July 6, 2019 | Published in Divorce
By Logan Matura and Jacqueline Marzocca, law students and legal interns.
Overview of Divorce
In Arizona, before a court can grant your petition for divorce, you need only state one legally acceptable reason (ground) for your request. The only grounds which are recognized for divorce in Arizona are that the marriage is “irretrievably broken” or that there are “irreconcilable differences.” This is considered a no-fault divorce, which simply means that neither spouse needs to assume responsibility for the breakdown of the marriage. It is not necessary to show that someone is “at fault” for the divorce. All that is required for a no-fault divorce is that at least one of the parties wishes to get the divorce.
There are two types of legal divorces in Arizona: contested and uncontested. An uncontested divorce is simply where one spouse does not file a response to the petition for divorce. One possible solution to this is that the court may enter a default judgment, which is a binding judgment in favor of one party based on the failure to act by the other party. Another possible solution is that the two spouses have entered into a Marital Settlement Agreement, which is a contract between the parties concerning all issues. This removes all fighting or contesting from the courtroom. A contested divorce, on the other hand, is one in which one spouse is “contesting” the other spouse’s petition for divorce. By contesting the petition, they will have filed a response with the court. Just because the petition has been contested does not mean that a Marital Settlement Agreement will not be reached. The most likely scenario is that the spouse will respond, and then later, you will reach an agreement. This agreement is usually met after discovery has been concluded. If an agreement is still not reached after discovery, a trial will occur.
A petition for dissolution is the first paperwork that is filed to begin a divorce action. This simply is a petition to the court requesting a divorce. A preliminary injunction will then be filed as well. This is a request to prevent both spouses from selling or giving away any community property, taking your children out of state without the prior written consent of the other spouse, and from harassing or disturbing the peace of one another. Depending on the situation, some other paperwork may be filed at this time too, including a request for a maiden name restoration.
Once all of these documents are filed with the Court, the Court will check to ensure that the Petitioner has residency in order for the court to have jurisdiction. One of the two spouses must live in Arizona for at least 90 days before filing a petition for dissolution.
Service of Process
After a petition for dissolution is filed with the court, the petitioner spouse must have the summons and other required documents and notices served on the respondent spouse. This can be done by the other party signing a waiver of service. Otherwise you will need to use a private process server. After the respondent spouse has been served, he or she must respond to the petition within the required time or the court may eventually grant all relief the petitioner spouse has requested (i.e. a default judgment).
A default judgment occurs when one spouse does not respond to the petition for dissolution within the required amount of time (20 days if the respondent is an Arizona resident, 30 days if the respondent is an in-state resident). Once the time limit has run out and no response has been filed, the petitioner spouse can file for a notice of default with the court, which effectively asks the court to grant everything that was asked for in the petition. Once the notice of default has been filed, respondent spouse has 10 additional days to respond. If they do not respond, the judge may enter a final judgment in the form of a decree of dissolution. The petitioner must be present in court at the default hearing so that the judge can sign the decree and give the petitioner his or her copy.
Discovery is the process in which each party is allowed to obtain and examine all possible documents and information that may support their claims. In Arizona, both spouses must disclose all legal and factual grounds for their alleged defenses and claims. There are several ways in which such is collected.
Both parties must use a notice of witnesses to disclose the names of all witnesses and exchange any documents that will be used at trial. Interrogatories are questionnaires that each party must answer in writing. Depositions are court ordered interviews that are typically conducted with both attorneys and a court reporter present. Occasionally, one spouse will be present in the room to assist his or her attorney with expanding on any answers that have been given by the other spouse or a witness. A request for admissions is a written list of questions asking for very specific admissions that may save time in the preparation of the case.
Each of these discovery tools is important, as they each help to solidify what the issues are in the case and help the case proceed more rapidly. If a trial is necessary, then all of these discovery tools are important to secure the most favorable result to the parties.
In Arizona, spousal maintenance, which used to be called alimony, is not meant to punish one spouse.The purpose of spousal maintenance is to assist both spouses in maintaining the standard of living enjoyed during the marriage and transitioning from living together as a unit to being two independent people.
A wide range of factors are considered under Arizona law when determining if spousal maintenance should be awarded to either spouse. These factors include, but are certainly not limited to:
- Length of the marriage
- Standard of living during the marriage
- Both spouses’ earning capacities
- The ability off the spouse seeking maintenance to independently meet their needs
- Whether one spouse contributed to the educational opportunities of the other spouse
- The ages of each spouse
- The physical and emotional condition of each spouse
Arizona is a community property state. What this means is that separate property, which is property acquired prior to the marriage, is retained by the owner of the property. Additionally, inheritance and separate gifts are also generally considered separate property. All property and debt acquired during the marriage are considered to be community property. This includes material property, as well as intangible property such as pensions, benefits, stock plans, frequent flier miles, publishing rights, patents, copyrights, and more. Marital misconduct is irrelevant when dividing up the community property, as well as the fact that only one spouse may have had a job during the marriage.
When dividing property, the court may take into account any wasteful spending of community property assets, destruction of assets, and concealment or fraudulent transfers of community property. The court may also look at other potential issues, such as the length of the marriage, the amount of property available for division, the financial requirements of each parties based on health, age, education level, and ability to work, etc. Under certain limited circumstances, the judge can order repayment of separate property that was used to improve community property assets.
Marital Settlement Agreement
If both parties agree to settle prior to going to trial, they can file a marital settlement agreement with the court. This marital settlement agreement serves as a contract between the parties in regard to all issues. This document is usually titled a “Stipulation to File Consent Decree,” and must be signed by both parties, filed with the court, and then reviewed, granted, and signed by the judge. The court will then generally adopt all of the terms set forth in the agreement, granted that there are no major issues.
If a settlement cannot be made between the two parties, then the lawyers for both parties will file a document with the court to have the case set for trial. Cases generally take only a day or two at trial, but may potentially be more in complex cases.
At trial, the judge will hear all of the evidence and then issue a final judgment in the form of a decree of dissolution. Each side has the burden of proving that their claims are justified by a preponderance of the evidence. Preponderance of the evidence simply means that a fact is more likely than not (at least 51%) to be true. At the conclusion of the trial, the judge will normally take the case under advisement and issue a written decision at a later date. Generally, the judge takes only about a week or two to issue a decision; however, they have up to 100 days to do so.
Final Judgment and Decree of Dissolution
Once the judge has reviewed all of the evidence presented, he or she will submit a final judgment in the form of a decree of dissolution. A decree of dissolution is the document that will restore you and your former spouse’s status to unmarried persons. This document will also address issues such as child custody, property division, and anything else that may be relevant to the termination of the marriage.
Mediation may be an option for less complicated cases. The mediation process typically begins with the two spouses meeting with a neutral third party to identify the potential issues. From there, the mediator facilitates settlement discussions between the parties and provides reasonable solutions to resolve any disputes. Many people who mediate their divorce will settle all or most of their issues, which significantly legal fees that are incurred in litigation. Any agreement made between the parties will be put into a written settlement agreement and signed by both parties. This settlement agreement is binding.
Divorce with Minor Children Overview
When entering into a dissolution of marriage proceeding, the parties will need to agree on decisions regarding minor children. Such decisions include when each party will receive parenting time, who will be the legal decision-maker for the children, and how much child support will be owed. When making these decisions during a dissolution of marriage proceeding, both Mother and Father must attend a mandatory parent education program. The program is designed to instruct parents on the impact of their divorce on themselves and their children. In 2013, the Arizona Legislature amended the requirements. The minimum requirements for instruction in parenting education programs, as laid out in the Arizona Code of Judicial Administration § 3-202, include: “(1) the emotional, psychological, financial, physical and other short-term and long-term effects of divorce on adults and children; (2) options available as alternatives to divorce; (3) resources available to improve or strengthen marriage; (4) the legal process of divorce and options available for mediation; and (5) resources available after divorce.”
Decision-Making for the Children
In a divorce, the parties must agree on the topic of legal decision-making for the child(ren). Many may know legal decision-making as “custody of the child.” However, Arizona has updated its terminology to remove the possessory connotation of the word “custody.” Legal decision-making encompasses the same aspects of custody: parenting time and legal-decision making.
Legal decision-making is defined as “the legal right and responsibility to make all non-emergency legal decisions for a child, including those regarding education, health care, religious training and personal care decisions. For the purpose of interpreting or applying any international treaty, federal law, a uniform code or the statutes of other jurisdictions of the United States, legal decision-making means legal custody.” A.R.S. § 25-401(3). Sole legal decision-making means “one parent has the legal right and responsibility to make major decisions for the child.” A.R.S. § 25-401(6). Joint legal decision-making means “both parents share decision-making and neither parent’s rights or responsibilities are superior except with respect to specified decisions as set forth by the court or the parents in the final judgment or order.” A.R.S. § 25-401(2).
If the parties cannot agree on a suitable agreement for a parenting plan and decision-making power, the court will hear both parties and make a decision. While coming to the decision, the court will pay special attention to factors that will result in the best interest of the child. Factors include: “(1) the past, present and potential future relationship between the parent and the child; (2) the interaction and interrelationship of the child with the child’s parents or parents, the child’s siblings and any other person who may significantly affect the child’s best interest; (3) the child’s adjustment to home, school, and community; (4) if the child is of suitable age and maturity, the wishes of the child as to legal decision-making and parenting time; (5) the mental and physical health of all individuals involved; (6) which parent is more likely to allow the child frequent, meaningful and continuing contact with the other parent (does not apply if the court determines that a parent is acting in good faith to protect the child from witnessing an act of domestic violence or being a victim of domestic violence or child abuse); (7) whether one parent intentionally misled the court to cause an unnecessary delay, to increase the cost of litigation or to persuade the court to give a legal decision-making or a parenting time preference to that parent; (8) whether there has been domestic violence or child abuse pursuant to section 25-403.03; (9) the nature and extent of coercion or duress used by a parent in obtaining an agreement regarding legal decision-making or parent time; (10) whether a parent has complied with capter 3, article 5 of this title; (11) whether either parent was convicted of an act of false reporting of child abuse or neglect under section 13-2907.02.” A.R.S. § 25-403.
The Arizona Revised Statutes define parenting time as “the schedule of time during which each parent has access to a child at specified times. Each parent during their scheduled parenting time is responsible for providing the child with food, clothing, and shelter and may make routine decisions concerning the child’s care.” A.R.S. § 25-401. During a dissolution of marriage proceeding, the parties will attempt to negotiate a parenting plan outlining the time they will each spend with the child(ren), usually including an access schedule, discuss holiday and vacation terms, discuss the communication procedures between the parents regarding the child(ren), and hammer out any other details that are vital to the parties regarding the care of the child(ren). A.R.S. § 25-401. The court will then issue the parenting plan in the completed order. Parenting time may be modified later through a petition to the court.
Child Support Overview
The Arizona Child Support Guidelines set out a procedure and factors to calculate how much a party may owe for child support. There are a variety of factors that weigh into the calculation, such as the income of each party, the amount of parenting time of each party, which party pays for health and dental care, etc. Many court websites have a child support calculators in which a party may insert the various factors and receive a rough estimate of what they will give or receive in child support. If circumstances change, a party may petition a family court to modify the amount of child support. Further, if one party is not paying child support, a party may file a petition to enforce the child support with the family court.
Relocation of the Child
Once a custody agreement is in place for the children, relocation to a different state or a location more than 100 miles away will require permission from the court. A written notice must that the children will be moving must be provided within 60 days of the move. Along with the notice to the other party, the moving party must demonstrate that the move is in the best interest of the children. The court will then determine if the move is in the best interest of the child using factors listed in A.R.S. § 25-408(I). Some of the factors include how the move will impact the child emotionally, the motives of the moving party, and the effect moving may have on the child’s stability. A.R.S. § 25-408(I). The judge will then decide if the move is in the best interest of the child and make his or her decision.
By Logan Matura and Jacqueline Marzocca, law students and legal interns.