Arizona Divorce 101 - How does it all work?
One of the questions most often asked when someone walks into our offices to pursue a divorce is; "How does this all ACTUALLY work?". The more we are asked this question, the more we realize that there is a lack of plain information for the average person wanting to know about the basics of divorce in Arizona.
So we will attempt to put it all together here, in a nutshell, so that someone who wants to understand the basics, the ideal timeline, the requirements, can walk away better informed.
Here at RPM Law we do not want to have clients hire us who in fact do not need our services. We regularly send people away with the "self-service" forms the court provides (they charge $10, we do it for free) if the matter they are facing is straight-forward and can be handled without the help of an attorney. We do not subscribe to the "every case would be better if a lawyer was involved" theory, rather, we prefer to maintain our credibility and integrity through every action, even if it means we do not get hired.
This brief outline is not meant to substitute for legal guidance and is not legal advice. It is meant to give a general road-map of the process. Depending on the complexity of your situation a divorce can be finalized in as little as 61 days in Arizona, or can stretch on for over a year in the worst cases.
In that vein, please see this fairly straight-forward explanation of the divorce process in Arizona. If you have questions, or think it may be too much for you to handle on your own, call us for a FREE consultation at (520)740-1802 today.
The Basic Principles:
· Arizona is a purely no-fault divorce state, which means that neither spouse has to prove blame or responsibility to end the marriage. The only question that must be answered is whether the marriage is "irretrievably broken", which simply means that there is no chance that the spouses want to continue the marriage. A.R.S. §25-312 (Unless it is a covenant marriage)
· Arizona is a community property state. This means in short, each party is "owner" of half of everything acquired during the marriage. Real property, retirements, debt, etc... A.R.S. §25-211(There are some exceptions).
· When it comes to the kids; The Court is supposed to design a plan "that maximizes their respective parenting time. The court shall not prefer a parent's proposed plan because of the parent's or child's gender. A.R.S. §25-403.02
The Minimum Requirements:
· One party must have lived in the County they file in for the previous 90 days consecutively.
· If there are children in common (the parties are the biological parents) the children must have resided in the County of filing for at-least 6 months prior to the date you file.
· Because Arizona is a "no-fault" state all that must be "proven" is that the marriage is "irretrievably broken", which simply means that there is no chance that the spouses want to continue the marriage.
The First Steps:
· In order to begin a divorce in the state of Arizona, one of the spouses (the Petitioner) must file a Petition with the Clerk of the Superior Court in the county of residence of either spouse (filing fees vary from county to county). The petition asks the court to legally end the marriage and to issue the orders that are necessary to deal with the spouses' property, debts, child support, custody and alimony. Generally, the court will not give a spouse anything that isn't requested in the petition.
When the petitioner files the petition he or she must also file:
· A Notice of Right to Convert Health Insurance
· Preliminary Injunction
· Notice to Creditors
· Domestic Relations or Family Court Cover Sheet
If there are children involved the Petitioner must also file:
· Affidavit Regarding Minor Children
· Order and Notice Regarding the Parent Information Program
The Petitioner must create three copies of the aforementioned forms.
- The original must go(be filed) to the Clerk of the Superior Court
- The next to his or her spouse
- The final copies are for the Petitioner's records.
Notice to the Other Party:
The Constitution guarantees that in both the 5th and 14th Amendments that a person be given notice before a law suit can be filed against them. This applies in divorce actions: In order to let your spouse know that you are filing for divorce, copies of the above forms (the summons, the petition etc.) must be served within 120 days of the filing of the petition.
The other party is not "on notice" and thus the divorce action isn't really "live" until one of the accepted form of service has been completed and the notice of such is filed with the Clerk of the Court.
To Respond or Not to Respond:
This is where the road begins to fork; The Respondent has 20 days to respond if they live in the same state the petition was filed in and 30 days if they live out of state.
If the Respondent does nothing, you can, and should, file for a default. Provided the Respondent has been appropriately served, and they do not respond, your petition will likely be granted in its entirety and the divorce will be done. This is subject to some specific rules and requirements (like most of the stuff in this process).
However if a response is filed, the case will move forward to the next steps.
The 60 Day Waiting Period
In the state of Arizona, a divorce cannot be granted until at least 60 days have passed since the petitioner served his or her spouse. Once this waiting period is over, if both couples agree on the terms of the divorce, or if proceeding by default, then the divorce can be finalized rather quickly. However, if the couple cannot agree on the terms, than the case will go to court and a judge will settle the terms.
Curveballs and Detours
TEMPORARY ORDERS: Because some cases require significant research, negotiation or, in the worst cases full-blown trials, the court can establish "rules" for the in-between times. This is done at a "mini-trial" where the court hears evidence and argument and then decides things like: Parenting Time, Child Support, Spousal Maintenance (alimony), who stays in the home, who pays the bills, etc. These rules last until a final agreement, order, or decree is in place.
CHILD INTERVIEWS: In some cases it is appropriate to ask the Court to have the child(ren) interviewed to ascertain how they feel about things. Please note that the Court is not obligated to allow this, and generally decides based on the age and maturity of the specific child.
In any case where there are minor children involved the Courts generally require that the parties attend mediation to try and work out an agreement on issues specific to legal decision making and parenting time ONLY. No agreements are required, but as a general rule the case will go much smoother in the long run if the parties can agree on at least a few things during this process. Mediation is done without the lawyers or judge. A trained mediator works with the parties in a neutral environment to maximize the potential for agreements to be made.
DISCLOSURE & DISCOVERY
The rules that govern the divorce process outline the very specific things that each party can ask the other party to provide in the way of information and documents. Many of these things are mandatory to provide, such as a financial affidavit, and depending on the issues involved, this process can be very complex and significantly stretch out the length of the divorce.
SETTING FOR TRIAL
When all the disclosure/discovery has been completed, or is very close to being completed, the case can be set for a trial. When this happens the Court will set a date for the trial and some other specific events. These are:
This is a meeting between the parties, their lawyers, and a neutral 3rd party (usually a Judge Pro Temp) where the issues are worked on and any agreements are put on the record to narrow the scope of what will be argued at trial.
FINAL PRE-TRIAL CONFERENCE
This is a short hearing in front of the Judge where the issues for trial are nailed down and any last minute administrative details are worked out.
This is largely self-explanatory but trials can last anywhere from an hour to several days depending on the complexity, amount of issues, evidence to be presented, witnesses, etc.
This is the piece of paper (several pages actually) that finally outlines the terms, conditions, and rules of the divorce moving forward. The decree details property division, child support, spousal support, parenting time, legal-decision making, returning maiden names, terms for future enforcement or changes, and any other final or binding orders.