Service by electronic means or by “other means” is complete upon transmission, which occurs when the sender does the last act that must be performed by the sender. For example, electronic service is complete when the sender executes the “send” command on a computer to transmit the paper to the recipient. Similarly, facsimile service is complete when transmission of the paper on a facsimile machine is completed. Likewise, service by an overnight delivery service is complete when the sender makes delivery to the service designated to make the overnight delivery to the recipient. As with other modes of service, evidence that the intended recipient did not receive a paper served by these methods may defeat the presumption that service has been effected.

The Preliminary Injunction

Upon the filing of the petition a preliminary injunction goes into place. The preliminary injunction automatically goes into effect, whether requested or not. This preliminary injunction enjoins, or orders both parties to refrain from:

  • transferring, encumbering, concealing, selling, or otherwise disposing of any of the joint, common, or community property of the parties except if related to the usual course of business, the necessities of life or court fees and reasonable attorney fees associated with a dissolution of marriage action without the written consent of the parties or the permission of the court;
  • molesting, harassing, disturbing the peace of or committing an assault or battery on the person of the other party or any natural or adopted child of the parties;
  • removing any natural or adopted child of the parties then residing in Arizona from the court’s jurisdiction without the prior written consent of the parties or the permission of the court.
  • removing or causing to be removed the other party or the children of the parties from any existing insurance coverage, including medical, hospital, dental, automobile and disability insurance.

The injunction has the force and effect of an order signed by the judge and it is enforceable by all available remedies including contempt. It remains in effect until further order of the court or until a final decree is entered or until the action is dismissed. But, the preliminary injunction may be revoked or modified by the court.

There is specific caselaw that allows  a party to move money or sell community assets to pay for the reasonable attorneys fees associated with the divorce.

Temporary Orders

A Party may file a motion for temporary orders along with the petition or the response. The motion can ask for orders relating to temporary property use, custody, support, alimony, or attorneys fees. The motion needs to include some specific facts as to why the party needs the temporary order. In the event you are asking for money, in the form of support or assets, you should include information related to the liquid assets in both parties possession.

You can get a temporary order after you have provided notice to the other party, and there has been a hearing on the issues. The exception, is when you are requesting an emergency temporary order without notice, which can be granted only if there is substantial evidence that there will be irreparable injury to the moving party if the court does not enter the order immediately. In practice, it is very difficult to get an order without notice.

Further, where relevant, the motion must contain the following information and documentation:

(1) a proposed parenting plan specifically stating the custody, parenting time, and visitation requested for all parties to the action;

(2) a completed Child Support Worksheet setting forth the amount of support requested in accordance with the Arizona Child Support Guidelines;

(3) the specific duration and amount of any spousal maintenance requested together with an Affidavit of Financial Information; and

(4) if a party seeks temporary orders to divide community property and debts and for payment of attorney’s fees the motion shall set forth the specific relief requested and the proposed division of the property and debts as well as the income and assets available to each party and the party shall file an Affidavit of Financial Information.

The court can also make temporary orders respecting property of the parties. Often one spouse will be given temporary possession of the home and/or some other property such as an automobile; as part of the order the other spouse will be restrained from interfering with that possession. In Maricopa County, the party requesting this temporary restraining order to exclude the other party from the residence because of physical abuse must be present in court, but this requirement can be waived for good cause.

Discovery and Disclosure: Preparing for Trial in Family Court

For our clients, this is our next major milestone meeting after the initial consultation or hire date. This meeting is usually in-office and can last up to two hours. During this meeting, we work on getting into the nitty-gritty of your case. We will go over all relevant documents and materials that we will need for your case, both from you and the opposing party. We will go through the Rule 49 disclosure chart and the mandatory disclosures required under Rule 49, which you can learn more about here and here.

There is some homework before our meeting. Fortunately, we have broken it down into a three-step process to make it easier to handle. If you want to get started now, check out the charts here and here.

Disclosure and discovery become both negotiation and trial tools. It includes completing your Affidavit of Financial Information. Our system provides you with the tools you need in order to systematically identify and organize all of the evidence you will need for your divorce in Arizona.

Disclosure and discovery tools include:

  • Interrogatories
  • Request for Production of Documents
  • Request for Admissions
  • Depositions
  • Subpoenas

Pre-Hearing Conferences

When you file for divorce in Arizona, there are a number of non- evidentiary, pre-hearing conferences prior to your final hearing. Non-evidentiary means that witnesses and evidence will not be introduced. The judge will make procedural decisions but not substantive decisions. That means that the judge may decide to send you to mediation or when to set a status conference, but the judge will not decide how much your child support will be.

These non-evidentiary pre-hearing conferences may be called any of the following names:

  • Resolution Management Conference
  • Early Resolution Conference
  • Status Conference
  • Return Hearing

Note: A Temporary Orders Hearing is an evidentiary hearing. Evidence will be taken and the judge will make decisions regarding substantive legal issues.

Negotiations

For your divorce in Arizona, you will usually be required to engage in some sort of formal negotiation process. This may be mediation through conciliation services (at the courthouse) or an Alternative Dispute Resolution with a Judge Pro Tem. The following are different possibilities for formal and information negotiations processes.

  • Alternative Dispute Resolution
  • Mediation through Conciliation Services
  • Private Mediation
  • Settlement Conferences with Lawyers
  • Informal negotiations between the parties

Trial Preparation and Trial

It is important to note that most people do not reach this step. Approximately 90% of cases can be settled by diligently going through the process above. With that being said, the last step in the process is preparing your evidence and witnesses for trial and drafting a pretrial statement. Your pretrial statement is the most important document in the trial prep and trial process. If you hire an attorney for only one step in your entire case, this should be the time.

If you find at any point in time you need assistance with your divorce in Arizona, call us, register for a webinar, or email us! We want to hear your story and help come up with a plan!