Divorce in Arizona: The Legal Process, Your Rights, and What to Expect

By Marlene A Pontrelli and Robert L Schwartz

Providing accurate and objective information to help make the right decisions during a divorce in Arizona, this guide provides answers to more than 350 queries such as: What is the mediation process in Arizona and is it required? Who decides who gets the cars, the pets, and the house? What actions might influence child custody? How are bills divided and paid during the divorce? Structured in a question-and-answer format, this divorce handbook provides clear and concise responses to help build confidence and give the peace of mind needed to meet the challenges of a divorce proceeding.

• Language: English
• Publisher: Independent Publishers Group
• Release date: Nov 15, 2019
• ISBN: 9781950091249

Book preview

www.dickinsonwright.com

Introduction

Going through a divorce or any family law dispute is one of the most difficult roads to travel. Whether you are the one filing the initial petition or the one responding to the petition, you are facing a change in every single part of your life. No area remains untouched from these issues. Family relationships, friends, children, finances, social networks, personal belongings, a residence, job performance — all affect how your entire personal world is altered in divorce. Our purpose in writing Divorce in Arizona is to help you navigate through these uncertain waters.

Divorce and related family law disputes require making tough decisions, which are harder to make without an understanding of the process and procedure. Most people who are facing a divorce have never been to court. The prospect of filing paperwork, responding to paperwork, or going before a judge is often difficult to imagine. Divorce in Arizona was written to be a part of helping you move through this time of transition with more clarity and ease. It is not intended to be a substitute for advice from your lawyer and is not providing specific legal advice. Rather, it is designed to assist you in partnering with your lawyer to reach your goals in the resolution of your divorce, and related family law dispute, and to give you information about the process.

In writing Divorce in Arizona, we endeavor to explain each step in the hope that it will lead to your empowerment. The more control and clarity you feel over the process, the better you are able to make sound decisions regarding very challenging choices. We hope you will use this book as a guide to ask your lawyer questions; to understand something that may not be clear; and to begin seeing the big picture of the journey upon which you are about to embark.

This book is intended to not only assist you through this process, but also as a guide for professionals who support you—attorneys, mediators, therapists, clergy, financial advisors, and others who are called upon to serve people who are involved in a family law dispute. Although every case is different and your circumstances are unique, we hope that Divorce in Arizona will begin to answer your multitude of questions as you begin this brave road toward a new beginning.

Marlene A. Pontrelli, Esq.

Robert L. Schwartz, Esq.

1

Understanding the Divorce Process

At a time when your life can feel like it’s in utter chaos, sometimes the smallest bit of predictability can bring a sense of comfort. The outcome of many aspects of your divorce may be unknown, and that certainly increases your fear and anxiety. However, there is one part of your divorce that does have some measure of predictability and that is the divorce process itself. That’s where this book is designed to assist you in understanding the process and reducing some of the fear and anxiety about the process.

Going through the divorce process can be a frightening and often intimidating experience. Many people have never had to meet with a lawyer before, or been involved in any type of litigation. At the same time, you are facing the challenges of understanding the legal process, you are also trying to address the emotional issues that often come with the decision to terminate a marriage. The goal of this book is to make you more comfortable with the process and help you make intelligent and informed decisions about your future.

Your lawyer may explain many of the topics in this book in the first consultation. However, you likely will not remember everything that is said during that first meeting. Not only is there is so much information given during the first consultation, but you are often not in the proper emotional state to fully understand everything that is being said. Accordingly, this book will help to refresh some of the things that were discussed with your lawyer and also prompt you to ask questions about items you may not remember.

Most divorces proceed in a step-by-step manner. Despite the uniqueness of your divorce, you can generally count on one phase of your divorce following the next. Sometimes just realizing you are completing stages and moving forward with your divorce reassures you that you are on the correct path.

The first step is to develop a basic understanding of the divorce process. This will lower your anxiety when your attorney starts talking about depositions or going to trial and you feel your heart start pounding in fear or are anxious about what that actually means. Understanding the steps will also reduce your frustration about the length of the process because you will understand why each step is needed. Each step in the process is like climbing stairs that help you prepare for what comes next. More importantly, understanding the divorce process will make your experience of the entire divorce easier.

1.1What is my first step?

Find a law firm that handles divorces as a regular part of its law practice. The best recommendations come from people who have knowledge of a lawyer’s experience and reputation. Take your time in choosing a lawyer who is right for your case. This is one of the most important decisions you will make with respect to your divorce. Find an attorney you are comfortable discussing your case with as the attorney will likely learn more about your life than is known or shared with even close friends and family. Having a comfort level that this is a person you can speak with freely, who understands your situation, and who will competently represent you is important. The State Bar of Arizona has a list of attorneys who have been certified as specialists in family law if you need to obtain names of potential lawyers in the area of family law.

Even if you are not ready to file for divorce, you may find it helpful to call and schedule an appointment with a lawyer to obtain basic information about protecting yourself and your children. Many times, these initial consultations are to simply explore the process so you know what to expect, especially if you believe your spouse is planning on filing for divorce.

Ask what documents you should bring to your initial consultation. Write down specific questions to ask the attorney. By making a list of your questions to bring to your first meeting you will avoid leaving the office and forgetting to ask one of your questions. In addition to specific questions unique to your circumstances, your questions should include: the attorney’s approach to dividing assets, whether your case will involve a claim for spousal support, what you can expect in terms of a timeline, the attorney’s form of communication with clients, the amount of retainer required to start the case, and whether the attorney has the time necessary to devote to your case.

Following is a list of questions you may wish to ask your attorney:

What is your particular experience in family law and in handling this type of situation in particular?

Do you work evenings and weekends? If something occurs of importance over the weekend, what is your policy for addressing those issues?

Will you personally be handling my case or will other lawyers or paralegals be assisting?

What is the best way to communicate with you? (Telephone? E-mail?) How do you charge for each?

Do you have a policy on how long before you return a telephone call?

How many times do you expect that we will need to meet in person? Under what circumstances will we need to meet in person?

What is the specific divorce process and how long do you expect it to take?

What is the likely cost? (This will be a difficult question for your lawyer to answer. Be wary if you are given a specific cost since so many variables exist, which are unknown at the initial consultation. However, the lawyer may be able to give you an idea of what similar cases have cost, or the potential range of costs depending on whether the action is contested, settled, or litigated.)

Will there be a need to hire other individuals to assist with the divorce such as financial planners, valuation experts, forensic accountants, or vocational evaluators? If so, what are the likely expenses for these individuals?

If I do not have access to obtain all the financial information, how will the information be obtained?

Based upon the situation that I have explained, what do you see as the most challenging aspects of my case? How do you believe these challenges should be handled? What is the likely outcome?

Is this a potential case that may be good for mediation or some other dispute resolution process? Why or why not?

Are there any steps now that I should take to protect myself financially?

What are the first steps you would take if I were to retain you?

The lawyer you are considering may not have answers to every question, and rarely can they predict so early in the case what the likely outcome will be. The point of asking the questions, though, is not to necessarily obtain precise answers, but to find out if the lawyer you are consulting with is someone you feel will be able to represent your best interest in a way that is satisfactory to you.

1.2What steps are taken during the divorce process?

The divorce process in Arizona follows a particular pattern. Following is a list of the steps in the divorce process. The steps are a general overview and are explained in more detail throughout the book.

Obtaining Representation

Obtain the names of lawyers experienced in family law.

Schedule an appointment with an attorney for an initial consultation.

Prepare questions and gather needed documents for initial consultation.

Meet for initial consultation with attorney.

Make sure you are comfortable with the attorney you are interviewing. If not, take the time to meet with other attorneys, even attorneys within the same firm, until you feel you have the right attorney for your case. This is a journey you will be traveling with your attorney and it is important that there is the right fit for both you and the attorney. Because this is one of the most important aspects of your life and could affect how you live the rest of your life, choose your lawyer carefully to make sure they have the qualifications and time necessary for your case.

Pay retainer to attorney and sign retainer agreement.

Provide requested information and documents to your attorney.

Take other actions as advised by attorney, such as opening or closing financial accounts.

Starting the Process If You Are Filing the Petition

Attorney prepares petition for dissolution of marriage. The petition informs the court of the names of the parties, length of marriage, and if there are any minor children common to the marriage, as well as a basic statement of the issues to be decided and the petitioner’s position on the issues.

At the same time the attorney may prepare a motion for temporary orders if temporary orders for such things as temporary support for you or the minor children are needed.

You will review the petition and motion for temporary orders and sign a verification that the facts stated in each are true to the best of your knowledge and belief.

Attorney files petition with clerk of the court.

Attorney obtains hearing date for temporary orders if necessary.

The petition is served on your spouse. This can be service by a process server or your spouse may agree to voluntarily accept service by signing and returning an acceptance of service.

Mandatory sixty-day waiting period before a divorce can be finalized begins when a spouse is served or voluntarily accepts service.

Responding to the Petition if Your Spouse Filed First

Attorney prepares a response to the petition for dissolution of marriage.

Negotiations begin regarding terms of temporary order on matters such as custody, support, and temporary possession of the family home.

If there are minor children you must attend a court-approved parenting class within forty-five days.

Preparation of Case

Gather documents necessary for your case, which may include obtaining documents from third parties such as financial institutions.

Prepare an affidavit of financial information that lists income and expenses.

Prepare a list of property and debts.

Disclosures statements under Rule 49 of the Arizona Rules of Family Law Procedure must be prepared and submitted to the other side within forty days or as set by the court.

Resolution Management Conference

This is generally the first time the parties are in court. The parties and their attorneys attend a brief meeting with the judge to discuss potential issues and whether there is any resolution to the issues. If there’s no resolution, the judge will set a date for temporary orders, if necessary, and a trial date.

Temporary hearing held if no resolution on a temporary basis.

Both sides conduct discovery to obtain information regarding all relevant facts. Obtain valuations of all assets, including expert opinions if needed.

Confer with attorney to review facts, identify issues, assess strengths and weaknesses of case, review strategy, and develop proposal for settlement.

Spouses, with support of attorneys, attempt to reach agreement through written proposals, mediation, settlement conferences, or other negotiation.

Parties reach agreement on all issues.

Attorney prepares decree, property settlement agreement, and if there are minor children, a parenting plan. If there are retirement plans such as a 401(k) or a pension, a qualified domestic relations order needs to be prepared to divide the retirement funds so it is non-taxable event.

In the event of no settlement

A certificate of readiness and memorandum to set trial is filed if the court has not already set a court date.

Parties prepare for trial on unresolved issues.

Trial preparations proceed including preparation of witnesses, trial exhibits, legal research on contested issues, pretrial motions, trial brief, preparation of direct and cross-examination of witnesses, preparation of opening statement, subpoena of witnesses, closing argument, and suggestions to the court.

Meet with attorney for final trial preparation.

Trial is held.

The judge takes the matter under advisement.

The judge will issue a decree of dissolution in approximately thirty to sixty days.

Documents required to divide retirement accounts and ensure the payment of spousal and child support submitted to the court.

Attorney will prepare closing letter.

1.3Must I have an attorney to get a divorce in Arizona?

You are not required to have an attorney to obtain a divorce in Arizona. However, if your case involves children, spousal maintenance, significant property, or debts, you may find it easier to have an attorney than proceeding on your own.

If your divorce does not involve any of these issues, contact the self-help center at the superior court in your county or call the clerk of the court to request documents and instructions that may be used in filing your own case and proceeding on your own. In some counties, the forms are available online. A listing of available resources with applicable websites and telephone numbers is included the Resources section in the back of the book. A person who proceeds in a legal matter without a lawyer is referred to as being in pro per or pro se, on one’s own.

If you are considering proceeding without an attorney, you may want to at least have an initial consultation with an attorney to discuss your rights and duties under the law. You may have certain rights or obligations you are unaware of. Meeting with a lawyer can help you decide whether to proceed on your own.

1.4Is Arizona a no-fault state or do I need grounds for a divorce?

Arizona is a no-fault divorce state. This means that neither spouse is required to prove that the other is at fault in order to be granted a divorce. Factors such as infidelity, cruelty, or abandonment are not necessary to receive a divorce in Arizona. The only ground for the divorce is that the marriage is irretrievably broken.

This ground is stated in the initial petition. If you are responding to the petition for dissolution of marriage and also believe the marriage is irretrievably broken, you can simply agree in your response.

1.5What if my spouse alleges that the marriage is irretrievably broken but I do not think that it is?

The petition for dissolution will likely allege just a general ground for the divorce that the marriage is irretrievably broken. So, what can you do if you believe there is hope for reconciliation?

You can dispute that the marriage is irretrievably broken by denying the allegation in your response to the petition. In such circumstances, the court will then take evidence on this issue at the final hearing. However, it is virtually impossible to show that the marriage is not irretrievably broken unless both parties agree. However, talk to your lawyer about the possibility of filing a petition for referral to conciliation services.

If you are responding to the petition for dissolution and believe that there is a basis for reconciliation, you can file a petition for a referral to conciliation services. Conciliation services are available in some courts as a means to put the divorce action on hold until there is an opportunity to meet with a court representative and determine whether there is the ability to repair the marriage. For example, if the reason the parties are divorcing is due to disputes over financial issues, it may be that putting in place a financial plan and having both parties agree to the financial plan will avoid the necessity of obtaining a divorce. If a petition for conciliation services has been filed, no action can be taken with respect to the divorce until a notice is obtained from conciliation services that conciliation efforts have failed.

If the conciliation efforts fail and testimony regarding whether the marriage is irretrievably broken is required, all that is needed is testimony from one party stating that efforts at reconciliation were made, that those efforts were not successful, that further attempts would not be beneficial, and that the marriage is therefore irretrievably broken.

The judge may ask for information regarding the nature of the problems that led to the divorce or the types of reconciliation efforts made, such as using conciliation services or counseling with a therapist or clergy member.

There is one caveat unique to couples married in Arizona with respect to no-fault divorces. If the parties have a covenant marriage, certain other requirements must be met. A covenant marriage is one where the parties agree that they are committed to each other and will take all reasonable efforts to preserve the marriage and be bound by the law in Arizona related to covenant marriages. The parties can declare this desire to enter into a covenant marriage on the application for a marriage license. A husband and wife may also, after marriage, convert the existing marriage to a covenant marriage. If your marriage is a covenant marriage, the basis and timing for obtaining a legal separation or a divorce are limited. If you have a covenant marriage, speak to your attorney about the grounds and timing for terminating your marriage.

1.6How will a judge view infidelity or my spouse’s infidelity?

Because Arizona is a no-fault divorce state, there will rarely be testimony or evidence introduced about either spouse’s infidelity. However, this testimony may still come in if community funds were used to pay for such things as dinners, hotels, airfares, or gifts because the expenditure of those funds on an extramarital affair would be considered expenditures for a non-community purpose. In such cases, a claim can be made for reimbursement of one-half of the funds that were spent.

1.7Do I have to get divorced in the same state I was married in?

No. Regardless of where you were married, you may seek a divorce in Arizona if the jurisdictional requirements of residency are met and the marriage is not considered void in Arizona. The law that will be applied is Arizona law, not the law of the place you were married.

1.8How long must I have lived in Arizona to get a divorce in the state?

Either you or your spouse must have been domiciled (where you intend to permanently reside) in Arizona for at least ninety days prior to the filing of a petition for dissolution of marriage to meet the residency requirement for a divorce in Arizona.

If neither party meets the residency requirement, other legal options are still available for your protection. If you do not meet the ninety-day residency requirement, talk to your attorney about options such as a legal separation, a petition for legal decision-making and parenting time if there are minor children, or an order of protection.

1.9.What is a void marriage?

Arizona will not grant a divorce if the marriage is not recognized as a valid marriage in Arizona. A void marriage in Arizona is one between certain members of a family, such as between brothers and sisters, grandparents and grandchildren, aunts and uncles, and first cousins.

1.10My spouse has told me he or she will never give me a divorce. Can I get one in Arizona anyway?

Yes. Arizona does not require that your spouse agree to a divorce. If your spouse threatens to not give you a divorce, know that in Arizona this is likely to be an idle threat without any basis in the law.

Under Arizona law, to obtain a divorce you must be able to prove that your marriage is irretrievably broken. This is a legal term meaning that one sees no possibility of reconciliation between you or your spouse. In short, it is not necessary to have your spouse agree to the divorce or to allege the specific difficulties that arose during the marriage to obtain a divorce in Arizona, just that at least one party can state that the marriage is irretrievably broken.

1.11Can I divorce my spouse in Arizona if he or she lives in another state?

Provided you have met the residency requirements for living in Arizona for ninety days, you can file for divorce here even if your spouse lives in another state.

Discuss with your attorney the facts that will need to be proven and the steps necessary to give your spouse proper notice to ensure that the court will