Divorce, legally known as “dissolution of marriage,” is the process of ending a marriage. In a divorce, the parties must decide how to divide up their money and property, how they will co-parent their children, and how to ensure the financial support of the children. One spouse may need ongoing support too.
On this page, we first cover some of the major concepts involved in a divorce. Then we discuss the technical process. Finally, we address some of the more frequent divorce-related questions.
Important Concepts in Divorce
Property Division: Arizona is a Community Property State.
When you get married in Arizona, you stop being an individual, legally speaking. You and your spouse become a “community.” For example, when you go to work after you get married, it’s not YOU going to work, it is the MARITAL COMMUNITY. YOU are not earning a paycheck; the MARITAL COMMUNITY is earning a paycheck. Anything you do, you do for the marital community. This is very important when it comes to dividing property and debts during a divorce. Even if one spouse stayed home and did not work during the marriage, that spouse is still entitled to a portion of the money and assets accumulated during divorce.
The general rule is that anything acquired during the marriage is community property. A.R.S. 25-211. Each spouse has a half interest in that property, meaning that each person is entitled to roughly 50% of anything acquired while the couple is married. A.R.S. 25-318. This same principle is applied to debts. Each party owes half of any debts acquired during the marriage. A.R.S. 25-215. Debts or assets acquired outside of the marriage are separate property, meaning they are owned or owed only by the spouse that acquired the property or incurred the debt. A.R.S. 25-213.
The beginning of this community occurs the moment that the parties get married. A.R.S. 25-213(A). It lasts until a Petition for divorce or legal separation is filed AND SERVED on the other party. A.R.S. 25-213(B). There are some exceptions to the community property rule. For example, if something is received as inheritance or as a gift, and it isn't otherwise converted to joint property, it's separate property. A.R.S. 25-211(A).
This concept seems simple enough. You divide up everything you acquired by half and everything you owe by half. But, it can get more complex than that. For example, imagine that you acquire a house before the marriage. You take out a loan to buy the house. Because the house was acquired before the marriage, it's separate property. Once you get married you go to work and earn a paycheck. That paycheck was acquired during the marriage, so it's community property. Now you take the paycheck (the community asset) and use it to pay the mortgage on your home (the separate asset and liability). In other words, you've taken a community asset and merged it with a separate asset. And the house not only continues to stay afloat, but also grows in equity. The result is that the community is entitled to some reimbursement for what it has contributed to the separate asset. Calculating the specific amount of the interest requires a calculation used by the court that's more complex than just an equal division of property. Thus while facially simple, community property can become quite confusing.
Note also that you can change these normal community property rules by entering a prenuptial or a postnuptial agreement.
Arizona is a No-Fault State.
In order to get a divorce, you have to have “grounds” for the divorce. In the past, grounds to get a divorce generally required that you show some sort of extreme misconduct or “fault.” Most states still have such grounds. Examples include:
- One Spouse Being Imprisoned/Incarcerated
- Abuse/Cruelty/Domestic Violence
- Substance or Alcohol Abuse
- Sexual harassment
Today in Arizona, grounds for divorce don’t require that you show these sorts of fault reasons to proceed with your case . Either spouse can initiate a divorce at any time that someone feels the marriage is “irretrievably broken.”
Note that there is an exception to this if you have a “covenant marriage.” Covenant marriage is a contractual way of imposing fault back into a marriage. Thus, if you have a covenant marriage (which would be stated on your marriage license), then you need to show fault. Note, that some people wonder if they have a covenant marriage or not. Generally, you will have gone through counseling and various other steps to get the covenant marriage prior to the marriage. In other words, if you're not sure if you have a covenant marriage or not, you very likely do not have one. Note also that a covenant marriage is unique to only three states in the United States: Arizona, Arkansas, and Louisiana.
What issues must be decided in a divorce?
Division of Property
If children are involved:
Legal Decision Making and Parenting Time
What is the process to get divorced?
File a Petition for Dissolution
In a general sense, a divorce case is essentially a lawsuit between the two spouses. A divorce is started when one of the parties files a petition for dissolution of marriage. The Petition is often pretty basic. Arizona requires “notice pleading.” This means the petition must contain sufficient detail to put the other party on notice about the issues. For example, the petition only need state that there is property to be divided; it does not need to list the property in great detail, or specifically describe how the property should be divided.
The petition is filed with the superior court in the county in which you reside. If you and your spouse reside in different counties, you may want to speak with an attorney to determine the appropriate county in which to file.
When you file the petition for dissolution, you will need to pay a filing fee to the court. If you do not have the filing fee you can apply for a fee deferral. Fee deferral applications are available online at some of the Clerk of Court websites, and there are paper copies available at any of the Superior Court filing counters. If your fee deferral application is granted, you will not have to pay the filing fee at the time you file. When your case is concluded, and depending on your specific financial situation, your fee may be waived or you may need to set up a payment plan to pay the filing fee over time.
Serve the Petition for dissolution
Once you have filed a petition for dissolution, you must provide your spouse with formal notice of the petition for dissolution. This notification process is called “service of process”, or more informally, serving the petition.
You can serve the petition for dissolution a few different ways which are described in our post and video on service of process.
Response to the petition for dissolution
Once your spouse is served with the petition for dissolution, they will have 20 days to respond if they were served in Arizona, and 30 days to respond if they were served outside of Arizona. Like the petition, the response is usually pretty basic, and either admits or denies the allegations contained in the petition. If your spouse fails to respond in the allotted time, you may ask for a default judgment.
Disclosure and Discovery
When you are involved in a divorce, you are required to disclose certain minimum information to your spouse. Your spouse is likewise required to do the same. The Arizona Rules of Family Law Procedure set forth the minimum disclosure requirements. For example, you are required to disclose your last 3 years of tax returns, your two most recent pay stubs, and 6 months of bank account statements.
In addition to the mandatory disclosures mentioned above, you will also have an opportunity to “discover” information you think is relevant to your case, above and beyond the mandatory minimum disclosures. There are several tools available to get the information you want:
An interrogatory is a question. In the context of a court case, interrogatories are questions presented to the other party that that party must answer under oath. There are “uniform interrogatories,” which are a standard set of 26 questions set forth in the Arizona Rules of Family Law Procedure. You may also ask “non-uniform interrogatories,” which are questions you make up. The party who is asked to answer the interrogatories has 40 days to provide answers.
Request for Production of Documents and Things
You may also request the production of documents or things (most commonly documents). Things you might request in the context of a divorce could include business records and financial statements, information on investment accounts, medical records for a child, or anything else you feel is relevant to your case. The party who is asked to produce documents or things has 40 days to do so.
A subpoena is issued by the clerk of court and commands a person to appear in court. If you have a witness you want to appear in court to answer questions during a trial, you may need to serve a subpoena on them.
A subpoena duces tecum (pronounced suh-pee-nuh due-case tay-cuhm) is used to get a non-party to produce documents. It is served together with a subpoena, and it commands the person who has the documents to appear at a certain date, time and location with the documents. It also provides that if the person produces the documents in advance of that date and time, the person does not need to appear.
You may also depose a party. A deposition involves asking another party questions that they must answer under oath. A court reporter is present to transcribe the deposition. Depositions are useful for several reasons. For example, the scope of a deposition is broad. You can ask questions during a deposition that might raise an objection at trial, but during a deposition, the party being deposed must still answer the question, even over an objection. Depositions are a good way to get information too. Perhaps you need to know where a party banks so that you can get their bank records.
Depositions are also a good way to nail down a party’s story, which serves two purposes. First, once a party provides an answer under oath at a deposition, they are committed to that answer. If they change their answer later, you can reference the deposition and impugn their credibility. Second, a general rule of thumb is you do not want to ask a question at trial that you don’t already know the answer too. Conducting a deposition gives you a preview of the trial.
Settlement discussions and mediation
You can settle your case by agreement with your spouse at any time. If you settle your case by agreement, then you can avoid going to court. There are a number of services available to help you and your spouse reach agreement, collectively referred to as alternative dispute resolution, or ADR.
Concluding the divorce
Whether you reach an agreement or not, your case is not formally concluded until the court issues a final decree of dissolution. There are three ways you can get a decree of dissolution.
A consent decree involves both spouses agreeing to the terms of the divorce, and then asking the court to enter a judgment based on that agreement. This approach does not generally require a hearing in the court.
A default occurs when one spouse files a petition for dissolution and the other spouse never files a response. In such a case, the court will generally divide property in accordance with the requests of the filing spouse. This kind of approach will generally require a hearing at the court.
If the parties cannot agree, a trial will be set where the parties can present their arguments and evidence to the court. The court will then decide for the parties how the property will be divided, who will make decisions about the children, where the children will spend there time, and who will be paying spousal maintenance. The court may even order one party to pay the other party’s attorney’s fees and costs. As you can imagine, going to trial can be unpredictable and carries a certain amount of risk.
Parent Information Class
If you have children, then Arizona law requires that you take a parent information class. The class is designed to teach you about the effect a divorce can have on your children.
Both parents must attend within 45 days of the date the petition is served on the responding party. The class costs $50 and has to be taken through an approved provider. The Superior Court maintains a current list of approved providers on its website.
Also of note, is that you are prohibited from taking the class with your spouse. The court does this because, many divorcing couples would be uncomfortable and therefore distracted and because divorce frequently becomes harassing or otherwise antagonistic.
The classes are typically 4 hours long. Once you complete the course, you will be given a certificate of completion which must be filed with the court.
There is currently an online version of the class, but you should check with your specific county to ensure that it will be accepted before taking it.
When you file your divorce petition with the court, the court will enter a preliminary injunction. The preliminary injunction is an order requiring that neither spouse do anything out of the ordinary with property (such as hide or sell it). It also requires, amongst other things, that neither spouse harass the other or leave the state with any children the couple may have.
How long does a divorce take?
In short, at the very minimum, 60 days, but probably longer.
How do I get my spouse to move out of the house?
You have three options here. 1) You and your spouse can agree that your spouse will move out. 2) You an file a motion for temporary orders, asking the court to order that you have exclusive use and possession of the marital residence. 3) If domestic violence is an issue, you could obtain an order of protection that excludes your spouse from the marital residence. It is not unheard of for litigants to abuse this last option just to get their spouse out of the house.
I need money now–I can’t wait until the divorce is finalized. How do I get money?
This comes up frequently. If your spouse has control of marital assets like the bank account or investment accounts, or if your spouse works and you do not, you can file a motion for temporary orders asking the court to enter orders awarding you spousal maintenance or dividing property while the divorce is pending. This can give you access to resources to litigate the divorce.
Can I move while the divorce is pending?
You can move while the divorce is pending. If you want to move with your children, that is a different matter. You could move locally while the divorce is pending, but you cannot take your children out of state while a divorce is pending without an agreement with your spouse or an order from the court.
Is there common law marriage in Arizona?
Arizona does not generally recognize common law marriage. Learn more here.