Requirements for Divorce in Arizona
Arizona is a no-fault divorce state. You are not required to prove any fault to get a divorce.
Instead, in Arizona either spouse must state that their marriage is broken irretrievably without any prospect of reconciliation.
Your spouse or you must have resided in the county where you’re filing for a divorce for a minimum of 90 days before filing a Petition for Divorce.
Any children from this marriage should have resided in Arizona for a minimum period of 6 months before the court has the judicial authority to pass judgment regarding child custody and parenting time.
From the time that you file your petition for divorce, there is a waiting period of a minimum of 60 days before the judge will approve your divorce.
Grounds for an Arizona divorce
The “no-fault” grounds for a divorce in Arizona are that the marriage is broken irretrievably and there is no prospect of a reconciliation. If the marriage is a covenant marriage, then the grounds for the dissolution of the marriage are:
Physical or sexual abuse.
Alcohol or drug abuse.
If your spouse and you have been living separately and apart continuously for a minimum of 2 years without reconciliation.
If your spouse and you have been living separately and apart continuously for a minimum of 1 year without reconciliation from the date that the legal separation decree was entered.
Both spouses agree to the dissolution of their marriage.
Conciliation Counseling: The divorce case will be stayed if either your spouse or you file a request for conciliation counseling. If requested, free counseling will be provided through the court to your spouse and you.
Step 1: Starting the Arizona divorce process
Preparing the document
To start the process of divorce in Arizona without involving a divorce attorney, you need to fill out the necessary forms, which are available online through numerous sources. In the state of Arizona, the spouse initiating the divorce proceedings is referred to as the “petitioner” and the spouse being served the divorce papers is referred to as the “respondent”.
The forms needed and the fees you have to pay for filing for divorce may vary depending on the county. It is a good idea to check with your local court to ensure that you have the correct forms and ensure that the judge will accept them.
There are two types of divorce packets available
Divorce without children and divorce with children. There are also different packets for the petitioner and the respondent and you need to select the appropriate packet depending on your situation. The packets contain the instructions which will guide you through the entire divorce process.
To file a divorce petition in Arizona, the petitioner must also file the following:
Summons: Informs to the respondent that a divorce has been filed and he/she must take action within a particular time period.
Preliminary Injunction: Stops both the spouses from performing certain actions i.e. with regards to property, money, insurance and children until the court resolves the various issues or both spouses have a written agreement on these issues.
Right to Convert Health Insurance: Your spouse and you have the right to convert health insurance and they should get a notice about their rights and responsibilities regarding any health insurance that both of you may share.
Notice to Creditors: This advises your spouse and you about your rights and responsibilities of each of you regarding the debts acquired by you during marriage.
Family Court/ Domestic Relations Cover Sheet: Gives information regarding your spouse and you.
In the case your spouse and you have children, the following forms must also be filed.
Affidavit Regarding Minor Children
Parent Information Program
Filing your forms
When all your papers are ready, make 2 copies of the same. One copy will be given to your spouse and the other will be kept with you. The original documents will be filed with the county court where you’re filing for divorce.
You will be required to pay a fee for filing your papers unless you apply for “Deferral of Filing Fee” and in case the court agrees to waive off the fee because you are unable to afford it, you will not be required to pay a fee for filing your papers. When you submit the papers, they will be stamped by the court clerk. The petitioner must then sign the petition before the clerk and then have it notarized by the clerk. Once this is done, your spouse must be served immediately.
STEP 2: SERVING YOUR SPOUSE
Once the divorce papers are prepared and filed, they must be immediately served to your spouse. According to the Arizona law, as a petitioner, you have a maximum of 120 days to serve the papers to your spouse and if this is not done within 120 days, then your case will be dismissed by the court clerk automatically and you will have to start the entire process afresh.
As a respondent, if you live in Arizona, you must respond to the petition and summons in 20 days, otherwise, the court may pass a default judgment in favor of your spouse, i.e. the court will award all the things that your spouse has requested in the petition without consulting you. In the case that you reside outside of Arizona, you have 30 days to respond.
If your spouse has not hired a divorce lawyer (pro se), then your spouse must be served at his/her home address. If your spouse has employed a lawyer, then you must serve the lawyer at their office and you must not send any copies of the papers to your spouse. If you are serving your spouse within Arizona, then you must serve according to the special service rules.
The documents cannot be delivered by regular first-class mail or by hand. The documents must be served through:
The deputy sheriff
Certified mail with a return receipt, if your spouse resides outside the state
If you are unable to locate your spouse or your spouse is in jail or in the military, then different service rules may be applicable and you must check with the court clerk for more details regarding the service in these cases.
Step 3: Decide whether your divorce will be Contested or Uncontested
A contested divorce is where both spouses do not agree on the various issues of the divorce such as division of property, child custody, etc. If your spouse and you disagree about even a single issue, then the divorce is a contested one. A contested divorce usually ends up in court and needs a trial where the judge will make decisions on the issues that your spouse and you are unable to agree on.
Usually, for a contested divorce, both your spouse and you will need to hire your own divorce lawyers and you may require to go to court several times. A contested divorce is usually quite expensive and also takes a long time.
An uncontested divorce on the other hand essentially means that your spouse and you agree to end the marriage and also agree on various issues such as property and debt division, child custody, support and visitation, spousal support and amount, etc. In an uncontested divorce, since your spouse and you agree on all the issues, there is no trail and you may be able to handle all the divorce proceedings on your own, without a lawyer. And, even if you decide to employ the services of an attorney, usually, uncontested divorces are significantly less expensive and take less time compared to a
Step 4: DIY or hire an attorney?
DIY Divorce (slowest but cheapest)
If your spouse and you agree on all the issues regarding the divorce, if the property to be distributed is minimal and you do not have children, then you can opt for a DIY divorce. And, if you plan to handle your divorce process without hiring a divorce lawyer, you will have to complete the forms needed for the divorce, which you can get online. Ensure that you respond to the questions properly.
You can either fill out the forms on a computer or write it out by hand legibly and neatly. Once the forms are completed, you can file them with the court clerk in your county court. A DIY divorce is the quickest and cheapest divorce option.
Online Service (quick and inexpensive)
If you need help with the filling of your divorce forms but don’t want to hire a lawyer, using an online service is a good and inexpensive option. Your documents will be generated on basis of your responses to questions you answer and then you must print out the documents and sign them and submit them at the county court. Your divorce papers will not be filed electronically.
And, the online service will charge you a fee for their services and for creating your documents. Apart from this, you will have to pay a fee for filing your papers in court. However, an online service is an appropriate option only if your divorce is an uncontested one and your spouse and you agree on all the issues pertaining to your divorce.
Hire a lawyer (longer and pricy)
If your spouse and you are not able to agree on the main issues of your divorce, then your case will go to trial in court, where it will be heard by a judge and the judge will decide on the various issues. In such a case, both your spouse and you will require to hire a divorce attorney to represent the case on your behalf in the court. Usually, a divorce trial takes a lot of time and is also expensive, because you will have to pay the lawyer’s fees.
Step 5: Resolve the major issues
Arizona follows community property laws. Community property is all the property acquired by both spouses during the marriage and is equally owned by both spouses. Community property is usually divided equitably during a divorce.
Any property that is owned by one spouse before marriage or received by a spouse during the marriage as an inheritance or a gift is considered as separate or sole property of the spouse.
Any spending of the community funds or improvement to the separate property can result in a community lien against the particular asset and the lien will be divided equitably between both the spouses. Though the court may order a lien against any separate property that was improved while the two parties were married and order that one spouse pay the other to compensate for their share of the community lien, the court can award only the particular item of the separate property to the spouse holding the property and cannot order the spouse to sell the property.
The rules for the division of debt are similar to division of community property. All the debts which are incurred during the marriage are considered as community obligations and the debts of each spouse before the marriage are considered as separate and sole obligations of the spouse who incurred the debt.
The judge may order a spouse to pay the other alimony or spousal maintenance if the spouse seeking alimony can prove:
That she/he does not have sufficient property to support their needs.
That the marriage lasted for a long duration.
Is not able to support herself/himself through proper employment.
If the caregiver of the child that makes her/him unable to seek employment.
In the case that the court decides that spousal maintenance is applicable, then the court will consider other factors while deciding the amount of spousal maintenance and duration along with considering the length of the marriage, the age of both spouses and health, the standard of living during the marriage, etc.
In Arizona, the spousal maintenance stops automatically on the death of either spouse or if the spouse receiving the maintenance remarries, unless both spouses agree otherwise in writing.
The are 2 types of legal custody in Arizona – sole legal custody and joint legal custody. In the case of a joint custody, both parents have equal say in making major decisions affecting the child including educational and medical decisions. In the case of sole custody, the parent with the custody can make these decisions pertaining to the child without consultation with the other parent.
Apart from legal custody of the child, the court also issues orders regarding the parenting time of each parent with the child, which includes weekly access schedule, vacation schedule and holiday schedule. The court will decide on the legal custody of the child and parenting time based on the best interests of the child including adjustment of the child to the home of each parent, emotional and physical health of each parent, wishes of the child and if one parent is likely to allow the other to exercise their parenting time with the child.
The court will not award joint custody if there has been an instance of domestic violence or if any parent has a problem of drug abuse. The court may require the parents and the child to be assessed by an expert like a psychologist, who in turn, will give their recommendations of custody and parenting time to the court. Both parents must support the child financially. It is presumed that the parent with custody of the child will provide support for the child by virtue of the child living with the particular parent. The non-custodial parent pays child support to the custodial parent to meet her/his obligation of supporting the child. In Arizona, child support is calculated as per the Child Support Guidelines.
Child support stops on the 18th birthday of the child unless the child is disabled and is not able to support herself/himself. In case the child is in high school, child support will continue as long as the child is in high school but will not continue beyond the 19th birthday of the child. Child support is considered to be the chief obligation and the parent must pay child support before any other obligations. The court can find the parent in contempt of the court if he/she fails to pay child support and may sanction incarceration in jail.
Even if the parent’s rights are terminated, he/she must pay child support unless the child is adopted legally by another person. Child support obligations also cannot be stopped in the case of bankruptcy.
Step 6: Finalizing your Arizona divorce
When you are filing for divorce and have served your spouse and in turn, your spouse has filed a response to the Petition for Dissolution of Marriage, both parties can submit a consent decree to the court, which has all the agreements of both parties. The court will sign the consent decree and the process of divorce will be complete without your spouse or you appearing in court.
However, if the spouse who has been served does not file her/his response within the time period, the petitioner can proceed with the case by requesting the court for a default hearing. The defaulting spouse loses the right to contest the claims set in the Dissolution of Marriage petition; however, he/she can participate in the proceedings regarding the nature of relief and amount that is to be awarded.
If your spouse and you are not able to reach an agreement on the various issues and any one of the spouses has not defaulted, the issues will be presented to the judge at court at a trial by both spouses. After listening to the testimony of the witnesses, the judge will review all the evidence used by your spouse and you at the trial. After this, the court will issue orders deciding on the unsettled issues between the spouses.
Once the final terms of the divorce are decided by you or the judge, a signed copy of the divorce judgment will be issued by the judge. This is a legal document which ends your marriage permanently and addresses the various issues regarding division of property and debt, alimony, child custody, child support and parenting time and the responsibility of your spouse and you for the lawyers’ fees and name change.