In this document, I refer to your "divorce," although the term in Arizona is actually "dissolution" or "dissolution of marriage." All these words mean the same thing. In addition, many of the documents, procedures and services apply only to Maricopa County Family Court proceedings. If you are involved in a Family Court case in another county, you should check with your County to see if a particular procedure or document applies to you.

What is a Covenant Marriage and do I have one?

Starting in August, 1998, people getting married had the option of entering into a covenant Marriage. (If you were married prior to August, 1998, you do NOT have a covenant marriage.) To enter into a covenant marriage, premarital counseling is required, and the parties sign a special declaration declaring that they have chosen a covenant marriage. When a covenant marriage is chosen, a divorce may be granted only after certain conditions are met. These conditions are not generally required in order to get a divorce from a non-covenant marriage. Those conditions include:

• one party committing adultery
• one party being convicted of a felony
• physical or sexual abuse by one spouse against the other, or against a child of the parties
• abandonment of the home by one spouse for at least one year
• separation of the parties for at least two years
• regular abuse of drugs or alcohol by one spouse
• or that both parties agree to the divorce

For more information about a covenant marriage, go to http://supreme.state.az.us/dr/Pdf/covenant.pdf

Actual Separation

An actual physical separation is not a requirement to obtain an Arizona divorce. The parties may continue to reside in the same home while the divorce is filed, while it proceeds, and even after it is final if they choose.

Annulment

A legal annulment is different than an annulment granted by a Catholic or other church. In Arizona, the only grounds for a legal annulment are that the marriage is null and void due to some impediment that prevented a valid marriage from taking place. Generally, the grounds for annulment are difficult to show except in very specific, narrow circumstances.

Conciliation Services

Arizona offers Conciliation Services free of charge through the Court system. This process can be used by either party for reconciliation attempts. If reconciliation is not an option, Conciliation Court will also help you and your spouse mediate child custody and visitation issues. Mediation is an attempt to get the parties to agree to a schedule and custody plan. Conciliation services do not discuss or mediate support or property issues, although private mediation services are available for those issues at a cost to you.

Domestic Violence

If your spouse has been physically abusive to you, you can obtain an Order of Protection from the Court before or after filing for a divorce. You do not need to also file a divorce action to obtain an Order of Protection, although they can be filed at the same time.

End of the Community

On the date you are served with divorce papers (or the date your spouse is served or accepts service), the community legally ends. Any property acquired after the date of service is the separate property of the who acquires the property. The definition of property includes earnings and salary, as well as property actually purchased by one party.

Similarly, the community for purposes of "debts" ends upon the service of the divorce papers. After the service date, debts incurred by only one party may be considered by the Court to be the separate debt of the person who created the debt.

Grounds

The only grounds for a divorce in Arizona is that the marriage is "irretrievably broken" with "no reasonable prospect for reconciliation." This is a "no-fault" state, which means that it is not necessary (and usually not even allowed) to say which person caused or wants the divorce, which person might have had an affair, or which person committed "mental cruelty."

Legal Separation

Although there may be instances where a legal separation is possible, it is not generally used and is not a service I can offer. If you are not ready for a divorce, the best option is probably counseling (either individual or joint).

Residence Requirements

The residency requirement is that at least one of the parties (not necessarily both) have lived in the State of Arizona for at least ninety (90) days prior to filing the divorce action. If only one of the parties lives in Arizona, and the other party has not lived here at all, the Court will be limited in what property it can divide and what orders it can enter against the non-resident spouse, but the Court can dissolve the marriage for the person who lives here.

Service or Acceptance of Service?

After the Petition is filed, your spouse must receive a copy of it through the proper means. One way is to have a process server or deputy sheriff hand-deliver (serve) a copy on your spouse. Sometimes this brings on embarrassment and hard feelings, particularly if service is done at work or in front of the children. An alternative is to have your spouse sign an "Acceptance of Service" stating that he/she received a copy of the paperwork. My policy is to attempt the Acceptance of Service process first. Don't worry if your spouse will not accept the papers voluntarily. It is usually no trick to obtain service.

Starting the Proceedings

Divorce proceedings are started with the filing of a "Petition for Dissolution of Marriage" by one party with the Court. This original Petition is always accompanied by other documents required by the Court, including a "Preliminary Injunction" which orders both parties not to do certain things with the assets and children of the parties.

Waiting Period

No divorce can be granted until at least 60 days have passed since your spouse is served with the Petition. This is a minimum period of time. My experience shows that most uncontested matters are actually completed three to four months after service. Contested matters can take as long as 12-18 months or longer, depending on the court's calendar. During the waiting period, we will try to work out the details of custody, visitation, support and property division.

Who Should File?

Currently, there is no legal significance as to whether the husband or the wife should file the Petition. Pride is another matter. If possible, you can discuss the question of "who files" with your spouse ahead of time to avoid a "race to the courthouse" and a duplication of efforts and court costs.

Affidavit of Financial Information Form

Your attorney, or the Court, may ask you to complete a form called an Affidavit of Financial Information to help determine what the child support award might be. This document is also required by the Court before you appear at any hearings involving child support or spousal maintenance. It can be obtained through the Links Section or from the Maricopa County Superior Court Self-Service Center (See Resources)

Child Support

Child Support Guidelines have been prepared for the State of Arizona which apportion child support based on the gross incomes of both parents. Typically, the expenses, debts, house payments and car payments of each parent are NOT considered in awarding child support, although support paid for other children not of this marriage is considered.

If extra expenses are routinely incurred for the child(ren), those expenses MAY be added to the child support amount, but additions are up to the judge. Private school tuition payments made be factored into the child support amount only if both parents have agreed that the child attends private school. Arizona's current Child Support Guidelines may be obtained through the Resources Section.

Children & the Divorce

Divorce proceedings are very emotional and often one (or both) parties will be seeking revenge. Sometimes one parent will use the children to try and hurt the other parent. Try to prepare your children for the divorce without poisoning their minds about the other parent. Most often, the parent who "talks down" the other parent is the one the children will resent most. Try to cooperate with your spouse where the children are concerned, if at all possible.

I can't emphasize how important it is to try to keep the children insulated from the nastiness of a divorce and from the divorce process in general. Obtain professional advice about how to handle the situation with your children, if necessary. I can help you find suitable counselors for your children, if you think they need help coping with the process, and there are numerous books and articles published to help you help your children with this very difficult time.

The Parent Information Class which is required in all dissolution proceedings involving children is a good source of information about how the divorce process will affect your children, and about things you can do to help them.

Custody

There is no legal presumption in Arizona favoring either parent for custody of the children. There is no legal presumption in favor of joint custody or sole custody. Each case is determined on its own merits. There are two types of joint custody, "joint legal" and "joint physical" custody. Joint legal custody means that one parent is the "primary residential parent" and generally has the children more of the time, subject to visitation by the other parent. Joint physical custody means an almost 50-50 division of the children's time. In either type of joint custody, the parents are expected to communicate and confer regarding major decisions about the children, such as education, child care, medical and religious decisions.

Disagreements over custody, or whether a situation will be called sole custody or joint custody, are guaranteed to put you in the middle of a bitterly contested and expensive divorce. For this reason, the Court requires both parents to attend mediation at Court, without attorneys, to discuss the settlement of all custody and visitation disagreements before those issues can be heard by a judge.

Parent Information Class

In any divorce involving minor children, even if you and your spouse agree on custody, both parents must attend a Parent Information Class. A list of court-approved classes, including locations and telephone numbers, should be provided to you at the time you file for divorce. You may choose to attend any class you wish, but this requirement should be met within sixty (60) days after you receive (or file) your dissolution papers. You will receive a certificate of attendance at the class which should be given to your attorney so it can be filed with the Court.

Visitation = "Parenting Time"

Visitation is actually called parenting time, to reflect that both parents have a significant contribution to make to their children and one parent is not just "visiting". If you and your spouse can agree to the details of your parenting time plan (meaning, the days and times that each of you will have the children) the court will usually approve the plan you have worked out. Parenting time plans must state specific schedules including days and times, and cannot simply be "reasonable," "unlimited" or the like.

Even if you and your spouse think you can agree on everything to do with parenting time, your agreement must be in writing in case of future disagreements or misunderstandings. Typical visitation patterns are set forth in the "Model Parenting Plans" which were developed by the Arizona Supreme Court. Go to the "Links" Section of this website for a link to the Model Parenting Plans.

What is a Parenting Coordinator?

A Parenting Coordinator is a professional appointed by the court at some time after a parenting time order is entered. The Parenting Coordinator may be a mental health professional (Ph.D. or counselor) or an attorney who specializes in family law. The Parenting Coordinator (PC) meets with the parties about problems they have with the parenting time order, including interpretation of its provisions, filling in missing provisions, or making small corrections to the plan for something that isn't working. The PC tries to reach agreements between the parties about disputes, but if the parties can't agree, the PC makes a written recommendation to the Judge. Either party may object to a PC recommendation, and the judge then either adopts the recommendation or sets a hearing on it. Ideally, after working with the PC for awhile, the parents can start working together to resolve more and more of their parenting time problems without the assistance of the Court or the PC. Even though the PC is appointed by the Court, he is not a court employee and the parties pay for the PC services.

Attorneys' Fees

The exact fee for your divorce varies widely with the services you require from an attorney. A basic uncontested divorce which includes the preparation and filing of the Petition, consultation between you and the attorney, service of the documents on your spouse, obtaining information from you, and the preparation of a final Decree or Property Settlement Agreement and Custody Agreement which you and your spouse have agreed on can cost a few hundred to a few thousand dollars, plus the Court costs listed above. If there are any disputes on any issues, the fee will go much higher, as additional consultations between you and your attorney, meetings with your spouse's attorney (if any), and court appearances will be necessary. The more contentious things are between you and your spouse, the more expensive the case will be and the longer it will take to finalize.

More work is also required where issues are complex, where experts must be consulted, and where depositions and discovery are extensive. If a temporary orders hearing as described above is necessary, that proceeding alone will add substantially to the costs of the divorce.

Because the issue of attorneys' fees and costs is so important and can vary so much, please carefully read the Retainer and Fee Agreement which should be provided to you by any attorney you consult with about a divorce. That written Agreement should spell out the terms of you agreement with this attorney regarding fees and payments. You should be familiar with the document and understand it before you sign anything to retain an attorney.

Court Costs & Other Costs

The Court system will charge a filing fee when a Petition is filed, and another filing fee for the Respondent to file a Response. Documents which must be served on your spouse, if he/she will not accept service, will cause additional charges to be paid to a process server.

If depositions, Subpoenas and investigations are necessary, those costs will run substantially higher, as there are court costs involved with these matters, in addition to the fees which an attorney will charge. Custody and other experts will need to be retained separately from your attorneys' fees.

Debts

You and your spouse probably have some (or many) debts that you've acquired together, during the marriage. Part of our negotiations for the final property division will include a discussion on how to divide those community debts. If you or your spouse still have debts which were incurred before you were married, those debts will generally be the separate debt of the spouse who created them.

You must be aware that the way you and your spouse choose to divide your joint debts is NOT binding on the person or place you owe the debt to. If ABC Bank loaned you and your spouse money while you were married, the Bank has the right to try and collect from either or both of you, no matter what your divorce decree says who is to pay that debt.

Personal Property and Furniture Division

PERSONAL PROPERTY AND FURNITURE I think I speak for many attorneys when I say that the issue of dividing furniture and personal items can be a nightmare in a divorce. For every client I have who says “[S]he can have almost everything; I don’t want much”, I have three more who are insistent that the furniture be divided equally----somehow. Dividing the furniture, knick-knacks, family photographs, artwork, and other items with emotional value is difficult even when a short marriage ends, and can rise to horrific levels when a marriage of 20+ years ends. There are cases when one party is happy to allow the other party to keep most of the furniture in the house, but wants a significant cash credit in the property division for giving up all of that “valuable” furniture. I would rarely advise a client to take a lot of used furniture in lieu of cash or other property which goes to the other party. I’m happy to say that in the majority of the cases I see, the parties themselves somehow divide the furniture between themselves, without involving the attorneys. These people recognize that paying one or two attorney at $300 per hour (or more) to divide used furniture is not a wise use of their money. When the attorneys do have to get involved in dividing furniture, lists of all the items need to be made. There are a couple of types of lists that might help the attorneys work out the furniture division, if the parties are arguing about it: (1). Two lists of things that BOTH parties agree are already divided and it’s okay for the other person to be awarded all of the things on his/ her list. There will usually be a third list prepared, which is a list of all the things the parties can’t agree on and that both parties want; or that only one party wants, but the other party feels it’s valuable, and wants to be paid for it somehow. The attorneys would then focus on resolving that third list (ignoring everything the parties have already agreed on). (2) A list which contains absolutely EVERYTHING the parties own or acquired during their marriage, including property located in either person’s household, and including everything that is in storage somewhere. Without a list of some type, the attorneys can’t even begin to help the parties divide furniture and personal property. You have a couple of options for making sure the furniture is divided fairly equally: First, you could have everything appraised. The appraised values will be at "garage sale" value, which is considered fair market value, and this is the value which is used for divorce purposes. Original purchase price or replacement values are irrelevant. People are often disappointed to find that for divorce purposes, the leather couch they paid $5000 for, just a year ago, is now valued at $700 or less. Another option is that, after the whole list of all property is compiled, one party makes two lists which, combined, include all the property. The other party (the non-list maker) then gets to choose what list he wants, and the list-maker is left with the other one. This pretty much ensures that the person preparing the lists makes them fairly equal, as that person has no idea which list she is going to end up with. In some cases, a party can give his attorney a list of furniture items that he wants, with the statement that if he gets these things, the other party can keep everything else and they’ll call it even. This is the optimal situation, as it minimizes the lists, does not require an expensive appraisal of things, and minimizes the attorney’s time in dealing with personal property. Before you involve your attorneys in dividing personal property, strongly consider how much money you want to spend to retain a lot of used furniture that is worth pennies on the dollar.

Property Division

There is no fixed way to determine how you or the Court should decide how to divide your property, although our law says the division should be "equitable" and equitable almost always means equal. Other factors include whether or not property is community or sole and separate. If you and your spouse agree on this division, the Court will usually approve your written agreement. If you cannot agree, the Court will divide your property and debts for you after a trial.

Spousal Maintenance (Alimony)

In Arizona, either spouse may be awarded spousal maintenance (alimony) for a period following the divorce if that spouse meets certain criteria. The criteria includes the spouse's earning history, whether or not the spouse stays home with an infant, and the length of the marriage. If the spouse qualifies for some support, the amount and duration of the payments is determined by examination of numerous other criteria. Lifetime spousal maintenance is rare in Arizona but is still available for long-term marriages. There are no numerical guidelines for spousal maintenance as each case is examined on its own circumstances. That fact can often make spousal support a difficult issue to settle short of a trial. If spousal maintenance is paid, the recipient must report it as income for tax purposes and the paying party can deduct it from taxable income.

The Affidavit of Financial Information form mentioned above is helpful in determining if maintenance is necessary and how much is needed.

Temporary Relief

If you and your spouse have not agreed to the children's custody and visitation on a temporary basis (until the divorce is final), or have not agreed who will continue to make payments for the family's basic needs and payment of debts, you may need temporary orders relief (also called "pendente lite" relief). Pendente lite orders stay in effect while the divorce is pending. A short hearing is held in front of a Superior Court Commissioner to determine what orders are necessary.

Uncontested Divorce

Even if you and your spouse both agree you want a divorce, the divorce is only "uncontested" if you agree to every provision concerning custody, visitation, support, maintenance, and division of property and debts. If any of these matters are disputed and cannot be settled through negotiations with the attorneys, your divorce is NOT uncontested and a trial will be necessary.

Use of Experts

In some cases, outside experts need to be employed to determine specific issues. One example is the use of a psychologist to perform a "custody study" or family study in a custody dispute. Another case is the use of a CPA or business appraiser to determine the value of a family-owned business, a professional practice, or shares of a larger business. Real estate appraisers are often employed where the value of real estate is not agreed on by the parties.

Change of Wife's Name

The Wife's former name may be restored to her, at her option, in the final Decree of Dissolution. If the Wife does not change her name at this time but waits until later, a separate court proceeding and costs are necessary.

Final Divorce

Your divorce is final when the Judge signs and files the Decree of Dissolution with the Court Clerk. If you and your spouse have settled everything, this will usually be done on paper, and you will sign all final documents at your attorneys' office. Your spouse will also sign all documents at his/ her lawyer's office. Those documents are then submitted to the Court to be entered as a final Decree, which usually takes thirty to sixty days or longer. You will receive your final copies (signed by a judge) when the divorce is final. UNTIL YOU RECEIVE A FINAL DECREE OF DISSOLUTION WITH A JUDGE'S SIGNATURE, YOU SHOULD ASSUME YOU ARE STILL MARRIED.

If your matter is not settled and a trial is required, the divorce will not be final on the day of trial, but could go on for several weeks or months later. After the trial, the Court will need to make rulings on all the disputed matters, and the final documents need to be prepared. Your divorce may not be final for several weeks or months after you go to trial before the Judge.

One Lawyer for Both of You?

I do not ever represent both parties to a divorce action, and don't know any attorneys who will. If your spouse chooses not to retain his/her own attorney, your attorney will deal with your spouse directly and try to settle all issues, but must make it clear at all times that he or she represents only you and not your spouse. If your spouse has legal questions, your attorney cannot ethically answer them, and should refer your spouse to the Bar for referrals to obtain his or her own attorney.

Reconciliation

Your and your spouse may decide after the action is filed that you want to "try again." Most Family Law attorneys will encourage legitimate attempts to reconcile if desired by both parties.

Remarriage

Once you are assured that your divorce is final, and you have seen the final Decree signed by a Judge, you are free to remarry. There is no waiting period after the Decree is signed. If you have any doubts about whether your divorce is final, ASK.

Your Responsibilities to your Attorney

I expect a client to be cooperative and truthful in communications with me. If a client is not, I cannot continue to represent that person. I also expect a client to handle financial commitments to me in a responsible and businesslike manner. I do not "carry" accounts receivable or liabilities during a divorce action, even though I realize it is one of the most difficult emotional and financial times of each client's life. Financial institutions, credit cards, friends and family members are where the client must turn if he cannot continue to maintain the financial commitment on his own.

Naturally, a client should always keep me informed of changes in address, telephone numbers, employment, and e-mail addresses.

General Suggestions

Well-meaning (and not so well-meaning) friends, work associates and family will offer advice about a divorce case. In many instances, the advice is not accurate or does not apply to a particular situation. The facts surrounding a marriage and a divorce are unique, and trying to compare one divorce to another is as useless as trying to compare marriages.

Read books on the subject of divorce, whether or not children are involved. Try to keep the lines of communication with your spouse open, but do not discuss specifics of your needs or wants with your spouse if you are both represented by attorneys. If your spouse insists on talking with you about those matters, listen to everything he/she has to say but do not argue, agree or offer substantive input.