As they take their vows and say their “I do’s” most couples don’t contemplate ever going through a divorce. The unfortunate reality is that about one-half of all marriages will end in divorce. When a marital union does dissolve, major life changes will occur. Arrangements will need to be made for the children. Who will they live with and when? Who will care for them and make vital decisions concerning their health, their education and other aspects of raising children. Who will pay child support and how much? What about health insurance? Will you have to pay or will you get to receive spousal maintenance, and if so, how much and for how long? What will happen to your home, your belongings, your retirement, your savings? What happens to the bills your family owes?
While it is best if couples ending their marriage can agree on all of these important issues, the reality is that they often have different visions of their futures. This can often lead to a divorce process that can become adversarial, time-consuming and expensive.
If you’re considering a legal separation or divorce, or if you’ve been served with a divorce petition by your spouse, it’s important that you consult with an experienced family law and matrimonial attorney who can help you navigate the complex divorce process and protect your best interests.
Grounds for Divorce
The reasons for divorce are plentiful. Traditionally, some of the more common ones were adultery, domestic abuse, abandonment, physical incapacity or incarceration of one of the parties. But those days are long past. Arizona is a “no-fault” state meaning that either party can file for divorce without giving a reason or blaming the other spouse for wrongdoing. Except in cases where the parties have a covenant marriage, the only ground for dissolution of marriage in Arizona is that the marriage is irretrievably broken and is beyond any reasonable prospect of reconciliation. This does not allow one spouse to prove that the other spouse is at fault for that breakdown or was not a good marital partner. A party who does not want the marriage dissolved can file Petition for Conciliation with the court. This will freeze, or “stay”, the case for up to 60 days while the court tries to commence a basic dialogue between them to see if the marriage can be rehabilitated enough for them to agree not to proceed with the court case. But unless the parties voluntarily agree to reconcile during the time that the case is stayed, the divorce process will resume and the marriage will ultimately be dissolved.
The Divorce Process in Arizona
In order to initiate the divorce proceeding, known as dissolution of marriage, one of the parties must have lived in the state of Arizona for a minimum of 90 days. Provided that he or she meets the residency requirement, the party can file a petition for dissolution of marriage with the Clerk of the Superior Court in the county of residence. This petition requests that the marriage be terminated and addresses issues of property division, spousal maintenance and child custody, if applicable.
Along with this petition, a number of additional required documents must be prepared, issued and served. A Summons signed by the court clerk to give official notice of the initiation of the case. The clerk will also issue a Preliminary Injunction, a court order that imposes significant restrictions on the parties’ conduct for the duration of the case, prohibiting certain expenditures, transfer or disposal of property, taking common children outside Arizona, terminating insurance coverage and from molesting, harassing or disturbing the peace of the other spouse.There will be notices regarding the impact of the case and the impending divorce on health insurance and relations with creditors. If there are children involved, there will be requirements to complete a court-approved parenting class.
An experienced attorney can help you to identify what is needed, make sure that all of these documents are completed correctly and clearly set forth your wishes for the dissolution of your marriage and what your specific responsibilities are to comply with the court restrictions and requirements.
After the Petition for Dissolution of Marriage is filed, the other spouse, commonly referred to as the respondent, must be served with a copy of the petition and all accompanying documentation. In the response, the respondent will indicate whether or not he or she agrees with the provisions laid out in the petition.
If a response is filed and both parties are in agreement, a judge will still need to review the terms and sign the order to officially dissolve the marriage.
If the respondent fails to respond in the given timeframe, the petitioning spouse may apply for a default, giving the other spouse an additional ten working days to respond. If a response is still not filed, a Default Decree of Dissolution of Marriage may be issued, but not before more than 60 days has passed since the Petition for Dissolution of Marriage was served. This Default Decree generally upholds all of the terms in the petitioner’s filing and cannot contain terms not asked for in the Petition.
If the parties fail to agree on the terms of the divorce, further proceedings will take place. The parties will be required to exchange copies of a wide range of documents and records so that each has full information to be able to support his or her position on the issues. Hearings may be scheduled to set interim arrangements for the duration of the case on such matters as where each of the parties will live, who the children will be with, and when, and who will make critical decisions about their needs and interests, what money will be paid for child support and spousal maintenance, who will pay which bills, and if other interventions are needed for there to be sufficient information for the judge to be able to make ultimate decisions in the case. The judge may require that there be a formal settlement conference chaired by a mediator. If the parties cannot agree on all issues at some time during this process, which can often last between six months or more, a trial must be scheduled so the judge can make the final decision on the issues in dispute.
Once all of the issues have been decided on, the court will issue a Decree of Dissolution of Marriage. This legal order officially terminates the marriage and includes provisions on the following matters:
- Child custody and parenting time
- Child support
- Spousal maintenance
- Division of marital property
- Responsibility for marital debt
- Whether a party has improperly wasted marital assets
- Whether there is separate property that does not get divided
- Whether there is separate debt that does not get apportioned
- Whether one of the parties will be sanctioned or punished, for misbehavior during the course of the case
This order may also restore the legal name of either party before they entered into the marriage.
Do-it-yourself solutions and non-attorney document preparers fail to adequately guide individuals through the complex process, advise them on legal and practical issues that may arise and ensure that the terms of the agreement are structured in a manner that protects their best interests and cannot represent parties in court.
While you may believe that your divorce will be a simple one, that is rarely the case once the proceedings begin and conversations about child custody and money commence and the parties become more hostile. For over 40 years, Victor Garnice has provided knowledgeable and effective legal counsel and representation on divorce matters to individuals in Scottsdale and throughout Arizona. This is one of the most difficult times in a person’s life and we work closely with each of our clients to ensure their matters are resolved in an efficient and cost-effective manner with the best result possible. Call 480-351-4804 to schedule your free consultation and learn how you can move past your divorce and on with your life.