Arizona Divorce: Frequently Asked Questions

A. Should I consult with an attorney before I move out?
It would be prudent to seek professional advice from an attorney experienced in family law before taking any action in preparation for a divorce, including shifts of assets or relocating from the marital residence. A consultation does not commit you to proceeding; it only adds to your information base, which will assist you in making informed decisions.

B. What is the right time to file for divorce?
This depends on many factors related to your personal circumstances. Initially, however, it is important to decide whether you are committed to complete a divorce action before you file one. The other personal factors weighing on timing tend to be more tactical and practical, as noted in C.

C. Is there an advantage to being the one who files for the divorce?
Legally, there is no preference given to the initial filer in a divorce action. However, there may be some distinct practical benefits in planning the filing. For example, the spouse who intends to file for divorce, after being aware of the restrictions imposed by the Preliminary Injunction that accompanies the filing, may wish to file immediately after shifting community funds or other assets, or after obtaining an Order of Protection for strategic purposes.

D. How long will it take to get a divorce?
Under A.R.S. § 25-329, a divorce cannot be granted by the court until at least 60 days after the first court papers are delivered to the other spouse. Arizona Courts move relatively quickly compared to many other states. Still, due to certain statutory and Court rule constraints, the timeframe from filing the Petition to obtaining a Decree will generally fall within four to 12 months. There will occasionally be notable exceptions that can extend this time frame considerably.

E. What is the divorce process?
Essentially, the legal process for a divorce starts with the filing of a Petition for Dissolution of Marriage along with certain pleadings. After the filing, a copy of the pleadings is served on the other spouse. The other spouse then files a Response to the Petition, a copy of which is sent to the Petitioner. Depending on the issues needing resolution, next comes disclosure and discovery.

“Disclosure” is an effort to specify the factual and legal positions of each party, together with a list of anticipated exhibits and witnesses. “Discovery” includes a variety of tools intended to secure information and documents from the other party. Those tools include interrogatories, requests for admission, requests to produce documents, depositions, etc.

During this phase, or even at the outset, either party can file a request for Temporary Orders pending the entry of a Decree. In addition, either party may request a settlement conference.

The issues to be settled by the parties or resolved by order of the Court generally encompass child custody, access and support, spousal maintenance, asset distribution, debt allocation and attorneys fees allocation. Any issues that the parties cannot resolve will be determined by a judge.

F. How much will my divorce cost?
More than it should! Attorneys fees are typically an hourly rate multiplied by the number of hours expended in the divorce process. Usually, the more complicated or convoluted the issues or the more unreasonable at least one of the parties, the more cost is incurred in this process. Unfortunately, the reasonable spouse can, at least initially, incur enhanced attorney fees due to unreasonable positions taken by the other spouse.

G. Do both of us need a lawyer?
A party to a divorce is not legally required to have a lawyer. If you and your spouse agree on all issues, and have one attorney draft the appropriate pleadings and documents, the divorce can be processed. However, an attorney can represent only one of you. Before he or she signs the final pleadings and documents, the unrepresented spouse should ask another lawyer to review them.

H. Should I file for divorce or legal separation?
Very few legal separations – as opposed to divorce – are pursued, because there are very few reasons to do so. A Decree of legal separation accomplishes the same resolution of issues as a divorce Decree: child custody and access, child support, spousal maintenance, asset distribution, debt allocation and responsibility for attorneys’ fees. Notably, a legal separation does not sever the marital status, so neither party can thereafter legally marry someone else. If one of the spouses wants to convert the legal separation to a divorce, it will be converted. This can occur whether a Decree of Legal Separation has been entered or not.

I. How can I get an annulment?
To qualify for an annulment, you essentially have to prove that (a) your spouse committed significant (material) fraud upon you before you were married and (b) you relied on the fraudulent act, to your detriment, in proceeding with the marriage. (This can include failure to disclose, but this essential element is difficult to prove.) One example might be an undisclosed criminal history or sexual orientation. Another might be falsifying information such as credit history. The key element, however, is that it must relate to the reason or purpose of the marriage. It must be material enough to prove that had you known of this beforehand, you would not have married. This must be more than, “I didn’t know he/she was like this.”

While instances in which a party might benefit from an annulment instead of a divorce are rare, they do occur. For example, you may use annulment to escape liability for a debt that was incurred during the marriage by a deceptive spouse who, you learned only after the wedding, had a premarital history of such deception.

J. Who pays for joint expenses while the divorce is pending? What are temporary orders?
Temporary orders are often sought when the parties cannot agree on how community expenses, debts and assets are to be managed pending the divorce action. In those cases, the Court will often, upon a party’s request, enter an early order that addresses debt management and other issues needing temporary management. Barring a finding supporting a different handling, the Court will generally allocate such responsibilities based upon the parties’ income or access to assets.

K. Does my spouse’s health insurance still cover our children and me?
The preliminary injunction, which essentially takes effect when it is served with the Petition on the other spouse, prohibits certain actions and requires other actions, including continuing any such insurance. It also addresses dealing with community property and children. However, since the preliminary injunction is general in language, it is often helpful to obtain more specific temporary orders.

L. Does my health insurance still have to cover my spouse?
At least until the Decree is entered, any health insurance coverage in effect at the time of filing the Petition needs to be maintained. The cost of any such coverage should be considered in determining any possible temporary spousal maintenance.

M. How can I get protection from my spouse?
An Order of Protection (O/P), properly based, can be obtained before or after a Petition for Dissolution is filed. If before, it can be sought in Superior Court or Justice Court. If after, it must be filed in Superior Court. If filed in Justice Court and a divorce petition is subsequently filed, the O/P will be transferred to Superior Court for all further proceedings. In a marital setting, the O/P (not an injunction against harassment) is the proper action. Forms for filing and processing an O/P can be obtained at the Court or at the Court website, along with other forms, at www.superiorcourt.maricopa.gov. They are effective as soon as they are served on the other party. You should also ensure that your local police department has a copy.

N. Who will get custody of our children?
Barring a showing of unfitness or other harmful impact on the children, the Courts tend to prefer a joint legal custody arrangement, which encourages involvement of both parents in the lives of their children. Usually the more difficult issue is physical access. This issue depends on so many variables – such as work schedules, physical proximity of the parents, ages and activities of the children, etc. – that your physical access plan will deviate in some ways from a plan for any other couple.

O. What is the difference between sole custody and joint custody?
For most purposes, the difference is perception. Many of the privileges and responsibilities are similar. The key is not in the designation of “sole” versus “joint,” but in the details of the parenting plan. Properly drafted, a sole custody designation does not allow either parent to discount the interests and input of the other parent.

P. What will the Court order for parenting time with my children?
As noted in Part N above, the access plan is the most critical document in a custody negotiation. The Court will generally abide by the agreement of the parents, if the plan is in the best interests of them and the children. If the parents cannot agree, the Court will listen to the evidence and determine a plan. More often than not, with an access schedule issue, the Court will likely order a settlement conference, conciliation services counseling and/or parenting conference. A parenting conference normally produces a report recommending an access plan for the Court’s consideration. This is often the most expeditious and cost-effective method of resolving access plan issues.

Q. What will the Court order for alimony (spousal maintenance)?
Many factors contribute to a determination of spousal maintenance. Those factors include the length of the marriage; employment status and income level; physical, emotional or psychological impairments; employment opportunity; assets; education and training; lifestyle; financial need; and any other factor weighing on a party’s ability to transition to a single status and the other party’s ability to pay.

R. What will the Court order for child support?
Child support is generally determined in accordance with the Arizona Child Support Guidelines. Factors include income (passive and earned), employment benefits, minor children not of the marriage, other support orders and obligations, child care costs, health insurance premium costs, and the time each party spends with the children. If spousal maintenance is an issue, that is generally decided before a child support amount is determined.

S. What happens if my spouse doesn’t pay their Court-ordered alimony or child support?
Failure of a spouse or ex-spouse to pay Court-ordered spousal maintenance or child support is actionable by pursuing a judgment for arrearages and collecting as with any other judgment, or through a contempt citation process through the Court. Since child support is generally payable through a wage assignment, collection should be automatic. If the state is involved in a case with at least six months child support arrearages, the delinquent payer may also suffer restrictions or suspensions of professional, occupational and/or driver’s licenses. The best direction you may take for collection depends on where the money or pressure points of the delinquent payer may be.

T. Will the Court allow me to move out of state?
Of course, but it may not be with the children. Barring an agreement between you and the other party, you will normally need a Court order to allow you to permanently relocate with the children. Your first act should be to review the divorce decree, if it has been issued. Certainly, relocating with the children without the other parent’s written consent during the pendency of a divorce action is prohibited without Court approval. Since such a shift of the children would normally have a profound negative impact on the children and the other parent, you would carry a high burden in persuading the Court that such a relocation is best.

U. Should I go to mediation?
Mediation of disputed issues is generally advised. Court mediation is available at a reasonable cost for custody and access plan issues. Private mediation of all issues is available at a higher cost and is advisable if both parties are willing to negotiate their respective positions. Another option is to ask the Court to appoint a judge pro tem to conduct a settlement conference, at which a settlement agreement and Decree can be promptly drafted and entered, upon full agreement. Even a partial agreement at a settlement conference allows more input by the parties in fashioning a Decree than a trial.

V. How are our property and debts divided?
In a word: equitably. Many sub-issues revolve around the general topic of asset distribution and debt allocation. Some of the elusive factors to consider are whether the asset or debt is community or separate, incurred for the benefit of the community, community contributions to separate property, prenuptial agreements, purpose of the acquisition of the asset or incurring of the debt, and other factors.

W. What is community property? What is sole and separate property?
Community property is essentially any asset acquired with community funds or for a community purpose, or any separate property converted to community property. If an asset is acquired during the marriage, the legal assumption is that it is community. Exceptions to this include gifts, inheritance, and interest on, or any increase in value in, separate assets.

Sole and separate property belongs to the party acquiring it. This includes property that was owned prior to marriage and that has not subsequently been gifted to the community. For example, separate real property conveyed by one spouse to both is presumed to be gifted to the community. However, a sole and separate bank account entitled in both spouses’ names is not so presumed.

X. What will happen to my business?
That depends on various factors, including (a) whether the business was yours prior to marriage, (b) whether such a business increased in value during the marriage and, if so, (c) whether that increase can be proven attributable to market forces (separate) or your effort (community).

If you started the business during marriage, it will likely be considered community property.

If the business or any portion of it is community property, and you want to retain the business, you will likely be required to offset your spouse’s interest in that community portion with other community property or the purchase of the other’s interest.

Personal service businesses are very difficult to appraise, since the value of the business may be closely tied to the ability of the owner-spouse, and valuation experts often calculate dramatically different value estimates.

Y. What if my spouse doesn't give property to me that has been awarded to me by the Court?
Similar to your right of recourse if your spouse doesn't meet their other obligations to you, you can obtain Court orders and/or sanctions against the non-compliant party pursuant to Court rules.

Z. What rights do grandparents have?
Grandparents have some statutory rights of visitation with minor grandchildren. Under narrow circumstances, they may also have some statutory rights to custody. If logistically possible and appropriate, a grandparent’s visitation should occur during the time of the parent through whom the grandparents claim access.