Arizona Divorce Laws - Frequently Asked Questions
Filing for Divorce in Arizona
A divorce is started by filing a divorce petition, as well as numerous other documents which are required by statute to be filed with the initial divorce petition. The necessary documents are filed with the clerk of the court. The filing party is required to pay a filing fee at the time the initial divorce paperwork is filed which may, upon application, be waived if the spouse meets the financial requirements to waive that fee. Each county court has unique local rules that must be followed when the petition is filed. You must, therefore, check all appropriate rules to ensure you are filing the correct paperwork in your county. An experienced divorce attorney will be knowledgeable about the various procedural rules in your particular county.
Arizona Residency Requirement
The law in Arizona requires the spouse filing for the divorce to be a resident of the county where the case is filed for a period of at least ninety
(90) days prior to the date the petition for divorce is filed. As long as the spouse filing for divorce meets this residency requirement, the other spouse does not have to be a resident in the same county and does not even have to be a resident in the state of Arizona when the divorce is filed. There are, however, certain limitations regarding the court's authority to decide certain issues if the non-filing spouse does not reside in or have any significant connections to Arizona.
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Receiving Divorce Papers
It is important not to ignore the papers that have been served. The summons that was served will inform you of deadlines you must meet to protect your legal rights. One such right is the opportunity to file a written response to the petition within a certain number of days from the date you were served. The court may proceed with your divorce without your involvement if you do not file a correct written response with the court within the time allotted.
If you live in the state of Arizona, you must file a response to that divorce petition within (20) days of the date that the process server gave those documents to you. Not the date they were filed, but the date the process server served you with those documents. If you live outside the state of Arizona, you get a little bit more time. You have to file a response within (30) days of the date you were served with those divorce papers. If you have any other questions regarding what to do when being served with divorce papers, please feel free to contact one of our family law attorneys.
Benefits of Filing First
In terms of the dissolution of the marital relationship itself, there is no advantage to either party in being the first to file for the dissolution of marriage simply because a divorce is technically not granted to either spouse but is, instead, considered a termination of the legal marital relationship between both spouses regardless of who filed first.
There are certain procedural advantages, however, to filing first if your case proceeds to a trial. For example, the person who initially files for the divorce is called the "Petitioner", while the other spouse is referred to as the "Respondent". At trial, the Petitioner is permitted to present his or her entire case after which the Respondent is permitted to present his or her entire case. The Petitioner is then granted one more opportunity to present additional evidence when the Respondent concludes his or her case which, essentially, gives the Petitioner the last word before the judge makes his or her decision. Although this advantage is worth mentioning, you should not rush into a divorce simply to gain this procedural advantage if there is any chance of reconciling your marriage.
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Either spouse may file a request for the court to schedule a temporary orders hearing to establish orders regarding
temporary custody of children, temporary
child support, temporary
alimony (spousal maintenance), temporary exclusive use of property, and temporary payment of debts. These temporary orders are only effective until such time the court enters final orders in the case and, depending upon the particular orders entered, may be modified by the judge at the final trial.
Once the divorce, legal separation, or custody papers have been filed, how do I get the court to order temporary child custody, child support, spousal maintenance, division of property and division of debts?
The court typically will not schedule a hearing to establish temporary orders until a party files a separate petition asking the court to enter temporary orders in a case. The court will then schedule a hearing at which time it may enter temporary orders regarding custody of minor children, child support, spousal maintenance, payment of debts, use of property, exclusive use of the marital residence, and attorneys' fees and costs.
Before Temporary Orders
In Arizona, both parents have an absolute right to the care, custody, and control of their children until the court enters an order delineating each parent's rights. There are no rules with respect to the parents' respective rights to their children until an order is entered by the court which has the potential of creating a situation wherein one or both parents are unilaterally keeping the children from the other parent. This type of conduct, however, is not viewed upon favorably by most judges and provides a basis for the court to grant the non-offending parent custody of the children when the issues are presented to the court. It is important, therefore, to seek a temporary orders hearing as soon as possible to avoid any potential conflict between the parents.
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A spouse against whom a divorce has been filed has either (20) or (30) days after being served with those documents to file a written response to the divorce petition-depending on whether he or she lives in Arizona. That response must be filed with the clerk of the court.
If the other spouse does not file a response within the time permitted by the rules, the spouse who filed the petition for divorce may file paperwork to proceed with the process of obtaining a divorce without the participation of the other spouse. This process is referred to as a default divorce. A default divorce typically occurs much more quickly than a regular divorce but poses significant risks to the defaulted party as the court may enter any orders the other party requests.
If a response is filed, the divorce proceedings are concluded either by the parties submitting a settlement agreement to the court, which resolves all issues in the case along with a form of a divorce decree that meets all of the statutory requirements of a decree or the contested issues are presented to the court at trial.
Arizona law does not require you to be represented by an attorney to file for or
obtain a divorce. Arizona law, however, holds a person representing themselves to the same standards, rules, and procedures as an attorney-meaning that you are required to know all of the procedural rules and laws applicable to your case. The court and court staff are not permitted to provide you with legal advice regarding what you should do for your case or even how and when you are to file certain required documents and pleadings.
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Stopping Your Divorce
The judge will be more than happy to stop the divorce at any time before the court files the signed Decree of Dissolution of Marriage with the clerk of the court, so long as both spouses agree to dismiss the case. The court will not, however, dismiss the divorce proceedings unless both spouses agree to do so-regardless of who initially filed for the divorce.
Marriage Saving Services
Either spouse can file petition for conciliation services counseling. And, what that means is the court will stop the divorce case and will refer both spouses to counseling. If they have a private counselor they're free to use that counselor. If not, there will be one provided by the court and they will assist the parties in determining whether they can reconcile their marriage.
The Superior Court has committed a large number of free resources to assist you in reconciling your marriage through the use of trained family counselors. These services are provided by the Conciliation Services division of the court. These services are available upon request before and during the divorce process.
Contact Our Arizona Divorce Attorneys
Contact us today or call us at
(480) 305-8300 to schedule your consultation with an
AZ divorce attorney from Hildebrand Law, PC.