Your Guide Through A Difficult Process
Divorce is one of the most difficult processes you will ever experience. Deciding to end a marriage is a major life-changing event for you and your family, and should not be taken lightly. Often, people hear stories from friends, family, or neighbors about their experience with divorce, custody, child support or spousal maintenance.
While well intentioned, this advice is often misguided. Family law is a court of equity; there is no jury. This means, the family court judge must make decisions regarding your divorce based on fairness. The specific facts and circumstances of one case, is likely quite different from your own.
Find out more about:
DIVORCE AND FAMILY LAW
Orders of Protection
Prenuptial and Postnuptial Agreement
ARIZONA IS A COMMUNITY PROPERTY STATE
Arizona is one of ten community property states. Arizona law defines community property as all property acquired during the marriage by either spouse through the date of service of the Petition for Dissolution.
What this means is all property acquired during marriage until the other spouse is properly served with a petition for divorce is presumed to be divided equally. The exception to this rule is property acquired by gift, devise (a will) or descent (inheritance) during marriage. This is presumed to be the separate property of the spouse who acquired the property. Likewise, all property acquired prior to marriage or after service is presumed to be the separate property of one of the spouses.
Once property is considered community, the goal is to divide the assets acquired equally between the spouses. It is important that your property is properly characterized at the beginning of the divorce. Property includes, real property, which is your marital home, furniture, bank accounts, and investments and deferred compensation plans, such as a 401k or IRAs. Our office will sit down with you and determine which property may be subject to distribution and which should remain yours.
SEPARATION OR DIVORCE
The answer to whether you should get a legal separation or a divorce depends on what you are trying to achieve. A legal separation is almost identical to a divorce in that spouses conclude that continuing to live in the marital home together is impossible, but are unwilling to go so far as to dissolve their marriage. Instead, they would rather legally separate. In Arizona, a decree of legal separation may be sought if both spouses agree that the marriage is irretrievably broken or that they should live separately and apart from each other. A main difference between the two is that the parties will not be free to marry other people. Other than that, all the same issues must be resolved in legal separation proceedings – health insurance coverage for dependents, child custody and parenting time, division of property, maintenance, etc. However, should either party object to legal separation, the judge will not grant it. The court has authority to transform the request for legal separation into a divorce petition when one of the spouses wants to end the marriage.
petition and response
A divorce begins with the Petition. The party filing the Petition is called the “Petitioner” and the other party is called the “Respondent.”
Once those documents are filed, they must be formally delivered, or “served,” to the Respondent. This document notifies the court and your spouse that you want the court to end your marriage. It also lists what you are asking for, such as child custody, child visitation, child support, spousal maintenance (alimony), property division, attorney's fees and costs.
The Respondent is then required to file with the court and serve on Petitioner, within a specified time, a Response to the Petition. A Response is a legal document that substantially responds to the Petition, and includes an answer to that Petition by making specific requests to the Court. You only have 20 days if you were served inside Arizona and 30 days if you were served outside the state. Our office can respond quickly to ensure your property rights and ability to care for your children is protected. Waiting to answer may seriously impact your case. Failure to act quickly could result in a Default Decree against you. It is important to call our office so we can sit down with you and discuss your case as soon as possible.
If the Respondent does not respond to the Petition for Dissolution within that required amount of time, you can file for a “Notice of Default” with the Court. This has the effect of asking the Court to grant everything that you asked for in your Petition. If the Respondent continues to not respond, then the Judge will enter a “Final Judgement” in the form of a “Decree of Dissolution”.
If Respondent does file a response, the court may require the parties to attend an Early Resolution Management Conference to determine whether they agree on any issues. If the parties cannot agree, the court will set a trial date. The dissolution then enters the discovery process, which includes depositions, written questions called interrogatories, and document production. During this phase, the parties gather evidence regarding outstanding issues, such as support and asset and debt division.
The length of time to finalize a dissolution depends on whether the parties agree on the matters at issue. If the parties agree, the dissolution becomes final sooner; if they do not, the dissolution takes longer to finalize.
FILING OF THE PETITION FOR DISSOLUTION OR LEGAL SEPARATION
Arizona has specific rules governing who may obtain a divorce from the state. Our office can quickly determine if you meet Arizona guidelines or not. One of the parties must be a resident of the State of Arizona for a period of ninety days prior to filing for the petition for divorce. If you or your spouse does not meet the residency requirements, your case will likely be dismissed for lack of jurisdiction. In addition, you must meet these requirements for the Court to hear your case:
prospect of reconciliation has been attempted and has not worked or will not work;
the marriage is irretrievably broken; and
the marriage is not a covenant marriage or if it is a covenant marriage, the requirements to obtain a divorce have been met. Very few marriages are covenant, you would know if you had one.
The Petition is the first opportunity to make requests to the court to address issues such as Community and Separate Property, Legal Decision Making & Parenting Time, and Maintenance. Each family law case is different. Our office will sit with you and evaluate the specifics of your case so that everything is addressed in this initial filing with the Court.
SERVICE OF PETITION
After the documents required to file for divorce have been filed with the court, our office will notify the other party that a Petition has been filed. Service is the legal term which means that the Respondent has been given notice that your case has been filed.
There are several ways to perform service on an individual:
Service by Acceptance
Service by Acceptance is the simplest way to achieve proper service. If you and the other party are amicable, you can hand deliver or our office can mail all the required documents for filing. Included with the documents is an Acceptance of Service form which the party completes and mails back to our office. This saves the often unnecessary expense and emotional feelings involved when someone is served by a Process Server or Sheriff.
If there is Domestic Violence in the relationship, hand delivering the documents is not advisable. Receiving divorce papers is an emotional experience for anyone. If you or your children could be in danger by hand delivering your Petition, it is always advisable to allow our office to ensure service safely for you and your family.
Service by Process Server
Service by Process Server is still the most common way to achieve service. When our office serves by Process Server we hire a process server to physically deliver the documents to the opposing party. The process server then submits to our office an Affidavit of Service with the Court declaring under oath that the Respondent received their copies of the Petition.
Service by Sheriff
Service by Sheriff is the least efficient way to achieve service. Our office will contact the local Sheriff’s department where the other party lives and the Sheriff’s department in that County will deliver the documents.
RESOLUTION MANAGEMENT CONFERENCE
After the Petition for Divorce or Legal Separation has been answered, the Court will schedule a Resolution Management Conference. This is typically a short hearing for the Judge assigned to your case to meet the parties for the first time.
The Judge assigned to your case Orders the parties produce Initial Disclosures and a Proposed Resolution Statement prior to the hearing. Our office will draft these filings for you. Some are filed with the Court and some are sent to the opposing party. Prior to the hearing our office will also attempt to reach a settlement on the issues in your case.
Temporary orders (also called pendente lite orders) set the rules while the case is pending. Either spouse can ask the court to make temporary orders stating, for example, who stays in the house, who is responsible for the children, who pays which bills and restraining inappropriate conduct. It is in both spouses' best interest to agree upon reasonable arrangements while the case is pending rather than incur additional legal fees and add to bad feelings by having to go to court for temporary orders. In Arizona, when children are involved, the court will automatically create temporary orders for child support when a divorce proceeding is filed or the other spouse is served. However, this process can take several months to be completed. To have this issue settled more quickly, the spouses can make a temporary order themselves and file it with the court.
DIVISION OF PROPERTY
Arizona is a community property state which means that all property acquired during marriage until a party is served with the divorce paperwork is presumed to be community property. All property acquired before marriage or after service of paperwork is presumed to be separate property. (All property acquired by gift, devise or will during marriage is also presumed to be separate property as well.)
Most property is fairly easy to characterize but it is important to determine the distinction between community and separate property at the beginning of the divorce, because property that is considered community property will be divided equitably between the spouses.
Each spouse is entitled to information from the other about the case. The legal procedures for obtaining that information are called Discovery. Discovery may be a simple, speedy process or one consuming a great deal of time, energy and money. Often times the depth of Discovery depends upon the size and value of the estate and the length of the marriage.
There are several different Discovery procedures, sometimes referred to as Discovery Devices. Your attorney will usually submit and receive information on your behalf during Discovery, but he or she will need your input along the way.
Interrogatories. You can use an interrogatory to send a list of questions to your spouse. Your spouse must respond with formal written answers.
Request for Production. You can use a Request for Production to ask your spouse for specific documents.
Deposition. You can use a deposition -- sometimes called an examination before trial – to ask spouse or other people questions in person and under oath. This usually takes place in a lawyer’s office. While a court reporter takes down what is said and then prepares a transcript. Lawyers ask the questions, not the spouses, and if your deposition is to be taken, you will have advance notice and you will have time to prepare with your lawyer.
Your lawyer may also be able to conduct discovery informally, without the formal procedures described above. Informal discovery is almost always more efficient and therefore less expensive than formal discovery.
Most lawyers and judges agree that it is better to resolve a case by agreement than to have a trial in which a judge decides the outcome. When spouses craft their own divorce agreement, it’s called a negotiated settlement. Negotiated settlement provides much more privacy and control than a trial. Also, ex-spouses are more likely to adhere to their own agreements, rather than orders imposed on them by a judge. Voluntary compliance is important because enforcement procedures available from the court are usually expensive and sometimes inadequate. For these reasons, negotiating a settlement is often to both parties advantage.
In Arizona, mediation may be ordered by the judge in an attempt to settle many if not all of the issues pertaining to the dissolution of marriage.
Although your lawyer may recommend that you accept or reject a particular settlement proposal, the decision to settle or not to settle is yours. Your lawyer cannot and will not make that decision for you.
If a case is settled by agreement early on in the process you may never see the inside of the courthouse. However, you and your lawyer will still have to follow additional legal procedures in order to turn your agreement into a judgment and end your marriage.
If you and your spouse cannot settle your case, it will go to trial. At trial you each tell your story to the judge (divorce trials in Arizona are done without a jury). It is told through your testimony, the testimony of other witnesses, and documents called Exhibits.
Trial is likely to be expensive and unpleasant. However, it can be the only alternative to never-ending unreasonable settlement demands. Still, trials are risky. No lawyer can predict the outcome of a trial because every case is different. In a trial, a judge – who is a stranger and who may have a viewpoint, a temperament, and values very different from yours – tells you and your spouse how to reorder your lives, divides your income and assets, and dictates when you may see your children.
Sometimes, a trial does not end the case. If either spouse is unhappy with the outcome of the trial, he or she may appeal the decision in a higher court. An appeal adds more time and expense to the divorce process and is hard to win.