Your divorce may be the single most traumatic event you will go through in your life. It doesn’t have to be. This document discusses some of the areas that may be of concern to you in the divorce process and may resolve some of your uncertainties. The things covered in this document are the most frequently asked questions I’ve encountered over the years.
In this document, I refer to your “divorce,” although the term in Arizona is actually “dissolution” or “dissolution of marriage.” All these words mean the same thing. In addition, many of the documents, procedures and services apply only to Maricopa County Family Court proceedings. If you are involved in a Family Court case in another county, you should check with your County to see if a particular procedure or document applies to you.
How Do I Hire a Lawyer?
Grounds, Legal Separation, Annulment, Residence Requirements, Starting the Proceedings, Actual Separation, Domestic Violence, Who Should File?, Conciliation Services, Waiting Period, Service or Acceptance of Service?, End of the Community
Custody (“legal decision-making”), Parent Information Class, Visitation (“parenting time”), Child Support, Affidavit of Financial Information Form, Children & the Divorce
Property Division, Debts, Temporary Relief, Uncontested Divorce, Spousal Maintenance (Alimony)
One Lawyer for Both of You?, Reconciliation, Change of Wife’s Name, Final Divorce, Remarriage, Your Responsibilities to your Attorney, How Can We Settle This?
Getting Started & Filing
The only grounds for a divorce in Arizona is that the marriage is “irretrievably broken” with “no reasonable prospect for reconciliation.” This is a “no-fault” state, which means that it is not necessary (and usually not even allowed) to say which person caused or wants the divorce, which person might have had an affair, or which person committed “mental cruelty.”
Although there may be instances where a legal separation is possible, it is not generally used and is not a service I can offer. If you are not ready for a divorce, the best option is probably counseling (either individual or joint).
A legal annulment is different than an annulment granted by a Catholic or other church. In Arizona, the only grounds for a legal annulment are that the marriage is null and void due to some impediment that prevented a valid marriage from taking place. Generally, the grounds for annulment are difficult to show except in very specific, narrow circumstances.
The residency requirement is that at least one of the parties (not necessarily both) have lived in the State of Arizona for at least ninety (90) days prior to filing the divorce action. If only one of the parties lives in Arizona, and the other party has not lived here at all, the Court will be limited in what property it can divide and what orders it can enter against the non-resident spouse, but the Arizona Court can dissolve the marriage for the person who lives here.
Starting the Proceedings
Divorce proceedings are started with the filing of a “Petition for Dissolution of Marriage” by one party with the Court. This original Petition is always accompanied by other documents required by the Court, including a “Preliminary Injunction” which orders both parties not to do certain things with the assets and children of the parties.
An actual physical separation is not a requirement to obtain an Arizona divorce. The parties may continue to reside in the same home when the divorce is filed, while the divorce action proceeds, and even after it is final if they choose.
If your spouse has been physically abusive to you, you can obtain an Order of Protection from the Court before or after filing for a divorce. You do not need to also file a divorce action to obtain an Order of Protection, although they can be filed at the same time.
Who Should File?
Currently, there is no legal significance as to whether the husband or the wife should file the Petition. Pride is another matter. If possible, you can discuss the question of “who files” with your spouse ahead of time to avoid a “race to the courthouse” and a duplication of efforts and court costs.
Arizona offers Conciliation Services free of charge through the Court system. This process can be used by either party for reconciliation attempts. If reconciliation is not an option, Conciliation Court will also help you and your spouse mediate child custody and parenting time. Mediation is an attempt to get the parties to agree to a schedule and custody plan. Conciliation services do not discuss or mediate support or property issues, although private mediation services are available for those issues at a cost to you.
No divorce can be granted until at least 60 days have passed since your spouse is served with the Petition. This is a minimum period of time. My experience shows that most uncontested matters are actually completed three to four months after service. Contested matters can take as long as 12-18 months or longer, depending on the court’s calendar. During the waiting period, we will try to work out the details of custody, visitation, support and property division.
Service or Acceptance of Service?
After the Petition is filed, your spouse must receive a copy of it through the proper means. One way is to have a process server or deputy sheriff hand-deliver (serve) a copy on your spouse. Sometimes this brings on embarrassment and hard feelings, particularly if service is done at work or in front of the children. An alternative is to have your spouse sign an “Acceptance of Service” stating that he/she received a copy of the paperwork. My policy is to attempt the Acceptance of Service process first. Don’t worry if your spouse will not accept the papers voluntarily. It is usually no trick to obtain service.
End of the Community
On the date you are served with divorce papers (or the date your spouse is served or accepts service), the community legally ends. Any property acquired after the date of service is the separate property of the who acquires the property. The definition of property includes earnings and salary, as well as property actually purchased by one party.
Similarly, the community for purposes of “debts” ends upon the service of the divorce papers. After the service date, debts incurred by only one party may be considered by the Court to be the separate debt of the person who created the debt.
Custody is now “Legal Decision-Making”, effective with the legislative changes made in 2012 which become effective January 1, 2013.
There is no legal presumption in Arizona favoring either parent for custody of the children. There is no legal presumption in favor of joint decision-making or sole decision-making to only one parent. Each case is determined on its own merits. While there used to be two types of joint custody, “joint legal” and “joint physical” custody, those terms were changed by the Arizona legislature in 2012 (changes to become effective 1-1-2013). Joint decision-making means that the parents have equal say in major decisions for the children. Those major decisions are defined as “all nonemergency legal decisions for a child, including education, health care, religious training and personal care decisions.” Parenting time (not “visitation”) is the amount of time that each parent has residential custody of the children. Parenting time can be relatively equal (such as an alternating weeks’ schedule, or a schedule known as “5-2-2-5″, or one parent may have the majority of parenting time subject to certain days or weekends of parenting time which are assigned to the other parent. Whether the parents have joint decision-making or one parent has sole decision-making, in general the parents are expected to communicate and confer regarding major decisions about the children, such as education, child care, medical and religious decisions.
There will no longer be designations of sole or joint custody for orders entered after January 1, 2013. Instead, orders will hopefully more clearly spell out the rights of each parent to make decisions about the children as well as specifics about when the children will be with each parent.
Disagreements over decision-making and parenting time are guaranteed to put you in the middle of a bitterly contested and expensive divorce. For this reason, the Court requires both parents to attend mediation at Court, without attorneys, to discuss the settlement of all decision-making and parenting time disagreements before those issues can be heard by a judge.
Parent Information Class
In any divorce involving minor children, even if you and your spouse agree on parenting time and decision-making, both parents must attend a Parent Information Class. A list of court-approved classes, including locations and telephone numbers, should be provided to you at the time you file for divorce. You may choose to attend any class you wish, but this requirement should be met within sixty (60) days after the dissolution is filed. You receive a certificate of attendance at the class which should be given to your attorney so it can be filed with the Court.
Visitation is now “Parenting Time”
If you and your spouse can agree to the details of visitation, the court will usually approve the plan you have worked out. Visitation must state specific schedules including days and times, and cannot simply be “reasonable,” “unlimited” or the like. Visitation in Arizona is called “parenting time”.
Typical parenting time plans are offered by the Supreme Court of Arizona.
Child Support Guidelines have been prepared for the State of Arizona which apportion child support based on the gross incomes of both parents. Typically, the debts, house payments and car payments of each parent are NOT considered in awarding child support, although support paid for other children not of this marriage is considered.
Arizona’s current Child Support Guidelines can be found through a link in the Resources Section.
Affidavit of Financial Information Form
Your attorney, or the Court, may ask you to complete a form called an Affidavit of Financial Information to help determine what the child support award might be. This document is also required by the Court before you appear at any hearings involving child support or spousal maintenance. It can be obtained through the Resources & Links Section or from the Maricopa County Superior Court Self-Service Center.
Children & the Divorce
Divorce proceedings are very emotional and often one (or both) parties will be seeking revenge. Sometimes one parent will use the children to try and hurt the other parent. Try to prepare your children for the divorce without poisoning their minds about the other parent. Most often, the parent who “talks down” the other parent is the one the children will resent most. Try to cooperate with your spouse where the children are concerned, if at all possible.
I can’t emphasize how important it is to try to keep the children insulated from the nastiness of a divorce and from the divorce process in general. Obtain professional advice about how to handle the situation with your children, if necessary. I can help you find suitable counselors for your children, if you think they need help coping with the process, and there are numerous books and articles published to help you help your children with this very difficult time.
The Parent Information Class which is required in all dissolution proceedings involving children is a good source of information about how the divorce process will affect your children, and about things you can do to help them.
Parenting Coordination. Parenting coordination involves the court appointment of a person (either a mental health professional or an attorney) to hear from the parties if they have disputes, disagreements, or different interpretions of their parenting plan. I’ve written several articles about parenting coordination on my blog. In general, the parenting coordinator finds out what issues or disputes the parties are having about their parenting plan, makes sure the parties communicate and exchange information about the dispute (including what each parent thinks should be done about the dispute), and tries to resolve the dispute without the necessity of going to court. The parenting coordinator first uses a mediation-like function to see if the parties can agree on their own. If the parties can’t agree, an Arizona parenting coordinator makes a recommendation to the court about the dispute. A party may object to the recommendation and ask their assigned judge to do something differently.
Property & Money
There is no fixed way to determine how you or the Court should decide how to divide your property, although our law says the division should be “equitable” and equitable almost always means equal. Other factors include whether or not property is community or sole and separate. If you and your spouse agree on this division, the Court will usually approve your written agreement. If you cannot agree, the Court will divide your property and debts for you after a trial.
Personal property, furniture, and “stuff”. For a good general article on dividing these items, read this. It’s true that judges will not go through and divide personal property item-by-item, and it’s generally also true that you can’t tell your spouse to keep all the used furniture and pay you half the value of the furniture. In general, you just need to divide the property in-kind, because used furniture has such a minimal value.
You and your spouse probably have some (or many) debts that you’ve acquired together, during the marriage. Part of our negotiations for the final property division will include a discussion on how to divide those community debts. If you or your spouse still have debts which were incurred before you were married, those debts will generally be the separate debt of the spouse who created them.
The way you and your spouse choose to divide your joint debts is NOT binding on the person or place you owe the debt to. If ABC Bank loaned you and your spouse money while you were married, the Bank has the right to try and collect from either or both of you, no matter what your divorce decree says who is to pay that debt.
Use of Experts
In some cases, outside experts need to be employed to determine specific issues. One example is the use of a psychologist to perform a “custody study” or family study in a custody dispute. Another case is the use of a CPA or business appraiser to determine the value of a family-owned business, a professional practice, or shares of a larger business. Real estate appraisers are often employed where the value of real estate is not agreed on by the parties.
If you and your spouse have not agreed to the children’s custody (decision-making) and parenting time on a temporary basis (until the divorce is final), or have not agreed who will continue to make payments for the family’s basic needs and payment of debts, you may need temporary orders relief. Temporary orders usually stay in effect while the divorce case is ongoing. A short hearing is held in front of a Judge to determine what orders are necessary.
Even if you and your spouse both agree you want a divorce, the divorce is only “uncontested” if you agree to every provision concerning child decision-making, parenting time, child support, spousal maintenance, and the division of your property and debts. If any of these matters are disputed and cannot be settled through mediation, settlement conferences, or negotiations with the attorneys, your divorce is NOT uncontested and a trial may be necessary. You can also agree to different processes to have your disputes resolved, such as Arbitration or the appointment of a Special Master to make those decisions. (See “How Can We Settle This?” below)
Spousal Maintenance (Alimony)
In Arizona, either spouse may be awarded spousal maintenance (alimony) for a period following the divorce if that spouse meets certain criteria. The criteria includes the spouse’s earning history, whether or not the spouse stays home with an infant, and the length of the marriage. All the criteria that the court must consider for a spousal maintenance award can be found at Arizona Revised Statutes 25-319. If the spouse qualifies for some support, the amount and duration of the payments is determined by examination of numerous other criteria. Lifetime spousal maintenance is rare in Arizona but is still available for long-term marriages. There are no numerical guidelines for spousal maintenance as each case is examined on its own circumstances. That fact can often make spousal support a difficult issue to settle short of a trial. If spousal maintenance is paid, the recipient must report it as income for tax purposes and the paying party can deduct it from taxable income.
The Affidavit of Financial Information form mentioned above is helpful in determining if maintenance is necessary and how much is needed.
Court Costs & Other Costs
The Court system will charge a filing fee when a Petition is filed, and another filing fee for the Respondent to file a Response. Documents which must be served on your spouse, if he/she will not accept service, will cause additional charges to be paid to a process server.
If depositions, Subpoenas and investigations are necessary, those costs will run substantially higher, as there are court costs involved with these matters, in addition to the fees which an attorney will charge. Custody and other experts will need to be retained separately from your attorneys’ fees.
The exact fee for your divorce varies widely with the services you require from an attorney. A basic uncontested divorce which includes the preparation and filing of the Petition, consultation between you and the attorney, service of the documents on your spouse, obtaining information from you, and the preparation of a final Decree or Property Settlement Agreement and Custody Agreement which you and your spouse have agreed on can cost a few hundred to a few thousand dollars, plus the Court costs listed above.
If there are any disputes on any issues, the fee will go much higher, as additional consultations between you and your attorney, meetings with your spouse’s attorney (if any), and court appearances will be necessary. The more contentious things are between you and your spouse, the more expensive the case will be and the longer it will take to finalize.
More work is also required where issues are complex, where experts must be consulted, and where depositions and discovery are extensive. If a temporary orders hearing as described above is necessary, that proceeding alone will add substantially to the costs of the divorce.
Because the issue of attorneys’ fees and costs is so important and can vary so much, please carefully read the Retainer and Fee Agreement which should be provided to you by any attorney you consult with about a divorce. That written Agreement should spell out the terms of you agreement with this attorney regarding fees and payments. You should be familiar with the document and understand it before you sign anything to retain an attorney.
One Lawyer for Both of You?
I do not ever represent both parties to a divorce action, and don’t know any attorneys who will. If your spouse chooses not to retain his/her own attorney, your attorney will deal with your spouse directly and try to settle all issues, but must make it clear at all times that he or she represents only you and not your spouse. If your spouse has legal questions, your attorney cannot ethically answer them, and should refer your spouse to the Bar for referrals to obtain his or her own attorney.
Your and your spouse may decide after the action is filed that you want to “try again.” Most Family Law attorneys will encourage legitimate attempts to reconcile if desired by both parties.
Change of Wife’s Name
The Wife’s former name may be restored to her, at her option, in the final Decree of Dissolution. If the Wife does not change her name at this time but waits until later, a separate court proceeding and costs are necessary.
Your divorce is final when the Judge signs and files the Decree of Dissolution with the Court Clerk. If you and your spouse have settled everything, this will usually be done on paper, and you will sign all final documents at your attorneys’ office. Your spouse will also sign all documents at his/ her lawyer’s office. Those documents are then submitted to the Court to be entered as a final Decree, which usually takes thirty to sixty days or longer. You will receive your final copies (signed by a judge) when the divorce is final. UNTIL YOU RECEIVE A FINAL DECREE OF DISSOLUTION WITH A JUDGE’S SIGNATURE, YOU SHOULD ASSUME YOU ARE STILL MARRIED.
If your matter is not settled and a trial is required, the divorce will not be final on the day of trial, but could go on for several weeks or months later. After the trial, the Court will need to make rulings on all the disputed matters, and the final documents need to be prepared. Your divorce may not be final for several weeks or months after you go to trial before the Judge.
Once you are assured that your divorce is final, and you have seen the final Decree signed by a Judge, you are free to remarry. There is no waiting period after the Decree is signed. If you have any doubts about whether your divorce is final, ASK.
Your Responsibilities to your Attorney
I expect a client to be cooperative and truthful in communications with me. If a client is not, I cannot continue to represent that person. I also expect a client to handle financial commitments to me in a responsible and businesslike manner. I do not “carry” accounts receivable or liabilities during a divorce action, even though I realize it is one of the most difficult emotional and financial times of each client’s life. Financial institutions, credit cards, friends and family members are where the client must turn if he cannot continue to maintain the financial commitment on his own.
Naturally, a client should always keep me informed of changes in address, telephone numbers, employment, and e-mail addresses.
How Can We Settle This?
You don’t have to go to court to get everything settled and resolved in your case. Most people manage to settle custody, parenting time, support and property and debt division issues without going in front of a judge. Even if your case seems hostile and difficult, it can be settled. Your lawyer may talk to you about ADR, which is Alternative Dispute Resolution. ADR includes mediation, but also includes things like hiring a Special Master. A Special Master is like your own private judge, who meets with the parties and their attorneys in a less formal setting than a courtroom, hears the issues, and makes a decision. The upside is that you have more of an opportunity to present your case, more input about scheduling your hearings or meeting, more privacy in the proceedings (because they are not held in open court). Because you choose your Special Master, you can choose someone with special expertise about your issues. The downside is that you have to pay the Special Master. You and your attorney can discuss and decide if a Special Master offers you a good opportunity for your case.
Mediation is an excellent opportunity to settle the outstanding issues, with the help of a skilled mediator along with your own lawyer. Mediation can also be held without lawyers, if the clients prefer. In many mediations, the parties stay in different rooms, with the mediator moving back and forth between rooms with settlement proposals and ideas. The separate-room mediation is called “caucusing”, and it is preferred by many people who don’t feel comfortable spending a stress-filled day with their ex-spouse in one room.
What is a Covenant Marriage and do I have one?
Starting in August, 1998, people getting married had the option of entering into a covenant Marriage. (If you were married prior to August, 1998, you do NOT have a covenant marriage.) To enter into a covenant marriage, premarital counseling is required, and the parties sign a special declaration declaring that they have chosen a covenant marriage. When a covenant marriage is chosen, a divorce may be granted only after certain conditions are met. These conditions are not generally required in order to get a divorce from a non-covenant marriage. Those conditions include:
- one party committing adultery one party being convicted of a felony physical or sexual abuse by one spouse against the other, or against a child of the parties abandonment of the home by one spouse for at least one year separation of the parties for at least two years regular abuse of drugs or alcohol by one spouse
- or that both parties agree to the divorce
For more information about a covenant marriage, go to http://supreme.state.az.us/dr/Pdf/covenant.pdf
Well-meaning (and not so well-meaning) friends, work associates and family will offer advice about a divorce case. In many instances, the advice is not accurate or does not apply to a particular situation. The facts surrounding a marriage and a divorce are unique, and trying to compare one divorce to another is as useless as trying to compare marriages.
Read books on the subject of divorce, whether or not children are involved. Try to keep the lines of communication with your spouse open, but do not discuss specifics of your needs or wants with your spouse if you are both represented by attorneys. If your spouse insists on talking with you about those matters, listen to everything he/she has to say but do not argue, agree or offer substantive input.
Other Sources & Book Recommendations
Please see my Resources Section for some recommended reading and other sources of information.