Legal FAQ: Arizona Divorce Law (Dissolution of Marriage)
These Frequently Asked Questions are intended as a general guide to issues within the court system of the State of Arizona. Laws in other states may vary—consult your personal attorney or Hildebrand Law for more information any any of these topics.
How do divorces happen under Arizona law?
A divorce is generally referred to as a dissolution of marriage in most states. Judges of the Superior Court are the only authorities who may legally dissolve a couple's legal marital status and return them to the status of single people. In conjunction with a dissolution of marriage, Judges also have the authority to do the following:
Under Arizona law, spouses are permitted and encouraged to reach agreements regarding all issues pertaining to their divorce, including the custody of children, child support, spousal maintenance (or alimony), and the division of the spouses' assets and debts.
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 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.
Additionally, a judge simply may not have the time (or the inclination) to issue an order covering all of the numerous intricate aspects of the marital relationship as he or she hears and decides your case. A carefully drafted settlement agreement resolves these problems.
What does it mean to get a divorce?
When two people get married, their legal status changes: two single persons become a marital community. This creates several new specific legal rights and obligations between the married couple which did not exist before. A marital community is treated by the law very similarly to a business partnership, which generally means that both spouses share equally in the profits and losses of their joint enterprise regardless of which spouse created the profit or which spouse created the loss.
A divorce is a court proceeding to break up the marital community and return the spouses to the legal status of single persons. When the court dissolves a marriage, it is also required to enter orders providing for the custody of any children common to the parties, providing for the support of those children, providing for the support of either spouse by an award of spousal maintenance, if that spouse meets the requirements for support, and providing for the division of the spouses' assets and debts. The court may also order one of the parties to pay some or all of the other spouse's attorney fees and costs incurred in the proceeding.
What is the difference between a divorce and a legal separation?
A divorce completely dissolves a marital relationship and restores both parties to the status of single persons. A legal separation, however, does not dissolve the legal status of the marital relationship. Instead, it terminates the marital community such that all assets and debts incurred by either party subsequent to the decree of legal separation remains the sole and separate property and debts of the spouse who acquired the property and/or debt.
There are three reasons why you may wish to file for a legal separation rather than dissolution:
- You have been married less than ten years and wish to receive social security benefits
- You need to remain married to receive health and medical benefits under your spouse's insurance plan
- Your religion prohibits you from seeking divorce
You may petition the court at any time to convert a Petition for Legal Separation to a Petition for Dissolution.
What do I do if I am served with papers for divorce or separation?
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 have been served with divorce or separation papers, it's critical that you talk to an experienced family law attorney or lawyer specializing in Arizona divorce law who can help you navigate the difficult waters ahead of you.
How is the 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. Spouses are not actually divorced until that decree is signed by the judge and filed with the clerk's office. A court may not, correspondingly, sign a Decree of Dissolution of Marriage until all issues in the case—such as child custody, child support, spousal maintenance, and division of debts and assets—are either settled or ruled upon by the court and included in the final decree.
Where do I get a divorce?
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.
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 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.
When can I start a divorce case?
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.
What reasons or grounds are required to start a divorce case?
Arizona is generally considered a no fault divorce state, meaning you do not have to establish any specific 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.
How do I start a divorce case?
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.
Do we have to wait for the divorce to become final to decide issues of custody, child support, spousal maintenance, and so on?
No. 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 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.
Who has custody of the children if the court has not entered temporary custody orders in my case?
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.
How long does it take to get temporary orders in place so that I can start getting access to our child, child support or spousal maintenance?
It often takes approximately thirty to sixty days for the court to schedule a temporary orders hearing. The court, however, will often expedite the hearing if a spouse files a motion to accelerate the 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 custody orders on the same day the petition for an emergency custody order is requested by a parent if the children are in imminent danger of serious physical, emotional, and/or psychological harm.
What does it mean to obtain a default divorce?
A spouse 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 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.
What happens if the non-filing spouse files his or her response before being defaulted by the court?
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.
Does the court offer any services to help save a marriage and prevent a divorce?
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.
Can I represent myself in court?
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.
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 can 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 you represented yourself.
When will my divorce be finalized?
Arizona law requires a judge to wait for at least sixty (60) days to pass between the date the original divorce papers were served upon the other spouse and signing the final divorce decree. 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.
Can a woman go back to using her maiden name after the divorce?
The judge has the authority to restore a spouse's maiden name when the judge signs the final divorce decree. In Arizona, the court's order constitutes an official name change for that spouse.
Can I stop the 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.
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