Divorce can be incredibly complicated and emotionally difficult. Some cases are simple and resolve quickly, while others are long and drawn out, requiring mediation or even litigation. If you are going through a divorce in Arizona, or if you think you may be in the future, you should hire a divorce lawyer at your earliest convenience. You should also familiarize yourself with Arizona divorce laws so that you can make informed decisions.
Like most legal processes, a typical divorce case has a lot of moving parts, and no two cases are exactly alike. Read on to learn about some of the major concepts involved with divorce in Arizona.
Divorce and Property Division
Divorce is not uncommon in modern society. The divorce rate in Arizona is somewhere around 2.0 per 1,000 residents, and property division is one of the most-discussed aspects of divorce. Arizona is a community property state. This means that, as a general rule, on the date you marry, all property acquired thereafter belongs equally to both spouses. However, there are exceptions to this general rule.
One of the most common exceptions is the “sole and separate” property designation. If you can prove that you have kept certain property away from the joint contributions and efforts of a spouse to pay for, maintain, or improve it, then you may qualify to have that property designated as sole and separate property not subject to the equal division of property according to the community property rules. This might be important if you bring a home into the marriage.
You may want to keep your previously owned home out of the marital community designation so that you can keep it in the event of a divorce. There are a few other exceptions to the general rule, such as family heirlooms, gifts from one spouse to another, inherited items, and property received after a petition for dissolution of marriage is served. You should speak with an attorney about specific concerns you may have.
Grounds for Divorce
Arizona is a “no-fault” divorce-on-demand state. Grounds are not needed to obtain a divorce, and the reason for the divorce does not generally have any bearing on the final settlement. One spouse cannot prevent the other from obtaining a divorce.
Waiting Period
There is a mandatory waiting period of 60 days for divorce in Arizona, which begins on the date that the Petition for Dissolution of Marriage is served. During this time, the court cannot issue a decree of dissolution.
If everything is in order and agreed to (consent signed and filed with the Petition for Dissolution of Marriage) at the time of filing, a divorce could be final in approximately 61 days following the day of service or acceptance of service by the opposing party. However, there are no restrictions on the court, and some judges may take longer than others to sign their final orders.
Jurisdiction
One party must be domiciled in Arizona or be active military and be designated as having their domicile in the State of Arizona for at least 90 days prior to filing for a divorce in the state, in accordance with A.R.S. § 25-312.
Effect of Filing
Under A.R.S. § 25-315, once a divorce petition has been filed, the party filing the petition is bound by a statutory preliminary injunction. Once a respondent has been served or has actual notice of the filing of the petition, the party having been served with documents or notice is bound by the same statutory injunction.
That injunction protects the marital property from being transferred (sold or traded) or encumbered (pledged to be collateral for a debt). It also prevents the children from being removed from the jurisdiction of the court and enjoins the parties from harassment or assault upon a party or a child. The preliminary injunction also requires the parties to maintain all insurance coverage (whether health or automobile).
In summary, this means that after the petition has been filed and the other person has been served, neither party has the right to sell or transfer any of the community property, and each party is legally barred from letting insurance coverage lapse.
Child Custody
The standard for determining the parent with whom the children may live following a divorce is “the best interests of the child.” Contrary to popular misconceptions, there is no legal preference given to mothers in child custody matters. There is no presumption that one parent is better suited to be the custodial parent based upon gender.
The factors that the court is likely to consider in granting a custody arrangement are listed in the statutes of Arizona, namely A.R.S. § 25-401 and those following that section. If the parties seek joint custody, they must file a parenting plan under A.R.S. § 25-403.02.
Visitation
The legislature has outlined the general guidelines for visitation. However, the parties are generally free to fashion any agreement for visitation that will work in their situation.
Often, the parents who can exhibit the most flexibility in fulfilling their role as a parent and co-parent will have less stress and are less likely to return to court for intervention when disagreements occur.
Child Support
Child support obligations are calculated according to A.R.S. § 25-320. Once the base calculation is made, the parties may agree to less or more support. Any deviation from the statutory calculation must be approved by the court.
Child support continues for each child until they turn 18 years of age or graduate from high school, whichever occurs later. If a child graduates high school late, child support continues until they reach age 19.
Spousal Maintenance
Another traditional name for spousal support is alimony. This is the obligation of one spouse to provide for the basic needs of the other spouse during and/or after a divorce. Generally, the amount of support ordered will depend on the income of both parties, the debt from the marriage, and the ongoing need of the petitioning spouse. Spousal support is available to all qualifying spouses, no matter their gender.
Order Modifications
Often over the course of time, court orders become obsolete or unworkable because one or both parties will not comply with the order. If an order needs to be changed, then a modification of the order must be sought through the court. For example, as children age, their visitation needs may change, and the order establishing visitation or custody when the child is younger might not meet the child’s needs when the child gets older.
Also, modification to a child support or spousal support order may be needed based in part upon a change of circumstances. Getting a better order in place is the most effective way for each party to have an enforceable order that works for everyone.
Remember, until a court order is modified by another court order, the first order remains in place and must be followed. If you are attempting to modify a child support order, the evidence must demonstrate a substantial and continuing change of circumstances, such as the loss of income.
Paternity
Paternity must be established in order to pursue child custody or child support. A paternity action is sometimes required to establish who a child’s biological and/or legal father is. A medical test is used to determine the biological parentage of a child after the child is born.
A test is not always needed, however, and paternity may be established by agreement and affidavit. This is a sensitive area, and correct legal advice is essential based upon your circumstances.
Adoption
Our firm advises clients in step-parent adoptions. The firm is not a placement agency and does not provide leads or arrangements for adoptions. When one parent marries and wants their new spouse to adopt, we handle those step-parent adoption cases. The regulations for adoption are recorded under Title 8 Chapter 1 of the Arizona Revised Statutes.
The primary requirements for a step-parent adoption include that the child’s parent has been married to the step-parent for at least one year prior to the adoption and the child has resided with the step-parent for at least six months.
Termination of Parental Rights
When a child is adopted by a step-parent or another guardian, the parental rights of the biological parent must be terminated by formal court action. Often, a parent who is absent from the life of the child will suddenly express an interest when an adoption is proposed because they feel guilty for neglecting the relationship in the first place. A termination of parental rights action is commenced when a biological parent is not cooperative with a potential adoption action.
If a biological parent is cooperative and is willing to sign a document giving consent to the adoption, the termination of parental rights action is avoided, and the adoption can take place with the consent of the biological parent instead of proceeding against a parent to terminate their parental rights.
Enforcement of Court Orders
When someone willfully disobeys a court order, they are in “contempt of court.” It is through a court proceeding that a judge exercises their power to punish the non-compliant party. Sometimes the court will enter a penalty against a non-compliant party, or that person can be put in jail until they cooperate with the court’s orders.
If the non-compliance involves visitation or custody issues, there may be grounds for a change of the particular order involved. This may mean that the court could change custody, change visitation, change financial obligations, or take other necessary actions.
Since there are many possibilities, you should discuss your case with an attorney to determine whether there is contempt, whether enforcement can be done with or without court involvement, and whether it is strategically wise for you to make your move in court soon or at a later time.
Contempt Proceedings
When a person is served with notice that another party is complaining that they are not abiding by a court’s existing order, the court will issue a notice to appear for the contempt proceeding. At this hearing, the court will hear evidence on the nature of the non-compliance with a court order.
If convinced that the non-compliant party is acting willfully, the court may enter a finding of contempt. Then the court may fashion a punishment for the disobedience. A person accused of non-compliance would be wise to have an attorney represent them at the hearing before the judge.
Grandparent Rights
When parents of children do not include grandparents in the lives of the children, a grandparent may petition to have visitation rights established by a court order. Subject to a “best interest of the child” standard of evidence, grandparents can be successful in establishing visitation rights, particularly if their own child is incarcerated or non-functioning in the life of the child.
If there are grounds that would prevent a grandparent from visiting their grandchild, such as inappropriate lifestyle choices, drug addiction, or domestic violence, then a court will be reluctant to allow visits. State law anticipates that grandparents will be visiting when the parent through whom the grandparents claim a right of access to the child is visiting.
Interstate Custody
When parents live in different parts of the country, visitation and custody become difficult under most normal circumstances. A court order may be sought to adjust visitation periods, including frequency of visits and the place for visits to take place, to accommodate the reality of living apart.
If one parent has moved away from the other in an inappropriate manner, the court may compel the moving parent to return to the area where the other parent lives, or may change custody to the parent who did not move away.
Our firm has experience with cases that involve the Uniform Child Custody Jurisdiction and Enforcement Act and can help clients manage the unique challenges of creating and enforcing custody and visitation arrangements when they live in different states.
Legal Separation
When parties want to live apart but still maintain other aspects of marriage, a legal separation can be obtained from the court. Often this legal step is a prelude to a divorce action, particularly for parties who are attempting reconciliation but prefer to live apart. If one party objects to the legal separation, the court will convert the case into a dissolution of marriage (divorce) action.
Premarital Agreement
Often called a prenuptial agreement, a premarital agreement is a contract between two persons established before they are married. The agreement must be in writing and signed by both parties to be enforceable. This is an agreement that resolves issues of property division by contract before a divorce is contemplated.
Prenuptial agreements require the parties to disclose all of their assets to each other. When properly drafted and signed, these agreements are enforceable under general provisions of contract law. Although one attorney can represent both parties under certain circumstances, it is preferred that an attorney for one spouse drafts the agreement and that another attorney for the other spouse reviews the agreement and advises their client accordingly.
Relocation Following Divorce
If a party wants to leave the local area or move a significant distance from the marital home, they may ordinarily do so, provided that they do not have custody of a minor child who was a product of the marriage. If a custodial parent wants to relocate, and that would impact the other party or child in terms of their custody or visitation, then a court proceeding may be required to obtain permission from the court.
The court may have to make necessary modifications to existing orders related to custody and visitation. If the move is for an unnecessary purpose, the court may deny the party permission to move, and, in some cases, may even modify custody. Under A.R.S. § 25-408, so long as there are minor children involved, a party’s right to relocate is secondary to the stability of the child and the rights of the other parent.
FAQs
How Long Does It Take to Finalize a Divorce in Arizona?
The length of time it takes to finalize a divorce in Arizona can range from 61 days, which is the mandatory minimum waiting period, to a year or more, depending on the circumstances of the divorce and how long it takes to work out the terms of the dissolution. Uncontested divorces generally take much less time to complete than contested ones, as they do not require additional time for mediation or litigation.
Are Retirement Accounts Considered Community Property in Arizona Divorces?
Generally, retirement accounts are considered community property in Arizona divorces. The usual rule for dividing retirement accounts and other similar assets in divorces is that any contribution that was made over the course of the marriage is considered community property.
This means that, sometimes, a portion of the funds in a retirement account may be considered individual property. If you have specific questions about your situation, an attorney can help you understand your legal position.
Do Mothers Usually Receive Custody of Children in Arizona Divorces?
Mothers do not necessarily receive custody of children in an Arizona divorce. According to Arizona law, gender is not a factor when considering child custody options. There is a general misconception that mothers are more likely to get custody of children, but this is not true. Courts are bound to act in the best interests of children, so that is the chief consideration when deciding child custody arrangements.
What Court Handles Divorce Cases in Arizona?
In Arizona, divorces are the jurisdiction of the Superior Court, which is divided into county-based branches. For example, a divorce in Mesa would be handled by the Maricopa County Superior Court, and any necessary litigation would take place in a Maricopa County courthouse. If you are going through a divorce, it is prudent to hire an attorney with significant experience dealing with Arizona’s Superior Court.
Hire a Divorce Lawyer – Choose Ellsworth Family Law, P.C.
When your family situation is changing, and peace and stability are on the line for you and your children, you need strong legal representation that will not back down in the face of adversity. At Ellsworth Family Law, P.C., our Certified Family Law Specialists and the rest of our team have been advocating for Arizona families for more than 20 years. Contact us today to discuss your case and find out how we can help you.
