Understanding the Divorce Process
Divorce is the legal process of terminating a marriage, ending the marital rights and responsibilities between the parties involved. Terminating the marriage is often the easiest part of the divorce process, but there are several other issues that may need to be resolved, including:
- Spousal Maintenance (Alimony): This is the financial support that one spouse may be required to pay to the other spouse after a divorce. It is intended to help the lower-earning spouse maintain a reasonable standard of living and become financially self-sufficient.
- Spousal Support: Similar to alimony, spousal support refers to the financial assistance provided by one spouse to another during or after the divorce proceedings.
- Child Support: The amount one parent is obligated to pay to the other parent for the care and well-being of their children. This includes covering expenses such as food, clothing, healthcare, education, and other necessities.
- Child Custody Legal arrangements about where the child will live and who they will spend time with.
- Legal Decision-Making Authority: This refers to the authority granted to one or both parents to make important decisions on behalf of their child, such as those related to education, healthcare, and religious upbringing.
A Parenting Plan is a written document outlining the agreement made between both parents regarding child custody, parenting time, legal decision-making authority, and other child-related matters. This plan serves as a roadmap to help both parents navigate co-parenting and ensure that the child’s best interests are prioritized throughout the process. Your parenting plan is created during divorce or separation proceedings and may be modified as needed over time to adapt to changing circumstances.
Arizona Revised Statute 25-312 outlines the requirements for a couple to be granted a dissolution of marriage (divorce) in the state of Arizona. According to this statute, the following conditions must be met:
- Residency Requirement: At least one of the spouses must have been a resident of Arizona for a minimum of 90 days before filing the petition for dissolution of marriage. This residency requirement also applies to members of the armed forces who have been stationed in Arizona for a minimum of 90 days before filing.
- Grounds for Dissolution: Arizona is a no-fault divorce state, which means that one spouse does not have to prove any specific wrongdoing by the other spouse to be granted a divorce. Instead, the only required ground for dissolution of marriage is the “irretrievable breakdown” of the marital relationship. In other words, the spouses must both agree that the marriage is irreparably broken and there is no chance for reconciliation.
- Covenant Marriage Exception: If the couple has entered into a covenant marriage, the requirements for obtaining a divorce may be different. In a covenant marriage, the spouses must undergo premarital counseling and agree to seek marital counseling if problems arise during the marriage. To dissolve a covenant marriage, the filing spouse must prove specific grounds for divorce, such as adultery, abandonment, abuse, or living separately for a specified period.
- Waiting Period: Arizona law imposes a waiting period of 60 days from the date of service of the petition for dissolution of marriage before a divorce can be granted. This waiting period provides the couple with an opportunity to reconsider their decision and allows time for any necessary mediation or negotiations.
Once these requirements are met, and the court is satisfied that appropriate arrangements are in place for child custody, parenting time, child support, spousal maintenance, and the division of property and debts, the court may grant a decree of dissolution of marriage, effectively ending the marital relationship.
Contested vs. Uncontested Divorce
In a contested divorce, the spouses are unable to agree on one or more key issues related to the divorce, such as child custody, spousal support, or property division. This means that the parties must present their case to a judge in court, who will make a final decision on the issues in dispute. Each spouse may hire their own attorney to represent them in court. The court will make a decision based on the evidence presented.
On the other hand, in an uncontested divorce, the parties file an agreement with the court, and the court will simply review and approve the agreement. Even in an uncontested divorce, the parties should hire an attorney to draft the agreement and ensure all legal requirements are met.
Arizona is a “No-Fault Divorce” State
In Arizona, a spouse seeking a divorce does not have to prove that the other spouse was at fault or did something wrong to cause the end of the marriage. This no-fault divorce approach is intended to streamline the divorce process, making it faster, more efficient, and less contentious.
By removing the need to prove fault, it eliminates the need for costly and time-consuming litigation and enables couples to focus on resolving the practical issues related to the dissolution of their marriage.
However, this does not mean that fault is irrelevant in all divorce cases. In some situations, such as cases of domestic violence, substance abuse, or financial misconduct, fault may still be a relevant factor in determining child custody, spousal maintenance, or the division of assets and debts.
The no-fault divorce law in Arizona provides a less stressful and more straightforward process for those seeking to end their marriage. By eliminating the need to prove fault, couples can focus on the practical matters of the divorce, such as child custody, child support and property division.
Filing the Petition for Dissolution of Marriage
The Petition for Dissolution of Marriage initiates the divorce process and outlines the basic facts of your marriage, such as the date of marriage, the grounds for divorce, and any children involved. You must file the Petition with the family court in the county where you or your spouse lives. Once filed, you must serve a copy of the petition and a summons to your spouse in accordance with Arizona law.
Service Requirements
This is known as the service of process and
Service of process must be completed by someone over the age of 18 who is not involved in the case and can be accomplished in a variety of ways, including:
A) personal service
B) service by mail
C) service by publication(if the other spouse cannot be located.)
The method of service may depend on the circumstances of your case and the location of your spouse.
Once the other spouse has been served, they will have a certain amount of time to respond to the petition, after which the court may enter a default judgment in favor of the petitioner. However, if the other spouse files a response, the divorce process will continue and may involve negotiations and mediation or court hearings to resolve any outstanding issues such as child custody, child support, spousal maintenance, and the division of property.
The 60-Day Waiting Period
In Arizona, a divorce cannot be finalized until a waiting period of 60 days has passed since the service of the Petition for Dissolution of Marriage. This waiting period is required under Arizona Revised Statute 25-329 and is intended to allow couples time to reconsider their decision to divorce and explore the possibility of reconciliation.
During this 60-day waiting period, the couple may continue to negotiate and work out agreements regarding child custody, child support, spousal maintenance, and the division of property and debts. They may also choose to attend counseling or mediation to try and work through their issues and reconcile their marriage.
If the couple is unable to reconcile or agree on the terms of their divorce during this waiting period, they can proceed with the divorce process. Once the 60-day waiting period has expired, the couple can request a default hearing or a final hearing to finalize their divorce.
It’s important to note that the 60-day waiting period is a minimum waiting period and may be extended if there are outstanding issues or if one of the spouses contests the divorce. Additionally, in cases of a covenant marriage, a longer waiting period may be required before a divorce can be granted.
The 60-day waiting period provides an opportunity for couples to take time to consider their decision to divorce and work through any issues that may arise before proceeding with a final divorce decree.
Property Division
In Arizona divorce cases, property division is determined under community property laws, which means that any property acquired during the marriage is generally considered community property and subject to equal division between the spouses.
However, there are some exceptions to the default community property rules. For example, property acquired before the marriage, property received as a gift or inheritance, and property acquired after the filing of the petition may be considered separate property and not subject to equal division.
One important concept to understand in property division is co-mingling. This occurs when separate and community property are mixed together, making it difficult to distinguish one from the other. In these cases, the court may use the “source of funds” rule to determine the percentage of separate and community property that each spouse is entitled to.
In some cases, the court may apply the doctrine of equitable distribution instead of community property laws. Equitable distribution allows for a more flexible and fair distribution of property, taking into account factors such as the parties’ individual financial situations and contributions to the marriage.
A prenuptial agreement can also have a significant impact on property division in a divorce case. If the parties have entered into a valid prenuptial agreement, the terms of the agreement will generally dictate how property is divided, rather than community property laws or equitable distribution.
At Radix Law, our experienced family law attorneys can help you navigate the complex issues surrounding property division in an Arizona divorce case. We can work with you to negotiate a fair and equitable division of property, taking into account your unique circumstances and goals. Contact us or call our Arizona family law office at (602) 606-9300 to schedule an initial consultation.
Military Divorce
Divorces involving members of the military and their spouses are subject to special rules and considerations that may differ from those of a civilian divorce. Here are some of the special rules that pertain to a military divorce in Arizona:
- Residency Requirement: The residency requirement for filing for divorce in Arizona may be waived for active-duty military members and their spouses. This means that they may file for divorce in Arizona even if they do not meet the state’s usual 90-day residency requirement.
- Service of Process: Service of process for a military divorce must comply with the provisions of the Servicemembers Civil Relief Act (SCRA). The SCRA provides special protections for military members during legal proceedings including giving military members adequate notice of the divorce proceedings and appointing an attorney to represent them if they are unable to appear in court due to military service.
- Division of Military Retirement Benefits: The Uniformed Services Former Spouses’ Protection Act (USFSPA) governs the division of military retirement benefits in a divorce. Under this act, a state court may award a portion of the military member’s retirement benefits to their former spouse, provided that certain conditions are met.
- Child Support and Custody: In a military divorce, child support and custody issues may be complicated by frequent moves, deployments, and other factors unique to military life. The court will consider the best interests of the child and may take into account factors such as the military member’s duty assignments and living arrangements.
A military divorce in Arizona may involve special rules and considerations that require the expertise of an experienced family law attorney who understands the unique challenges and circumstances involved in military life.
Order of Protection
In Arizona, an order of protection (also known as a restraining order) may be granted to a victim of domestic violence. Domestic violence is defined as physical harm, threat of physical harm, or emotional abuse inflicted by a current or former spouse, a person with whom the victim has or had a romantic relationship, or a family member.
To obtain an order of protection you must file a petition with the court. The order may include provisions prohibiting the abusive spouse from contacting or coming near the victim or their children, granting temporary custody of children to the victim, or requiring the abusive spouse to attend counseling or anger management programs.
The court will generally grant an order of protection if the petitioner can provide sufficient evidence of domestic violence or abuse, such as police reports, medical records, or witness testimony. The order of protection is typically granted on a temporary basis, and a hearing will be scheduled quickly to determine whether a permanent order of protection should be issued.
In Arizona divorce cases, an order of protection may be necessary if domestic violence or abuse is a factor in the divorce proceedings. The victim spouse may request an order of protection to ensure their safety and the safety of their children during the divorce process. The court will consider any evidence of domestic violence or abuse when making decisions regarding child custody and parenting time.
Divorce vs. Legal Separation
Legal separation allows couples to live apart and separate their finances and assets, but does not terminate the marriage. The court will still need to address many of the same issues as in a divorce, including child custody, child support, spousal maintenance, and the division of property and debts. However, the couple will remain legally married and cannot remarry unless they later divorce.
Some key differences between divorce and legal separation in Arizona include:
- Termination of Marriage: In a divorce, the marriage is terminated, and both spouses are free to remarry. In a legal separation, the marriage is not terminated, and both spouses remain married.
- Division of Property and Debts: In both divorce and legal separation, the court will address the division of property and debts, but the process may be different. In a legal separation, the court may divide the property and debts as part of the separation agreement, but the couple will still be considered married.
- Child Custody and Support: The court will address child custody and support issues in both divorce and legal separation, but the process may be different. In a legal separation, the couple may choose to continue living apart but still share joint legal decision-making authority and parenting time.
