Frequently Asked Questions
about Arizona Divorce
Divorce in Arizona carries relatively few legal certainties. How the story ends
and how courts are likely to rule on any issue depend largely on the specifics
of the situation.
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A. Should I consult with an attorney before I move out?
B. What is the right time to file for divorce?
C. Is there an advantage to being the one who files for the divorce?
D. How long will it take to get a divorce?
E. What is the divorce process?
F. How much will my divorce cost?
G. Do both of us need a lawyer?
H. Should I file for divorce or legal separation?
I. How can I get an annulment?
J. Who pays for joint expenses while the divorce is pending? What are temporary
K. Does my spouse’s health insurance still cover our children and me?
L. Does my health insurance still have to cover my spouse?
M. How can I get protection from my spouse?
N. Who will get custody of our children?
O. What is the difference between sole custody and joint custody?
P. What will the Court order for parenting time with my children?
Q. What will the Court order for alimony (spousal maintenance)?
R. What will the Court order for child support?
S. What happens if my spouse doesn’t pay their Court-ordered alimony or child
T. Will the Court allow me to move out of state?
U. Should I go to mediation?
V. How are our property and debts divided?
W. What is community property? What is sole and separate property?
X. What will happen to my business?
Y. What if my spouse doesn't give property to me that has been awarded to me by
Z. What rights do grandparents have?
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
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.
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.
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.
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
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.
Who pays for joint expenses while the
divorce is pending? What are 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.
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
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.
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
the Superior Court's website. 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.
Who will get custody of our children? Barring a showing
of unfitness or other harmful impact on the children, the Courts tend to prefer
joint legal "custody" (officially termed "decision-making authority"), 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
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.
What will the Court order for parenting
time with my children? As
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
What will the Court order for alimony
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.
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
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
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.
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.
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.
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.
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.
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
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.
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.
More on business ownership in
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.