Divorce in Arizona | Divorce Laws in Arizona
The Attorneys at Hildebrand Law, PC have always taken phenomenal pride in thoroughly preparing clients for their temporary orders hearing. Before the conduction of a client’s hearing even begins however, our attorneys will have taken the time to individually prepare clients first-hand, and will have explained to them every detail of what will happen during the hearing, along with answering any remaining questions they might have. Clients of Hildebrand Law, PC will be continually informed on the status of their case (should anything new arise), and are frequently available to answer any uncertainties or questions. Our attorneys take profound pleasure in helping clients to develop a deeper understanding of the facts, the most compelling arguments in the case, and the questions that will be asked to both the client and witnesses. We will also exert prodigious effort in judiciously and intelligently outlining every detail of the hearing to our clients, and as an extra provision, we prefer to further elaborate on why we are asking certain questions in the first place, and their relevance and importance in the case.
What is the Divorce Process in Arizona
A divorce in Arizona may be initiated upon one of the spouse’s filing a petition for dissolution of marriage. Once the petition for dissolution of marriage is filed with the court, a private process server will proceed to serve the other spouse with the petition. The opposing spouse then has twenty days to file a written response to that petition with the court if the person was served in Arizona. If the person was served in another state and does reside in Arizona, the opposing party has thirty days to file his or her written response with the court.
It is important to understand that either party may request the court set a Temporary Orders Hearing to establish temporary child custody, child support, alimony, use of homes and vehicles, payment of debts, and an award of attorney fees, which orders will control until a final ruling is issued at a final trial.
The court will typically set what is known as a Resolution Management Conference (i.e., “RMC”) before setting the case for a Temporary Orders Hearing. A Resolution Management Conference is held when the court wishes to meet with the parties in order to determine whether the parties have reached any agreements. If there are unresolved issues, the court will subsequently typically refer the parties to mediation and schedule the Temporary Orders Hearing.
The judge may order a follow up status conference after the scheduled mediation to determine if the remaining issues in the case have been resolved or narrowed. After these hearings have resolved or narrowed the remaining issues, the court will set you for your final trial. After your trial has been completed, the judge has up to sixty days to issue a final ruling in your case.
Arizona Divorce Laws FAQ Page
Thank you for visiting our Arizona Divorce Laws Frequently Asked Questions page. Our Scottsdale Arizona divorce attorneys want to provide you with answers to all of your questions regarding divorce and family law.
We strive to provide answers to all of your questions regarding divorce and family law. We encourage you to view our Arizona Divorce Laws page, as well as our Family Law Blog to obtain more information about all aspects of family law.
Can My Spouse Be Ordered to Pay My Attorney Fees?
The Arizona divorce laws permit the Court to order one spouse to pay some or all of the other spouse’s attorney fees and costs. Although there are many different statutes that provide the court with this authority, the most cited statute is A.R.S. 24-324. That statute allows a divorce judge to order one spouse to pay some or all of the other spouse’s attorney fees and costs. The statute requires the trial court to consider how reasonable both parties have been, as well as the parties’ respective financial resources to be able to pay those attorney fees and costs. The Arizona Court of Appeals in the unpublished decision of Flynn v. Rodrick held that a trial court may award a spouse attorney fees for either of the two reasons cited in the statute and does not, correspondingly, have to find that both factors apply.
Can I Represent Myself in a Divorce Case?
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 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.
You will also be required to file the correct Arizona divorce papers throughout the different stages of your Arizona divorce case. Failure to do so may result in the court refusing to allow you to use certain exhibits, witnesses, or even to present certain claims or issues to the Court, as well as other available sanctions. However, not all errors in the completion of the necessary court paperwork will result in the court losing its authority to dissolve a marriage.
You should read our synopsis of the Arizona Court of Appeals’ decision in the Duckstein v. Wolf case for more insight into the difference between procedural irregularities in the filing of divorce papers in Arizona, which does not deprive the court of its authority to dissolve a marriage, and substantive errors which do prevent an Arizona court from dissolving a marriage.
Attorneys spend their entire careers mastering their understanding of the applicable procedural rules, substantive laws, and the art of effective and persuasive advocacy of their client’s interests at trial. An attorney will utilize his or her experience to provide you with valuable advice regarding your chances of prevailing upon any particular issue, as well as the best way to prepare your case for trial. An attorney will many times save you more in terms of time, money, and frustration than if a person represented himself or herself.
Does Adultery Have An Effect on an Arizona Divorce?
Adultery by one spouse in an Arizona divorce may have an effect on the case. Each spouse owes a duty to the other spouse to manage the community finances in a way that benefits the community. An argument can be made that community money spent on his or her paramour is a waste of community assets; thereby enabling the innocent spouse to recover his or her share of the monies used in furtherance of the adulterous relationship. There are also serious civil and criminal repercussions to an adulterous spouse, which we cover more fully on another page of our website. You may wish to view our Arizona Divorce Laws Regarding Adultery to learn more about those civil and criminal penalties, as well as to obtain more information on a waste claim in an Arizona divorce related to adultery.
Are Prenuptial Agreements Enforceable in Arizona?
The Arizona legislature adopted the proposed Uniform Premarital Act promulgated by the American Bar Association as the foundation for the statutes concerning whether prenuptial agreements are enforceable in Arizona. The applicable statutes concerning the requirements for creating a valid and enforceable prenuptial agreement are set out in Arizona Revised Statute Section 25-201 through 25-205. Arizona Revised Statute Section 25-202 sets forth the requirements to create an enforceable prenuptial agreement in Arizona.
We have also written an informative article on the Arizona Court of Appeals ruling regarding whether a prenuptial agreement is enforceable in Arizona, which you may want to read for more information on Arizona premarital agreements.
Difference Between Divorce and Legal Separation in Arizona
Many people ask about the difference between a divorce and a legal separation in Arizona. There are many reasons some individuals choose a legal separation over a divorce. The main difference between the two types of family law cases in Arizona is that a divorce completely dissolves the legal status of the marriage and returns each spouse to the status of a single person. A legal separation in Arizona does not dissolve the legal status of the parties’ marriage and does not, therefore, return each party to the status of a single person. A person who is legally separated, therefore, is not permitted to remarry.
The court is required in both an Arizona divorce case, as well as an Arizona Legal separation case, to divide the parties’ debts and assets, enter orders regarding the care, custody, and control of the parties’ children, enter a spousal maintenance award if appropriate, and order the payment of child support. Generally, all assets and debts incurred by either party subsequent to the service of the Petition for Dissolution of Legal Separation or Petition for Dissolution of Marriage will be the sole and separate property and/or debt of the party acquiring that property or debt.
Some people choose to pursue a legal separation in Arizona, as opposed to a divorce, for three primary reasons. Specifically, a party who is married less than ten years, yet wants to have the ability to make a claim for higher social security benefits under their spouse’s social security benefits eligibility, may choose not to complete a divorce until ten years have passed since the date of the parties’ marriage. Others may choose a legal separation to stay on their spouse’s employer sponsored group health insurance plan if that group plan permits a spouse to do so. Lastly, some people have firmly held religious beliefs against divorce and, therefore, choose a legal separation over a divorce in Arizona.
When Can I File For Divorce?
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 of the state of Arizona when the divorce is filed. There may be, 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.
The party wishing to file for divorce in Arizona must file a verified (i.e., notarized) Petition for Dissolution of Marriage and associated miscellaneous documents. Those documents then need to be served on the opposing party. The opposing party will then have twenty days to file and answer if they were served in Arizona or thirty days to file a response if they reside outside of Arizona. A defect in the process of filing and/or serving the opposing party may render any subsequent orders issued by the court void or voidable, depending upon the defect. Not all such defects, however necessarily render any subsequent orders or judgments void. You should read our summary of the Arizona Court of Appeals decision in the Duckstein v. Wolf case as just one example of the effect of a defect in the filing of the original Petition for Dissolution of Marriage.
What Reasons Do I Need to Show to File for Divorce?
Arizona is considered a no fault divorce state; meaning you do not have to establish any reason for the divorce other than that the marital relationship is irretrievably broken. The court will accept your statement that the marriage is irretrievably broken for the purpose of granting a divorce without inquiring into the reasons why you believe a divorce is necessary. The only exception to this general rule pertains to covenant marriages, which is discussed more fully below.
Is There an Advantage to Being the First to File for Divorce?
In terms of the dissolution of the marital relationship itself, there is no advantage to either party 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.
How do I Start a 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 county 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.
Where Do I File For Divorce in Arizona?
There are many trial courts in Arizona. The various counties in Arizona all have a trial division referred to as the Superior Court. The Superior Court is the highest level trial court in Arizona and is the only court that has the authority in Arizona to grant a divorce.
If both spouses and their children reside in the same county in Arizona, the divorce proceeding may be filed in that same county. Complicated issues arise, however, as to which court should preside over a divorce when the spouses and/or their children reside in different counties and/or different states.
All divorces are filed in the Superior Court in the County in which one of the parties has resided for at least ninety (90) days. A judge of the Superior Court is the only authority that may legally dissolve a spouse’s legal marital status and return that spouse to the status of a single person.
A judge has the authority to dissolve the marital legal status, to divide assets and debts, to issue orders concerning the care, custody and control of the parties’ children, to enter orders for the financial support of those children, to enter spousal maintenance orders for the support of a spouse, and to order a party to pay some or all of the other spouse’s attorney fees and costs incurred in the case.
Who Has Custody of Children When a Divorce is Filed?
Both parents have an absolute right to the care, custody, and control of their children until such time the court enters an order delineating each parent’s rights to their child(ren). The parents are, therefore, each entitled to the care, custody and control of their children until such time a court enters specific child custody and parenting time orders.
Simply stated, there are no rules with respect to the parent’s respective rights to spend time with their children until an order is entered by the court. This 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 primary physical custody of the child(ren) when the issues are presented to the court at a Temporary Orders Hearing. Unless an agreement is reached between the parties, it is important to file for a Temporary Orders Hearing as soon as possible to avoid any potential conflict between the parents.
What is a Temporary Orders Hearing in Arizona?
The court may set a temporary orders hearing on the motion of either party in an Arizona divorce, legal separation or child custody case. The issues that may be decided at a temporary orders hearing may include child custody, parenting time, child support, alimony, exclusive use of property, such as homes and cars, and the payment of the parties’ debts during the pendency of the case.
The court may also order one party to pay some of the other party’s attorney fees and/or expert witness fees. There are several statutes that address the court’s authority to order one spouse to pay the other spouse’s attorney fees. It is important, therefore, to understand the statutes to rely upon when requesting an award of attorney fees during the pendency of the case versus at the end of the case. You may read our summary of the Arizona Court of Appeals decision in the Myrick v. Maloney case to learn more about the payment of attorney fees in an Arizona divorce case.
It is important to understand that the court’s temporary orders only last until the court issues final orders in the case. When final orders are issued by the court, the temporary orders no longer exist. In legal terms, the temporary orders are deemed to have “merged” into the Decree.
What Happens at a Temporary Orders Hearing in Arizona?
Both parties and their attorneys will appear before the judge assigned to your case on the date and time previously scheduled by the court for the temporary orders hearing. Both parties will be seated at separate desks with their respective counsel. The judge will enter the court room and the bailiff will tell everybody to please rise whereupon both parties and counsel will stand until the judge tells everyone they may be seated.
The Bailiff will then give the oath to the parties and all witnesses. Most judges will then ask the Petitioner’s attorney if any of the issues have been resolved. If you have settled some or all of the issues, one of the attorneys will recite the terms of the agreement to the judge at which point the judge will ask the other attorney if that is his or her understanding of the agreement.
Lastly, the judge will ask each party if they have reached the agreements recited by the attorneys and may ask additional questions, such as whether either party was under any duress or coercion in reaching the agreement, whether they are satisfied with the advice they have received from their counsel, whether they believe the agreement is fair and equitable, and whether agreements regarding the children are in the best interests of the children. The judge may then adopt the parties’ agreements as the orders of the court.
If you have not resolved all of the issues, the court will begin the hearing by asking the Petitioner to present their case first, which involves eliciting testimony from witnesses and introducing documents marked as exhibits into evidence. Both lawyers will have an opportunity to question each witness or object to any exhibit offered into evidence.
Petitioner and his or her witnesses will first be questioned by his or her attorney (i.e., direct examination), followed by a cross examination by the opposing attorney, and then followed by another round of questioning from his or her attorney (i.e., rebuttal testimony) to elicit additional testimony that is limited to only those areas addressed in opposing counsel’s cross examination.
Once Petitioner completes the presentation of all of their witnesses, Respondent begins their case by calling witnesses to testify and introducing exhibits into evidence with the same cross examination and rebuttal testimony elicited by the attorneys. Once the presentation of the evidence is complete, the attorneys may provide the court with brief closing arguments as to what facts they believe the evidence proved, the applicable law that applies to each issue, and why his or her client should prevail on the temporary orders each client has requested the Court issue.
Keep in mind that at the end of the temporary orders hearing many judges are unlikely to issue rulings immediately after the hearing. You will most likely wait a few weeks, and sometimes longer, before you will receive the judge’s written ruling regarding the issues presented to to the Court at that temporary orders hearing.
How To Prepare for a Temporary Orders Hearing in Arizona
How long does it take to get Temporary Orders in an Arizona Divorce Case?
It often takes a court approximately thirty to sixty days to schedule a temporary orders hearing. The court, however, may expedite the hearing if a spouse files a motion to accelerate that hearing because he or she has been cut off from all community income, does not have an income, or the children are in danger of serious physical, emotional, or psychological harm.
In some cases, the court may issue emergency child custody orders the same day the petition for an emergency custody order is requested by a parent, if the Petition filed provides sufficient facts that, if true, place the children in imminent danger of serious physical, emotional, and/or psychological harm.
Can I Stop a Divorce if I Change My Mind?
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.
How Long Does an Uncontested Divorce Take in Arizona?
Generally, spouses are permitted and encouraged to reach agreements regarding all issues pertaining to their divorce including reaching agreements regarding the custody of their children, the amount of child support and spousal maintenance to be paid be either spouse, and the division of the parties’ assets and debts.
If you reach an agreement on all issues, your Marital Settlement Agreement and Consent Decree for Dissolution of Marriage may be submitted to the Court after sixty (60) days from the date the Petition for Dissolution of Marriage was filed and served upon the other spouse.
A settlement agreement negotiated and drafted by an experienced family law attorney is almost always more comprehensive and complete than any order a court may issue simply because spouses are able to customize all of the terms of their settlement agreement to meet their unique needs and circumstances.
Additionally, there are a large number of other important legal marital issues the court may not have the authority to otherwise order but which can be included as an enforceable portion of a marital settlement agreement. Simply stated, you may gain rights through an expertly drafted settlement agreement that a court would otherwise not have provided to you.
You should also be aware that many judges simply do not have the time or the inclination within the time he or she has to hear and decide your case to issue an order covering all of the numerous intricate aspects of the marital relationship. A carefully drafted settlement agreement resolves these problems.
How Long Does a Contested Divorce Take in Arizona?
Arizona law does not permit a judge to sign a divorce decree until at least sixty (60) days have passed since the original divorce papers have been served upon the other spouse. You can think of this sixty (60) day time period as a required cooling off period during which either spouse may seek mandatory court ordered free marital counseling through the Conciliation Services division of the court.
The court can sign a divorce decree immediately after the expiration of this sixty (60) day time period if you and your spouse reach an agreement regarding all of the issues in the divorce, such as agreements concerning child custody, support, and division of assets and debts.
If you are unable to reach an agreement with your spouse regarding all of these issues, your case must be set for trial. The scheduling of that trial date will depend upon a variety of factors including the complexity of the issues in the case, the potential need for experts to evaluate certain aspects of your case, and the availability of time on the particular judge’s calendar who has been assigned to your case.
What Do I Do if I am Served With Divorce Papers?
It is important not to ignore the papers that have been served upon you. The Summons that was served upon you will inform you of deadlines you must meet to protect your legal rights such as filing a written response to the petition within a certain number of days from the date you were served with the petition. 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.
What is a Default Divorce in Arizona?
A party against whom a divorce has been filed has either twenty (20) or thirty (30) days after being served with those documents to file a written response to the divorce petition depending upon whether he or she was served in the state of Arizona or was served outside the state of Arizona respectively.
That response must be filed with the clerk of the court. If the other spouse does not file the 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.
What Happens if the Spouse Files a Response Before a Default is Entered?
If a response is filed before the clerk of the court submits an entry of default, a default will not thereafter be entered. The divorce proceedings are, thereafter, concluded either by the parties submitting a settlement agreement to the court that resolves all issues in the case along with a form of a divorce decree that meets all of the statutory requirements, or the contested issues are presented to the court at trial.
Does the Court Offer Services to Save a 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 during the divorce process.
What is a Family Law Master in an Arizona Divorce Case?
The court may appoint a Family Law Master in your case. A Family Law Master is an individual with some particular experience and expertise appointed by the Court to issue a report and recommendation regarding the issues assigned to him or her. Both parties retain the right to object to the report and recommendations of the Family Law Master.
For example, the Court may appoint a Family Law Master to rule upon the value of a business. Both parties are provided an opportunity to present evidence to the Family Law Master and present arguments supporting their respective positions. The Family Law Master will then make a recommendation to the court. After the court receives that recommendation, the judge will often accept it as an order of the court, unless either party files an objection.
If either party files an objection, the court will set a trial on the issue and, thereafter, issue a ruling on that issue. The court may then accept, modify, or completely disregard the recommendations of the Family Law Master and issue an entirely different order.
What Does it Mean if Your Divorce Case is on the Inactive Calendar?
Arizona judges are required by a mandate from the Arizona Supreme Court and rules promulgated by the Supreme Court to process cases efficiently to avoid prolonged litigation in divorce cases. The court does not set a case for trial automatically after a divorce petition has been filed.
The rules require at least one of the parties to either file a motion to set the divorce for trial or file a motion to schedule a status conference with the court, referred to as a Resolution Management Conference, at which time either party may ask the judge to set the case for trial.
If the divorce case is inactive, you will receive a notice your case has been placed on the court’s inactive calendar. The notice will provide a date by which you must either submit a settlement agreement or file a motion to set the case for trial.
If you do not do so by the date provided in the notice, your case will be dismissed. It is, therefore, very important to know the date by which you are required to file the necessary documents to avoid the dismissal of your case.
How is a Divorce Finalized?
A judge finalizes a divorce by signing a Decree of Dissolution of Marriage and filing that document with the clerk of the court. A spouse is not actually divorced until that Decree is signed by the judge and that Decree is filed with the clerk’s office.
A court may not, correspondingly, sign a Decree of Dissolution of Marriage until all issues in the case are either settled or ruled upon by the court and included in the final Decree. In other words, the court cannot grant a divorce by entering a Decree of Dissolution of Marriage before issues such as child custody, child support, spousal maintenance, and division of debts and assets are resolved by an agreement of the parties or decided by the judge.
Although it is unusual for there to be a change of judge during the middle of your trial, it has occurred. Fortunately, you may proceed with your trial before a new judge with out having to start your case over in some circumstances. If you want more information on this subject, you should read our article about the Arizona Court of Appeals’ decision in the Gersten v. Gersten case.
What Happens If the Case Goes to Trial?
The court will issue orders prior to trial requiring each party to submit their exhibits to the judge’s clerk prior to trial and requiring the parties to file a Joint Pretrial Statement. The Joint Pretrial Statement will specify the issues to be addressed at trial (i.e., child custody, alimony, child support, division of property and debts, attorney fees and costs etc), as well as the witnesses and exhibits that will be used at trial among other things. It is important to include every issues in the Joint Pretrial Statement or you may waive the right to present any unlisted issues at trial. You should read our summary of the Arizona Court of Appeals decision in the Leathers v. Leathers case discussing a party’s waiver of an issue because it was not listed in the Joint Pretrial Statement.
You should be aware, however, there are many exceptions to the ruling in the Leathers v. Leathers case that center upon obligations the trial court is required by law to rule upon. For example, the Arizona Supreme Court in the Hays v. Gama case held the Leathers case did not apply to issues pertaining to child custody or parenting time because a trial court is required by law to determine which child custody arrangements are in the best interest of children, so a judge may not limit the introduction of relevant and admissible evidence on issues pertaining to children. There are other cases that also distinguish Leathers as well.
On the day of your trial, you will be seated at your table prior to the judge entering the courtroom. The judge will enter the courtroom and the bailiff will announce for everyone in the courtroom to please rise. The judge will sit down at which point he or she will tell everyone they may be seated. The judge will then typically ask if any agreements have been reached between the parties and, if so, those agreements will be shared with the judge on the record.
The bailiff will then identify all witnesses in the courtroom and will have all witnesses sworn under oath. The judge will then tell the Petitioner to explain his or her case in an “opening statement” and begin the presentation of his or her witnesses. After Petitioner questions each witness (i.e., direct examination), the other party will have an opportunity to ask questions of the same witness (i.e., cross examination), the Petitioner will then have the opportunity to ask another round of questions to address issues raised in the question asked by the Respondent (i.e., redirect examination). This process continues until the Petitioner completes all questioning and testimony at which time he or she will “rest” their case. The Respondent will then begin his or her case in the manner of direct examination, cross examination by the other party, and then redirect examination by the Respondent.
The parties will then each be provided an opportunity to present closing statements that summarize the evidence presented, apply the facts of the case to the applicable law, and argue why their position should be adopted as the orders of the court. The judge will then either rule on the issues or may announce he or she will take the matter under advisement to issue a ruling sometime thereafter. A trial judge is required by the Arizona Constitution to issue a ruling within sixty (60) days of the date of your trial.
The judge has the authority to restore a spouse to the spouse’s maiden name at the time he or she signs the final divorce decree. The court’s order constitutes an official name change for that spouse.
Can I Change the Orders in a Divorce Decree?
Some orders in a divorce decree may be changed, while other orders may only be changed if the proper procedures was used to make those other orders modifiable. All orders pertaining to child support, child custody, and parenting time may be changed whether sufficient changes have occurred justifying the change to be in the children’s best interests.
Alimony payments may be changed if alimony was ordered in the divorce decree, the term of that award has not yet expired, a sufficient change in circumstances has occurred justifying a modification of the term or amount of the alimony, and the parties did not agree the award was non-modifiable when the divorce decree was entered and accepted as the orders of the court.
Generally, final division of property and debts is not modifiable by the parties after a divorce decree has been entered. However, there is an exception to that rule. Specifically, if the parties settled their case and included a provision allowing the parties to change their agreements regarding the division of property and debts and the included language providing that there written settlement agreement would be “incorporated, but not merged in the divorce decree”, the parties may modify their property and debt agreements. You should click on the following LaPrade v. LaPrade case to read the Arizona Court of Appeals ruling in that case for an indepth discussion of the legal principle of merger.
What is a Covenant Marriage?
The Arizona Legislature passed a law creating a type of marriage called a “covenant marriage.” It does not replace the kind of marriage already available. Instead it offers an additional option to couples who wish to marry. The covenant marriage differs both in the steps necessary to get married and the reasons why a legal separation or divorce may be granted by the court.
To enter into a covenant marriage, the couple must first participate in counseling (referred to as “premarital counseling”) from a member of the clergy or a marriage counselor. Then, when applying for a license to be married, both persons must show their intention to enter into a covenant marriage by signing a special statement (or “declaration”) on the application form. In a covenant marriage, legal separation or divorce (in Arizona, a “dissolution of marriage”) may be granted by the court only for specific reasons listed in state law.
To be married in Arizona, a couple legally qualified to marry must first get a marriage license. (Sections 25-101 and 25-102 of the Arizona Revised Statutes indicate who may legally marry.) To get a license, a written application must be filed with the Clerk of the Superior Court in any county of the state or with some justices of the peace, city clerks or town clerks.
For a covenant marriage, certain information must be included in the marriage license application. By law (Section 25-901 of the Arizona Revised Statutes) a person must state their intention to enter into a covenant marriage. This statement (or “declaration:) must contain three things:
A written statement, printed exactly as follows: 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.
The signed and sworn statement of both people that they have received premarital counseling from a member of the clergy or from a marriage counselor. In premarital counseling, both people must be advised that a covenant marriage is a commitment for life. Premarital counseling also must include a discussion of the seriousness of covenant marriage, the requirement to seek marriage counseling if marital difficulties develop and the limited legal reasons available for ending the marriage by legal separation or divorce. The couple also must receive a copy of this pamphlet.
The signatures of both parties witnessed by a court clerk. The parties must submit with the license application a sworn, notarized statement from the member of the clergy or marriage counselor who provided the premarital counseling. This statement must confirm that the parties were advised about the nature and purpose of a covenant marriage and the limited reasons for ending the marriage by legal separation or divorce. The counselor’s statement also must show that a copy of this informational pamphlet was given to each person.
Can I Convert My Marriage to a Covenant Marriage?
People who are already married may change (or “convert”) their marriage to a covenant marriage. In this situation, it is not necessary to have premarital counseling or to apply for a marriage license and go through a marriage ceremony. To convert a marriage, the married couple must pay a fee (prescribed in Section 12-284(A) of the Arizona Revised Statutes) to the Clerk of the Superior Court and present two things:
A written statement (“declaration”) like the one printed for unmarried persons seeking a covenant marriage.
A sworn statement listing the names and social security numbers of both spouses and the date and place their marriage ceremony was performed.
Some courts have preprinted forms for married couples to complete. The Clerk of the Superior Court will file the documents and issue a certificate stating that the earlier marriage is converted to a covenant marriage. However, the process of converting a marriage will not legalize a marriage that was not properly entered into or that is prohibited by Arizona law.
The statements for conversion to a covenant marriage may be submitted to the Clerk of the Superior Court in any county of the state and to some justices of the peace, city clerks or town clerks. You may call the Clerk of the Superior Court in your county for more information.
What Reasons Do I Need to Obtain a Divorce in a Covenant Marriage?
For a covenant marriage, the court can only grant a divorce (“dissolution of marriage” in Arizona) or a legal separation for certain, limited reasons. To get a divorce, any one of the following eight reasons must be proven to the court (these are listed in Section 25-903 of the Arizona Revised Statutes):
The spouse against whom the divorce case is filed (the “Respondent”) has committed adultery.
The spouse against whom the divorce case is filed (the “Respondent”) has committed a serious crime (“felony”) and has been sentenced to death or imprisonment.
For at least one year before the divorce case is filed, the spouse against whom the divorce case is filed (the “Respondent”) has been absent from (“abandoned”) the home where the married couple resided and refuses to return. The law allows an exception. A person may file for divorce by claiming that the other spouse has left the home and is expected to stay away for the one-year period.
If the spouse has not been away for one year when the court papers are filed, the divorce case will not be dismissed by the court. Instead the case will be put on hold until the one-year requirement is met. During this time, the court still may grant and enforce temporary orders for things like child support, parenting time (formerly known as “visitation”) and spousal support (sometimes called “alimony” or “spousal maintenance”).
The spouse against whom the divorce case is filed (the “Respondent”) either has (1) physically or sexually abused the other spouse, a child or a relative of either spouse who lives permanently in the married couple’s home, or (2) committed domestic violence (defined in Section 13-3601 of the Arizona Revised Statutes) or emotional abuse.
The spouses have been living separate and apart without getting back together for at least two straight years before the divorce case are filed. The law allows an exception. A person may file for divorce by claiming it is expected the spouses will be separated for the two-year period. If the spouses have not been separated for two years when the court papers are filed, the divorce case will not be dismissed.
Instead the case will be put on hold until the two-year requirement is met. During the two-year period, the court may still grant and enforce temporary orders for things like child support, parenting time (formerly known as “visitation”) and spousal support (sometimes called “alimony” or “spousal maintenance”).
The spouses already have been granted a legal separation by the court, and they have been living separate and apart without getting back together for at least one year from the date of the legal separation.
The spouse against whom the divorce case is filed (the “Respondent”) has regularly abused drugs or alcohol.
The spouses both agree to a divorce.
What Reasons Do I Need to Obtain a Legal Separation in a Covenant Marriage?
The reasons for obtaining a legal separation differ somewhat, but also are limited. The court must have proof that any one of the following is true (these are listed in Section 25-904 of the Arizona Revised Statutes):
The spouse against whom the legal separation case is filed (the “Respondent”) has committed adultery.
The spouse against whom the legal separation case is filed (the “Respondent”) has committed a serious crime (“felony”) and has been sentenced to death or imprisonment.
For at least one year before the separation case is filed, the spouse against whom the legal separation case is filed (the “Respondent”) has been absent from (“abandoned”) the home where the married couple resided and refuses to return.
The law allows an exception. A person may file for a legal separation by claiming that the other spouse has left the home and is expected to stay away for the one-year period. If the spouse has not been away for one year when the court papers are filed, the legal separation case will not be dismissed by the court.
Instead the case will be put on hold until the one-year requirement is met. During the one-year period, the court still may grant and enforce temporary orders for things like child support, parenting time (formerly known as “visitation”) and spousal support (sometimes called “alimony” or “spousal maintenance”).
The spouse against whom the legal separation case is filed (the “Respondent”) either has (1) physically or sexually abused the other spouse, a child or a relative of either spouse who lives permanently in the married couple’s home, or (2) committed domestic violence (defined in Section 13-3601 of the Arizona Revised Statutes) or emotional abuse.
The spouses have been living separate and apart without getting back together for at least two straight years before the request for a legal separation is made to the court. The law allows an exception. A person may file for a legal separation by claiming it is expected the spouses will be separated for the two-year period.
If the spouses have not been separated for two years when the court papers are filed, the legal separation case will not be dismissed by the court. Instead the case will be put on hold until the two-year requirement is met. During the two-year period, the court still may grant and enforce temporary orders for things like child support, parenting time (formerly known as “visitation”) and spousal support (sometimes called “alimony” or “spousal maintenance”).
Regular abuse of alcohol or ill treatment of a spouse by the spouse against whom the legal separation case is filed (the “Respondent”) makes living together intolerable.
The spouse against whom the legal separation case is filed (the “Respondent”) has regularly abused drugs or alcohol.
Contact Our Scottsdale Arizona Divorce Attorneys
If you are in need of a divorce lawyer in Arizona, the family law firm of Hildebrand Law, PC is only a phone call away. Our attorneys handle all types of divorce cases in Arizona. Please call (480) 305-8300 if you wish to speak with our Arizona divorce lawyers or have additional questions regarding Arizona divorce laws.
Follow Hildebrand Law, PC on Facebook