Mesa Divorce Basics
Divorce is a court process to legally end a marriage. In Arizona divorce is called “dissolution of marriage” and court papers use the term dissolution of marriage instead of divorce. Arizona uses a no-fault divorce standard that does not require that one of the spouses prove blame or responsibility in order to end the marriage. The only question for the court when a “standard” marriage is involved is whether the marriage is “irretrievably broken,” meaning that there is no reasonable chance that the spouses want to keep the marriage together.
Where a “covenant marriage” is involved, the court cannot grant a divorce unless certain things such as adultery, abandonment, physical abuse or regular substance abuse are proven or unless both spouses agree that the marriage should end. A “covenant marriage,” which is presumably a higher standard of marriage that Arizona incorporated into law in 1998, differs from a standard marriage both in the steps necessary to get married and the reasons why a legal separation or divorce may be granted by the court. The grounds for dissolution of a covenant marriage are:
- Conviction of a felony which mandates imprisonment or death
- Abandonment for over one year
- Commission of domestic violence against spouse, child or relative
- Living separately and continuously and without reconciliation for over two years
- Living separately for over one year after a legal separation is obtained
- Habitual use of drugs or alcohol
- Both spouses agree to a dissolution
Either you or your spouse must be a resident of Arizona for at least 90 days before you may file for a divorce. As a Mesa divorce lawyer can explain, the divorce should be filed in the county in which the person filing resides. The legal divorce process begins when one spouse files a “Petition for Dissolution of Marriage” with the Superior Court in the Arizona county where the spouse requesting the divorce lives. If the parties are in agreement about property and debt division, as well as child custody and child support matters, the divorce can be finalized without a trial.
Under Arizona law, a divorce cannot be granted by the court until at least 60 days after the first court papers are delivered to the other spouse. If you and your spouse are in agreement about getting a divorce and other issues, the divorce can be finalized soon after the 60-day waiting period is over. If you and your spouse are not in agreement on how to settle all issues, the time it takes will depend on the complexity of your case as well as the court’s schedule.
A consent decree can be obtained without even going to court if you and your spouse can agree to all the terms of your divorce, including custody, parenting time, child support, property issues, debt issues, spousal maintenance and any other financial issues. The decree is the final order of the court legally ending the marriage. Spouses are not “divorced” until the court grants the divorce and the decree is signed by the judge.
Dividing the Property
In addition to ending the marriage, the court also has the authority to divide certain property and debts of the spouses. Arizona is a community property state, which means that any property acquired during the marriage is treated as being owned by both you and your spouse. The Arizona divorce courts attempt to distribute such community or marital property equitably unless one of the parties can show “excessive or abnormal expenditures.” An equitable distribution is a fair, but not necessarily equal, distribution.
Marital misconduct is not considered in the division. The court may consider excessive or abnormal expenditures of community property, and any destruction, concealment or fraudulent disposition of community property in making the division. The court may place a lien upon a spouse’s separate property in order to secure payment of child support or spousal support.
Arizona law provides that property owned before marriage can remain the “separate property” of that spouse. Also items that a spouse receives by gift or inheritance during the marriage are also the separate property of the spouse. Separate property is retained by the owner of the property.
Property that is considered “separate property:”
- For example, assets you had before you married may be considered non-marital or “separate property” if you kept that property separated from property acquired during the marriage
- The income produced by a separate property investment may also be non-marital property, as long as it hasn’t been “commingled” – mixed together with marital property
- Property you inherit from your family during your marriage will generally be considered your own separate property if it was willed exclusively to you and you did not commingle it with marital property during the marriage
You and your spouse may have a written agreement, which is called a “separation agreement,” that indicates how matters should be handled if the marriage ends. The separation agreement is a contract listing and describing the spouses’ decisions about ownership of real estate, dividing property, financial support and, if children are involved, even issues of custody and parenting time. In a divorce case, the court must accept the separation agreement (except for matters about custody, parenting time and support of children) unless it is unfair.
It is important to collect all the information you can about all your property, including when you purchased it, approximately how much it is worth, and details such as account numbers, serial numbers and so forth. Collecting this information before you see an Arizona divorce lawyer can save you a lot of time and money.
A court can order spousal maintenance or alimony to either party in Arizona. The parties may agree in writing as to maintenance and if the court finds that the maintenance agreement is not unfair, it may be made part of the final decree. In the absence of a written agreement, the court may award maintenance in amounts and for the periods of time as it deems just, without regard to marital misconduct and after considering all relevant factors.
Maintenance can be awarded to either spouse if the spouse seeking maintenance:
- Lacks sufficient property to provide for his or her reasonable needs
- Is unable to support himself or herself through appropriate employment
- Is the custodian of a child whose age and the condition is such that the custodian should not be required to seek employment outside the home
- Lacks earning ability in the labor market to adequately support himself or herself;
- Contributed to the educational opportunities of the other spouse
- Had a marriage of long duration and is of an age which may preclude the possibility of gaining employment adequate to support himself or herself
Alimony can be awarded for any of these reasons, but is also based on the other person’s ability to pay. Marital misconduct is not a factor to be considered. The factors to be considered are:
- The contribution of the spouse seeking maintenance to the earning ability of the other spouse and the extent that the seeking spouse reduced his or her income or career opportunities to benefit the other spouse
- The time for the spouse to acquire education and training for suitable employment
- The spouse’s future earning capacity
- The spouse’s standard of living during the marriage
- The duration of the marriage
- The ability of the spouse providing maintenance to meet his or her needs while providing the maintenance to the other
- The financial resources of the spouse seeking maintenance
- Any destruction, concealment, fraudulent disposition or excessive expenditures of jointly-held property
- The comparative financial resources of the spouses including their comparative earning capacities
- The age of the spouses
- The physical and emotional condition of the spouses
- The usual occupations of the spouses during the marriage
- The vocational skills of the spouse seeking maintenance
- The ability of both parties to contribute to the future educational costs of any children
- Any other factors the court may deem just and equitable
Awards of maintenance are to be paid through the court unless the spouses agree otherwise. Maintenance agreements may be made non-modifiable by agreement of both spouses.
Alimony awards are not permanent. Unless otherwise agreed in writing or stated in the decree, a spousal maintenance award is terminated upon the death of either party or the remarriage of the party receiving maintenance.
Child Custody and Visitation
In Arizona, the court will make child custody decisions solely based upon what is in the best interest and welfare of the child. The court may order sole custody or joint custody.
In making a custody decision, the court considers the best interests of the child and the following factors:
- The preference of the child
- The desire and ability of each parent to allow an open, loving and frequent relationship between the child and the other parent
- The wishes of the parents
- The child’s adjustment to his or her home, school and community
- The mental and physical health of the child and the parents
- The relationship between the child and the parents and any siblings
- Any evidence of significant spouse or child abuse
- Any coercion or duress in obtaining a custody agreement
- Which parent(s) have provided primary care of the child
No preference is to be given on the basis of the parent’s sex. If custody is contested, all other issues in the case are decided first. Joint custody may be awarded if the parents submit a written agreement providing for joint or shared custody and it is found to be in the best interests of the child, after a consideration of the factors listed above and the following additional factors:
- That neither parent was coerced or influenced by duress into withholding or granting his or her agreement to joint custody
- That the parents can sustain an ongoing commitment to the child
- That the joint custody agreement is logistically possible
A parent who is not granted custody of the child is entitled to visitation as long as it would not seriously endanger the child’s physical, mental, moral or emotional health. The Parent Child Access Guidelines outline the minimum frequency and duration that a non-custodial parent is entitled to have the child, unless there are reasons to restrict visitation. The Guidelines are based on certain premises, including that both parents are fit and desire to have an ongoing relationship with the child and that it is usually in the child’s best interest for each parent to have frequent, meaningful and continuing access to the child. In addition, grandparents and great-grandparents may be awarded visitation rights if it is in a child’s best interests.
After the custody order is signed by the judge and filed with the court clerk, both parents are bound by it. A motion to modify a custody decree may not be made earlier than one year after its date, unless the court permits it to be made on the basis of affidavits that there is reason to believe the child’s present environment may seriously endanger the child’s physical, mental, moral or emotional health. At any time after a joint custody order is entered, a parent may petition the court for modification of the order on the basis of evidence that domestic violence, spousal abuse or child abuse occurred since the entry of the joint custody order. Six months after a joint custody order is entered, a parent may petition the court for modification of the order based on the failure of the other parent to comply with the provisions of the order.
Support and custody of children are separate issues from each other. In Arizona, either parent may be ordered to pay child support, without regard to marital misconduct, based on the following factors:
- The financial resources of the child
- The standard of living of the child during the marriage
- The physical and emotional needs of the child
- The financial resources and obligations of both parents
- Any destruction, concealment, fraudulent disposition or excessive expenditure of jointly-held property
- The needs of the child
- The duration of parenting time and any related expenses
Awards of child support are to be paid through the court unless the spouses agree otherwise. In addition, there are specific Arizona Supreme Court guidelines for child support payments available from the Clerk of any Superior Court. The amount of support established by using the official guidelines is the required amount of child support, unless the court finds that such an amount would be inappropriate or unjust.
An Arizona child support order can be modified if there has been a substantial change in circumstances and the change is not something that has been previously addressed, such as a big increase or decre in either parent’s income or a change in living arrangements.