Arizona Divorce Laws
Arizona residents who are planning on getting divorced should have a thorough understanding of Arizona divorce laws before starting the process. At Hildebrand Law, PC, we understand that many of our clients don’t have a strong understanding of the typical divorce process, especially if they have never gone through a divorce before.
We encourage you to contact our firm if you have any specific questions pertaining to your divorce. In the meantime, here are a few of the more important Arizona divorce laws to keep in mind.
Arizona Is a “No-Fault” Divorce State
This is one of the first Arizona divorce laws you’ll have to deal with if you plan on filing for a divorce in this state. Some states allow for spouses to file for divorces based on the wrongful actions of one spouse. In Arizona, spouses cannot detail their spouse’s wrongdoing in their divorce petition. Many couples find that this is not an issue since the majority of marriages end based on irreconcilable differences. However, if your spouse acted wrongly in some way, this factor might play a role when child custody and/or alimony is awarded.
Couples May File for a Legal Separation If They Do Not Wish to Get Divorced
Arizona divorce laws allow couples to get legally separated, either before they are divorced or in lieu of a divorce. In order for a legal separation to proceed, at least one spouse must be a resident of Arizona and both spouses must agree to the separation.
Arizona Is Considered a “Community Property State”
Personal property is divided based on “community property” standards during a divorce in Arizona. This states that any income either spouse earned during the marriage, along with any assets that either spouse acquired during the marriage, legally belongs to both spouses equally. This community property will be divided equally during a divorce proceeding unless both spouses come to an agreement about the division of their property.
There Is a Residency Requirement in Arizona
Arizona divorce laws state that at least one spouse must have been a resident of Arizona for at least 90 days before filing for a divorce. Spouses may reside in different states.
Court Determine Child Custody Based on the Best Interest of the Child
This standard holds true not only in divorce laws in Arizona but in divorce legislation across the country. Like many states. Arizona judges tend to favor child custody agreements that allow children to have contact with both parents. However, if one parent is clearly unfit to provide adequate care, the court will take this into consideration when awarding custody.
Arizona Divorce Laws
Marriage is so common that at least 90 percent of the population has experienced it by the time they reach 50 years of age according to the American Psychology Association. The APA also reports that up to 50 of those marriages in the United States will end in divorce, so if you are married and living in Arizona, here is an overview of the Arizona divorce laws to give you an idea of what might be in store.
Marriage and divorce governed by laws
Marriage is an agreement between two people that is recognized as legally enforceable by the state. The parties entering into it must comply with certain legal requirements contained in the Arizona Revised Statutes, such as the need for a ceremony presided over by someone authorized by law to solemnize marriages (A.R.S. §25-111), for the marriage to be legally recognized.
When couples decide to end their relationship, the law allows for three ways to do so:
- Legal separation: The marriage continues, but the parties agree to live separate and apart. The process of legal separation usually includes dividing assets and liabilities of the parties and making provisions for child custody and support.
- Annulment: There are circumstances under which a marriage might be invalid. For example, a marriage between a parent and child is prohibited by A.R.S. §25-101, and an annulment proceeding would result in a court order declaring the marriage to have never legally existed.
- Divorce: Divorces is the termination of a marriage that was lawfully entered into by the parties and can only be accomplished through a court proceeding.
A divorce is more than simply the termination of a couple’s marital relationship. Financial issues must be resolved. If there are children, child custody, visitation and child support must be decided. Arizona divorce laws establish the procedures that must be followed to initiate and proceed with the dissolution of a marriage.
Covenant Marriages and Divorce
There is another type of marriage in Arizona known as a covenant marriage that couples can choose over the type of marriage defined in A.R.S. §25-111. The steps a couple must follow for a covenant marriage are found in A.R.S. §25-901 and include:
- Premarital counseling by a member of the clerk or a marriage counselor
- Both parties must sign a declaration showing their intention to enter into a covenant marriage to apply for a marriage license
- A sworn statement from the counselor or clergy confirming completion of the counseling requirement
Couples in a covenant marriage cannot get a divorce unless the spouse against whom it is sought committed one of the following grounds contained in A.R.S. §25-903:
- Convicted of a felony and sentenced to imprisonment or death
- Abandonment for at least one year
- Physical or sexual abuse or domestic violence of the spouse or a child
- Spouses living separate and apart for at least two consecutive years
- Legal separation granted by a court for at least one year
- Drug or alcohol abuse by the spouse
- Agreement to a divorce by both spouses
Jurisdiction over the parties
Divorce proceedings, which the Arizona divorce laws officially refer to as dissolution of marriage, go to the superior court. In order for the superior court to have the ability to hear the case, it must have jurisdiction. Jurisdiction requires that least one of the spouses must be domiciled in the state of Arizona at the time the divorce action is started.
Being domiciled in the state means the person has lived in Arizona for at least 90 days (A.R.S. §25-312). Members of the military stationed in Arizona are considered to have been domiciled in the state as long as they have been stationed there for at least 90 days.
Grounds and Procedures for Dissolving a Marriage
Starting a divorce in the superior court requires preparation and filing of a petition for dissolution of a marriage. The spouse bringing the action is referred to as the petitioner, and the other spouse is referred to as the respondent.
Arizona is a so-called “no-fault state” because it allows a marriage to be dissolved by the court when both spouses agree it is irretrievably broken. This does not, however, apply to a covenant marriage for which one of the eight grounds listed in A.R.S. §25-903 must be proven to exist.
Spouses in a non-covenant marriage may agree the marriage is irretrievably broken by joining in the petition filed with the superior court or by the respondent filing a sworn statement acknowledging the marriage is broken in response to a petition for dissolution of the marriage.
If a respondent denies the marriage is irretrievably broken, a hearing is held and the court will decide the issue. A.R.S. §25-316 allows a judge to take into consideration evidence presented at the hearing relevant to the issue of the likelihood of reconciliation. After the hearing, a judge can do one of the following:
- Find the marriage is irretrievably broken
- Find the marriage is not irretrievably broken and there are prospects for reconciliation
- Adjourn the hearing for up to sixty days during which a conciliation conference will be held to determine if reconciliation is possible
Following the conciliation conference, the adjourned hearing continues and ends with the judge issuing a finding as to whether or not the marriage is irretrievably broken.
Arizona divorce laws differ from those in other states in providing for conciliation services as part of or separate from the filing of a petition for dissolution of a marriage. As mentioned in the preceding section, a judge attempting to decide if a marriage is irretrievably broken can adjourn the hearing for a conciliation conference, but a conference can be initiated without starting a divorce action.
A.R.S. §25-381.01 through A.R.S. §25-381.24 offers a means for couples experiencing problems in their marriage to seek help to resolve them. Either spouse may file a petition for conciliation. Once a petition is filed, neither spouse can file for divorce or separation for at least 60 days. Pending actions for divorce or separation cannot move forward during this 60-day period.
Attendance of both spouses is mandatory at conciliation conferences. There is a marriage counselor or other trained professional conducting the conferences. Whatever is discussed at a conference is confidential.
One of the issues that must be resolved in a divorce is child custody and maintaining the relationship between the child and both parents. The overriding consideration in child custody is the best interests of the child as stated in A.R.S. §25-403.
Arizona divorce laws deal with decision-making and physical custody in child custody cases. A.R.S. §25-401 defines legal decision-making as the legal authority to make decisions about a child in the following areas:
- Personal care
Legal decision-making as used in the statute is the equivalent of legal custody for purposes state, federal and international laws. Granting parents joint legal decision-making allows both parents to share responsibility for nonemergency decisions made about a child’s care and welfare unless a court decree or the agreement of the parties provides otherwise. Sole legal decision-making is exactly what it sounds like: All nonemergency decisions about the care and upbringing of a child are left to only one parent.
Legal decision-making is not the same as physical custody. In fact, the parties could share decision-making authority under a joint arrangement, but physical custody could be granted to one of the parents. Physical custody is where the child physically lives. As with decision-making, physical custody can be jointly shared by both parents or given exclusively to one of them, but no matter which custody arrangement is decreed or agreed upon, parenting time with both parents must be encouraged (A.R.S. §25-408).
When it is left up to the court to decide parenting time and legal decision-making in a particular case, A.R.S. §25-403 provides a list of factors judges must take into consideration and include in their findings. State law does not favor one parent over the other simply because of gender or the age of a child. Instead, judges must take into consideration the following when deciding what is in the best interests of a child:
- Relationship, past present, and future, between the child and each parent
- Relationship between child and siblings or other relatives
- Adjustment of the child to home, school, and community
- Depending on the age and maturity of the child, the expressed preference of the child
- Mental and physical health of the child and both parents
- Likelihood of a parent to encourage and foster a child’s relationship with the other parent
- Conduct of a parent that intentionally misled the court
- Existence of domestic violence or child abuse
- Use of coercion or duress by a parent to obtain decision-making or parenting time
- Parent’s conviction for falsely reporting child abuse or neglect
Judges may also consider such other factors as they determine are relevant to establishing what would be in the best interests of the child and must include them in their findings.
A court granting a divorce must make provision in the decree for support of the child. The conduct of the parents toward each other is not a factor in child support decisions. Child support is decided based on what is necessary to support the child.
Child support in Arizona is calculated using the gross monthly incomes of both parents and a worksheet that takes into consideration the amount families living together with children would spend on a child’s support. The amount of support is shared by the parents based upon their respective gross incomes.
Guidelines used to by judges to decide whether to deviate from the model used to calculate basic child support are listed in A.R.S. §25-320 and include the following:
- Financial resources and needs of the child
- Financial resources and needs of the parent granted physical custody
- Standard of living enjoyed by the child when family unit was intact
- Physical and emotional health of the child
- Educational needs of the child
- Financial needs and resources of custodial parent
- Medical support needs of the child and provisions made for meeting them
- Parenting time and expenses related to it
Judges may also weigh excessive and abnormal spending by a parent or a parent’s efforts to conceal income or property when deciding child support issues in a divorce.
Depending upon the financial circumstances of a spouse in a particular case, A.R.S. §25-319 permits the court in a proceeding to dissolve a marriage the authority to grant support or, as it is referred to in Arizona, maintenance to one of the spouses. There are several factors that could warrant the granting of maintenance including the following:
- The spouse lacks the resources to provide for his or her reasonable needs
- The spouse lacks the skills or other means to obtain gainful employment
- The spouse contributed during the marriage to the other spouse obtaining an education
- The marriage was of long duration and the age of the party requesting support makes gainful employment unlikely
- Comparable earning of ability of each of the spouses
Judges may consider the length of time it will take for the spouse seeking support to acquire the skills and training needed to obtain employment. Maintenance is intended to provide assistance only for as is necessary for the receiving party to provide for his or her own support.
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Property distribution and community property
Arizona is a community property state. Real and personal property acquired during the marriage is treated as belonging to both spouses for purposes of distribution in a dissolution of marriage proceeding. However, property acquired before the marriage by one of the parties and property a party receives during the marriage by way of a gift or inheritance is classified as separate property. Property acquired in another state is community property if it would have been classified as such had it been acquired in Arizona.
When it divides property, a court may include any debts or other obligations related to it. Capital gains taxes or mortgage obligations due when the property is sold may be taken into consideration by a court as part of the overall property distribution process. For example, if a court gives a house to the petitioner in a divorce and a painting to the respondent with the intention that the values of each item are equal, it must reduce the value of the house by the amount of a mortgage the petitioner will be responsible for paying off (A.R.S. §25-318).
Property held in the name of both parties during a marriage can remain as such after the parties are divorced. Following the dissolution of the marriage, the jointly held property is treated as being held as tenants in common (A.R.S. §25-318). Tenancy in common means each spouse owns an undivided one-half interest.
A person bringing separate property into a marriage or acquiring it during the marriage through inheritance or as a gift must be careful in order to preserve its status as separate property. Depositing an inheritance into a joint bank account is one method by which separate property can become community property. Using funds received as a gift to make improvements to a home owned with your spouse could cause the gifted funds to lose their status as separate property and become community property as an enhancement to the value of the marital home.
Issues arising with debts and property in a divorce
Whether the parties reach an agreement between themselves through negotiations or leave it to the court to decide, debts must be allocated to one spouse or the other. A problem that might be encountered is that creditors are not parties to or bound by decisions made by the parties or by the courts as to responsibility for debts.
For instance, a decision by the parties in a divorce to have the wife take responsibility for payment of a credit card debt might not prevent the creditor from seeking payment from both parties if the wife fails to pay it. The creditor may rely upon its original agreement with the parties, and if the agreement made them jointly responsible for the debt, the divorce does not change that as between the spouses and the creditor.
An important date to keep in mind with regard to community debts is the date of commencing of the action for dissolution of the marriage. Debts incurred by a spouse after the filing of a petition for dissolution are treated as the debt of that particular spouse.
A.R.S. §25-318 (E) gives the court the authority to place a lien on marital property awarded to one party or on the separate property as security for payment of the following obligations:
- Retained interest of a party in the property
- Community debts a party is ordered to pay
- Child support or spousal support obligations
Another issue that arises in divorce cases concerning community property has to do with misconduct by one of the parties. As a general rule, a party’s misconduct leading to the breakup of the marriage does not play a role in determining how property is divided or whether child support or maintenance is awarded. Misconduct pertaining to assets or income can, however, play a role in how a court handles the property distribution issues in a divorce.
If evidence is produced proving dissipation of assets or waste by one of the parties, a court may take it into consideration when distributing assets. For example, if one of the parties is proven to have purposely squandered away community income and assets, the court can order that party to reimburse the other or distribute assets between the parties to allow for the dissipation of assets by the one spouse.
Separate property or community property: Pensions
Pensions and retirement plans can present unique issues under Arizona divorce laws, particularly in situations in which the plans existed before the marriage. Contributions made to a retirement or pension plan prior to a marriage are generally treated as separate property, but contributions made during the marriage are part of the community property and subject to being divided between the parties in the divorce.
A common problem encountered by divorcing parties when dealing with pensions and retirement plans is the difficulty in dividing them. You cannot simply contact the plan administrator and ask them to divide the pension. A Qualified Domestic Relations Order is needed to divide a retirement plan to reflect the distribution of community property in the divorce.
Less complicated than a QDRO could be electing to distribute other assets to make up for the benefit one spouse is receiving by retaining the full amount of the pension. For instance, if the community property portion of a pension is valued at $50,000, instead of preparing a QDRO to divide it equally to each spouse, the spouse with the pension retains it and gives up his or her $25,000 interest in another community property asset.
Temporary orders while a divorce is pending
Custody, support or other issues might require immediate attention and cannot wait until the final decree at the conclusion of the case. Either party may request interim relief by filing an application for temporary orders with the court. Common requests include:
- Support pending the outcome of the divorce action
- Award of legal fees to allow a party to pursue or defend the divorce action
- Temporary custody or parenting time
- Preliminary injunction
Preliminary injunctions prevent a party from engaging in certain conduct, such as transferring property, liquidating bank accounts, removing children from the jurisdiction of the court or other conduct affecting the rights of the parties to the action. Violation of a preliminary injunction could result in sanctions against the violating party.
If there is a risk or threat of physical violence, a court may issue an order of protection. Orders of protection are designed to prevent harm to a person by ordering the offending individual to stay away from the other party or to refrain from certain conduct. Violation of the order of protection is a contempt of court and could result in the offender’s arrest.
A final decree of dissolution
Once all the issues associated with the termination of a marriage are resolved, the court issues a decree of dissolution of marriage incorporating all of the judge’s findings and agreements reached by the parties. It also contains a provision allowing a spouse to resume the use of any surname previously used (A.R.S. §25-325).
Contact a Divorce Lawyer Today
If you’re planning on getting divorced from your spouse, don’t hesitate to reach out to our law firm for legal counsel. We are very familiar with divorce laws throughout the state and we have helped countless clients through their divorces.
For more information about Arizona divorce laws, or to schedule a meeting with a lawyer who may help guide you through your divorce, contact Hildebrand Law, PC today at (480)305-8300.
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