- Legal Overview
- Divorce Process
- Grounds for Divorce
- Division of Property
- Spousal Support
- Child Custody
- Child Support
A divorce is a legal proceeding wherein one or both spouses are seeking to end their marriage. As a part of the divorce proceeding, the Court will issue orders pertaining to custody of the parties’ children, will order the payment of child support for those children, will divide the joint, common and community property between the spouses and award to each spouse their respective sole and separate property, and, if appropriate, order one spouse to pay the other support in the form of alimony (i.e., spousal maintenance). At least one of the parties must have resided in the county in which the divorce is filed for at least ninety (90) days prior to the date the Petition for Divorce is filed and the parties’ children must have resided in the State of Arizona for at least six (6) months before the Court will have jurisdiction (i.e., judicial authority) to rule upon issues of custody and parenting time over the parties’ children.
A Decree of Dissolution of Marriage constitutes the final order of the Court restoring each spouse to the status of a single person and includes orders concerning child custody and parenting time, child support, division of property and debts, spousal maintenance and any other appropriate orders.
Although the Court’s orders regarding division of assets and debts are final orders that may not be modified later, the Court retains the authority to modify child custody, parenting time, child support and spousal maintenance if a substantial and continuing change in circumstances occurs.
Conciliation Services is a separate branch of the Court comprised of trained family counselors and mediators available in many counties to assist couples in resolving marital problems and disputes over children without involving trials, lawyers or judges.
Although Conciliation Services charges a fee, the services provided are typically significantly lower than the fees charged for similar services by private providers. However, private insurance cannot be used to pay for these services.
Grounds for Divorce
Arizona is considered a no fault divorce state, which means neither spouse is required to prove any specific grounds (or fault) for the dissolution of the marriage. All that is required is that one spouse alleges the marriage is irretrievably broken with no prospect of reconciliation. However, either party may file a request for Conciliation Counseling, which if sought timely will result in a stay of the case during which time free counseling is made available to the parties through the Court.Most divorce cases in Arizona begin with one party paying the required filing fee, filing the initial Petition for Dissolution of Marriage and serving that Petition on the other party through a private process server. The spouse who is served then has a specific amount of time within which to file a written Response to Petition for Dissolution of Marriage.The parties may then submit an agreed upon settlement in the form of a Consent Decree of Dissolution of Marriage to the Court, which contains all of the parties’ agreements. The Court will then sign the submitted Consent Decree and the divorce will be complete without either spouse having to appear in court.Alternatively, if the spouse who was served with the initial Petition for Dissolution of Marriage fails to file his/her Response within the applicable time period, the petitioning spouse may then proceed with the case by defaulting the other spouse and requesting a default hearing. The defaulted party is then held to have admitted the allegations in the Petition for Dissolution of Marriage and loses the right to litigate the merits of the claims set forth therein, but may still appear and participate in any proceedings concerning the nature and amount of relief to be awarded.
If the parties are unable to reach an agreement on all of the issues and one of the parties has not been defaulted, the unresolved issues between the parties will be presented by each party to the court at a Trial. The Judge will listen to the testimony of witnesses and review the other evidence used by each party at that trial, after which time the court will issue orders deciding all of the unresolved issues between the parties.
Division of Property
Arizona is one of the relatively few states that follow community property laws. Community property laws, correspondingly, generally provide that all property acquired through the labor of either spouse during the marriage is owned equally by the two spouses. Community property is, correspondingly, to be equitably divided during a divorce, which in most cases is presumed to be equal. All property owned prior to the marriage by one spouse or received by that spouse during the marriage as a gift or inheritance is the sole and separate property of that party. However, the expenditure of community funds or labor to the improvement of that separate property may result in the imposition of a community lien against that asset, which lien would be equitably divided between the two spouses.Although the Court may impress a lien against separate property which was improved during the marriage and order that spouse to pay the other spouse an amount sufficient to compensate him/her for his/her share of that community lien, the Court may only award the specific item of separate property to the spouse who holds that property as separate property and cannot order him/her to sell the property.
The rules pertaining to the division of debt upon divorce are similar to the rules pertaining to community property, such that all debts incurred during the parties’ marriage are presumed to be community obligations while debts incurred by either party prior to marriage are presumed to be the sole and separate obligation of the spouse who incurred that obligation.
A Judge may order one spouse to pay the other spouse alimony (i.e., spousal maintenance) if the recipient spouse can establish that he/she lacks sufficient property to provide for his/her reasonable needs, has had a marriage of long duration, is unable to support himself/herself through appropriate employment, or is the caregiver to a child of such tender years that he/she should not be expected to seek employment.If the Court first determines spousal maintenance is appropriate, the Court will consider several other factors when deciding the amount and duration of the spousal maintenance obligation, including the length of the parties’ marriage, the age and health of each spouse, the approximate standard of living established during the marriage and many other factors.
Spousal maintenance awards in Arizona automatically terminate upon the death of either party or upon the remarriage of the recipient spouse, unless each spouse specifically agrees otherwise in writing.
The term “custody” really refers to two separate and distinct issues. Specifically, the term refers to the form of “legal custody” and the specific “parenting time” arrangements. With respect to legal custody, there are really two principle forms of legal custody in Arizona; specifically, joint legal custody and sole legal custody.Parents with joint legal custody each share equally in making decisions impacting the major decisions affecting the parties’ child, including medical and educational decisions. A parent with sole legal custody is allowed to make those same decisions without consulting the other parent.
Separate and apart from the issue of legal custody, the Court will issue orders providing for each parent’s parenting time with their child, which will include a regular weekly access schedule, a holiday schedule, and a vacation schedule.There are no presumptions in Arizona favoring any particular form of legal custody or parenting time schedule and all such disagreements are resolved by the Court’s determination of what particular arrangements are in the best interests of the parties’ children after consideration of several factors including the children’s adjustment to each parent’s home, the physical and emotional health of each parent, the wishes of the parties’ child, and whether one parent is more likely to allow the other parent to exercise his/her parenting time with the parties’ child.
There is a presumption in Arizona, however, that joint legal custody is not in a child’s best interests if significant domestic violence has occurred or at least one of the parents abuses drugs.
The Court may order the parties and their child to undergo an assessment by a qualified expert, such as a psychologist, who will then issue recommendations regarding the issues of custody and parenting time for the Court’s consideration.
Both parents have a duty to provide for the financial support of their child. The custodial parent is presumed to provide his/her share of that support by virtue of the child residing primarily with that parent. The other parent, referred to as the non-custodial parent, pays an amount of child support to the other parent to meet his/her obligation of support for the child.Child support is calculated in Arizona by application of the Arizona Child Support Guidelines, which is based upon an Income Shares Model for the calculation of support. Although child support may continue beyond a child’s 19th birthday if the child is disabled and unable to support himself/herself, child support typically terminates upon the child’s 18th birthday, unless the child is still in high school in which case child support would continue while the child continues to attend high school but not beyond the child’s 19th birthday.Child support obligations are considered to be paramount to all other obligations and, therefore, will be expected to be paid first before a parent pays any other obligations he or she may have. Failure to pay child support could result in the Court finding that parent in contempt of court, which may include such sanctions as incarceration in the County Jail.
A parent whose rights have been terminated still retain the obligation to pay child support unless and until the child is legally adopted by another individual. Child support obligations, correspondingly, cannot be discharged in bankruptcy proceedings.