Divorce

Legal Separation

“Legal Separation” can either be temporary or for an unlimited period of time. This is a legal decree which is issued when the Judge determines that there is an irretrievable breakdown of the marriage, or that one spouse desires to live separate and apart from the other spouse. The benefit of the Legal Separation is that it still leaves open the possibility of “Reconciliation”, and it protects both spouses from the others future debts. One spouse files an objection to the Legal Separation, it will then be amended to a “Petition for Dissolution” of the marriage and the “Divorce” process begins. A Legal Separation will also resolve property issues, debt issues, and other concerns. However, the marriage is still intact at the end of the process. The purpose of Legal Separations versus Divorce is normally for religious reasons and to keep alive the hope that one day the marriage may be salvaged.

Dissolution of Marriage

In Arizona, marriages “Dissolve” after the conclusion of a “Dissolution Proceeding”. This used to be formerly known as a “Divorce”. “Irretrievably broken/ irreconcilable differences” is the only grounds which are recognized for “Divorce” in Arizona. It is not necessary to find that somebody is “at fault” for the “Dissolution”. All that is required is that one party wishes to get the Divorce.

An “Uncontested Divorce” is basically one where your spouse does not file a “Response” to the “Petition for Dissolution”. This can either result in a “Default Judgment”, or they may have contacted you and simply entered into a “Consent Decree/Marital Settlement Agreement” without any official fight or “contest” taking place in Court.

A “Contested Divorce” is one in which your spouse is “contesting” your Petition for Dissolution. By “contesting” the Petition, they will have actually filed a Response with the Court. The filing of the Response will not prevent a future Consent Decree/Marital Settlement Agreement from being reached. In fact, the most likely scenario is that they will Respond and then later work out an Agreement between your attorney and theirs. This usually occurs after “Discovery” has been concluded. If a Marital Settlement Agreement is still not reached, it is at this time that a Trial will occur.

Petition for Dissolution

A “Petition for Dissolution” is the first paperwork which is filed to begin a “Divorce” action. Along with the Petition for Dissolution a “Preliminary Injunction” will be filed. In addition, some women also file a request for “Maiden Name Restoration”. An “Order and Notice to Attend Parent Information Program Classes” will also be filed with the Petition. This is an official court order and failure to obey may result in Contempt of Court. What this means is both you and your spouse must complete these classes within 45 days from the Petition being served. Also, these classes must be completed before the Judge will finalize your “Decree of Dissolution”. Our paralegals will provide you with the “Parent Information Program Notice” which includes all information necessary on where to go, costs, how to sign up, and how to get final completion notices sent to the Court.

Once all of these documents are filed with the Court, the Court will check to make sure 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 the filing of a “Petition for Dissolution”. Once the Petition is filed, there is a 60-day waiting period after “Service of Process” on the other spouse before any “Divorce” can become final.

Preliminary Injunction

One of the first papers filed along with the “Petition for Dissolution” is a “ Preliminary Injunction”  The order is the first ruling issued by the Court during the Dissolution proceeding. This prevents you or your spouse from selling or giving away any “Community Property” (i.e. it protects both of you). It also prevents either you or your spouse from taking your children without the prior written consent of the other spouse. Lastly, it prevents either you or your spouse from harassing or disturbing the peace of one another.

Service of Process/Summons

Once a “Petition for Dissolution” is filed with the Court, the “Petitioner” must have the “Summons” and other required documents and notices Served on the “Respondent”. The best way to achieve “Service of Process” is to use a private Process Server. Once your spouse has been Served, they must “Respond” to the Petition within 20 days or the Court may grant all relief you have requested.  If you are the person who has been served by your spouse, you need to contact  a lawyer immediately because your rights are at issue and need to be dealt with immediately!

Default Judgment

A “Default” occurs when a spouse is not “Responding” to the “Petition for Dissolution” within the required amount of time (20 days if your spouse is an Arizona “Resident”; 30 days for an out-of-state Resident). Once the time limit has run and if your spouse has failed to respond, you can then file for a “Notice of Default” with the Court. This has the effect of asking the Court to grant everything that you have asked for in your Petition. Once you have filed the Notice of Default, your spouse has 10 days in which to Respond. If they do not Respond, then your case will be assigned to a Judge to enter a “Final Judgment” in the form of a “Decree of Dissolution”. At this “Default Hearing”, you must be present at Court, otherwise the Judge cannot sign the Decree and give you your copy. This normally takes two to four weeks to occur. If the Judge does grant the Default, then the Defaulted spouse still has the ability to file a Motion and request the Court to Set Aside the Default Judgment in order to allow them to file their Response. If the Judge grants the “Motion to Set Aside the Default”, then the process restarts.

Discovery Process

“Discovery” is the term used to describe the process by which each party is allowed to examine all possible evidence that may support their claims. In Arizona, both spouses must disclose, in writing, all legal and factual grounds for their alleged defenses and claims. In the “Notice of Witnesses” they must disclose the name of all witnesses and exchange any documents that will be used at trial. If all items are not fully disclosed, then they may be precluded from being introduced at trial.

“Interrogatories” are written questions that each party must answer in writing. “Depositions” are Court ordered interviews that are normally conducted with both attorneys present, along with a Court reporter. Sometimes one spouse will be present in the room to assist his/her attorney with expanding on any answers given by the other spouse or witness. A “Request for Admissions” is a written list of questions asking for very specific admissions that will save time in the preparation of the case (i.e. “are you the father of the child”, etc.). Lastly, a “Request for Production of Documents” is a specific request for certain documents that either side believes will be beneficial to their case. The importance of all of these Discovery tools is that they solidify all of the issues (on both sides) and help the case proceed more rapidly to a “Marital Settlement Agreement/Consent Decree”. Obviously, a Settlement Agreement is much more preferable than “Trial”. However, if a Trial is eminent, then all of these Discovery measures are absolutely necessary to secure the most favorable result to the parties. 

Spousal Maintenance (i.e. Alimony)

In the State of Arizona, “Spousal Maintenance” is not designed to be punitive in nature. It’s overall purpose is to assist a spouse in maintaining the standard of living enjoyed during the marriage, and to assist in the transition from living together as a unit to being two independent people. Numerous factors are considered under Arizona law in determining if Spousal Maintenance should be awarded to either spouse. The following is a partial list of reasons for awarding Spousal Maintenance:

  • The ability of the spouse seeking Maintenance to independently meet their needs (either through separate property or other factors)
  • Inability to support oneself through employment
  • Whether one spouse contributed either financially or through time to the educational opportunities of the other spouse
  • Length of the marriage coupled with older age which now precludes the possibility of gaining sufficient employment
  • Length of time it would take for a spouse to acquire sufficient education for proper employment
  • Both spouses future earning capacities
  • Standard of living during the marriage
  • Length of the marriage
  • The ability of the spouse providing the support to maintain their standard of living while paying out spousal maintenance
  • Whether either spouse destroyed, wasted, concealed, or gave away any Community Property
  • The comparative earning abilities of each spouse
  • The ages of the spouses
  • The physical and emotional condition of each spouse
  • Jobs held by either spouse during their marriage
  • The educational/ vocational skills possessed by the spouse seeking Maintenance

Property Division/Community Property

Arizona is a “Community Property” State. “Separate Property” (property brought in prior to the marriage) is retained by the owner of the property.  It is the general proposition that all property and debt acquired during the marriage (including wedding gifts) through the joint resources or funds of the spouses, are considered to be “Community Property”. This includes property acquired by either spouse outside of the State of Arizona if that property would have been Community Property if acquired within the State of Arizona while married. Marital misconduct or “Fault” is irrelevant when dividing up the property. In addition, the fact that only one spouse may have held a job during the marriage is also irrelevant when dividing up Community Property.

Community Property also includes pensions, benefits, stock plans, accrued vacation, deferred compensation, frequent flier miles, publishing rights, copyrights, patents, or anything else of value acquired during the marriage. The Court may also take into consideration the wasteful spending of Community Property assets, destruction of assets, and concealment or fraudulent transfers of Community Property when making the determination of the “Property Division”. Other issues examined by the Court include: length of the marriage; how much property is available for Division; the financial requirements of each of the parties based upon age, health; education level and ability to obtain work and things of that nature. Under certain circumstances, the Judge can order repayment of Separate Property contributed to improve Community Property assets (i.e. inheritance money used to improve the house).

Consent Decree/Marital Settlement Agreement

If the parties agree to a Settlement prior to going to “Trial”, they can file a “Marital Settlement Agreement” with the Court. This serves as a contract between the parties concerning all issues. This document is normally titled a “Stipulation to File Consent Decree”. It must be signed by both parties and filed with the Court for the Judge to review, grant, and sign. The Court will normally adopt all of the terms set forth in the Agreement, unless there are any glaring issues. It is common for a Consent Decree to occur when one spouse does not wish to fight the original “Petition for Dissolution”.

Trial

After all “Discovery” has been completed, then the lawyers will sit down and attempt to negotiate a “Marital Separation Agreement/Consent Decree”. If this is not possible, then they will file a document with the Court to have the case set for “Trial”. Most cases normally take one or two days for Trial.