Arizona Divorce Basics
Before making a decision on Arizona divorce, take time to understand the basic process and the key issues that must be addressed. For most people, divorce is uncharted territory and it can be a bit frightening. Obtaining information about the process can ease this anxiety considerably. Arizona Divorce Basics is the best place to start.
In this discussion, we introduce several important concepts including:
- The difference between divorce and legal separation;
- The difference between a no-fault divorce and divorce from a covenant marriage;
- The difference between an uncontested divorce and contested divorce;
- The special characteristics of a military divorce;
- The availability of divorce self-help; and
- Continuing health insurance coverage under COBRA.
Divorce Terminates the Marriage Contract
From a legal standpoint, divorce is the method of terminating a marriage contract between two individuals (the parties). Divorce gives both spouses the right to determine the future care and custody of their children, the right to divide their marital assets and debts, and the right to arrange for child support and spousal maintenance (similar to alimony). Once the divorce is final, either is free to marry someone new.
While state laws vary in how they address these issues, the basic principles followed by the courts when considering requests for divorce are relatively uniform. If you are thinking about filing for divorce in Arizona, then speak to a divorce attorney with the Stewart Law Group. We can help.
Legal Separation in Arizona
Some spouses may conclude that continuing to live in the marital home together is impossible. But they 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. Legal separation is also possible when the couple has minor children. Although the parties will not be free to marry other people, 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, and so on.
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.
If you have concerns about finding a legal separation lawyer, you can relax. An attorney with the Stewart Law Group can assist you in legal separation as well as divorce.
Divorce That’s No One’s Fault
A majority of states have at least one form of “no fault” grounds for divorce while other states, including Arizona, are considered to be no-fault jurisdictions. (In Arizona, the only exception is divorce from a covenant marriage, discussed below).
This is what every spouse needs to know about no-fault divorce in Arizona. The no-fault dissolution is a marital termination proceeding wherein divorce is granted without either spouse alleging and proving marital fault, or guilt. Meaning that adultery, abandonment, domestic violence, incarceration, or other fault-based allegation is not necessary as legal grounds for obtaining a no-fault divorce in Arizona. Instead, one of the spouses must state under oath that the marriage is “irretrievably broken” with no reasonable prospect of reconciliation. Additionally, either spouse may obtain a divorce despite the other’s objection or request for legal separation. Dissolving a marriage by mutual consent is not required for a no-fault divorce.
Divorce from a Covenant Marriage
Some states require legal grounds, or reasons, for terminating a marriage. For example, a spouse might allege adultery as legal grounds for divorce. These are known as fault-based divorces because marital misconduct must be asserted and then proven with evidence. Under Arizona law, similar legal grounds must be alleged to support a request for divorce from a covenant marriage.
Compared to a standard marriage, there are additional requirements for entering into a covenant marriage, such as premarital counseling. There are also specific statutory grounds for divorce from a covenant marriage. For further discussion about the grounds for divorce from a covenant marriage and other dissolution details, take a look at Arizona Divorce Details.
Difference Between Contested and Uncontested Divorce
Before a divorce will be granted, there needs to be a clean slate. Matters of spousal maintenance, assignment of separate assets, division of community property and pensions, legal decision-making custody, parenting plans, and child support obligations must all be resolved.
Divorcing spouses who agree to a settlement, in writing, on all of those issues will likely be granted an uncontested divorce. When the Respondent does not contest any of the matters raised in the petition, then the divorce proceeds uncontested, or unchallenged. An uncontested divorce avoids adversarial litigation and trial because there are no disputed issues for the court to decide.
Conversely, if spouses do not reach agreement on all the basic issues, then a contested divorce ensues. If Respondent disputes any family matter raised in the petition, then the divorce is contested. In that case, the parties proceed through all phases of litigation. The spouses may voluntarily participate in Alternative Dispute Resolution (ADR), such as mediation, or they may be ordered into ADR by the court. The settled issues are removed from the trial agenda; the outstanding issues are decided after a bench trial before the judge. (There is no jury in an Arizona divorce.)
Military Divorce in Arizona
The term “military divorce” is simply used to describe an Arizona divorce wherein one or both spouses is or was a member of the uniformed services. Military divorce is a descriptive term, not a legal one.
Because of military service, many family decisions are unique to service members or retired military personnel. There are concerns over the division of military pensions, health insurance for former civilian spouses and dependents, long-distance visitation during deployment, devising a parenting plan, and managing court appearances when stationed overseas, among other important matters.
Are there military overtones to your marriage? Talk to a military divorce attorney who is up-to-date with current federal statutes, military regulations, jurisdictional child custody issues, and the Hague Convention.
Self-Help: Maricopa County Superior Court’s Self-Service Center
The Maricopa County Superior Court’s website provides do-it-yourself court forms for divorce and many other civil matters. Every spouse should consult with an attorney before making important decisions about child custody, property division, and financial support. But if you would prefer to handle your divorce without legal representation, you can utilize these forms.
If you want a little more help, subscribing to the Arizona Divorce & Child Custody Coach is another do-it-yourself alternative. Every subscription includes the Arizona divorce resource center, forms and instructions, checklists, and unlimited email access to an Arizona attorney.
Continuing Health Insurance Coverage Under COBRA
Arizona divorce often has an impact on employer-provided group health or dental insurance coverage for dependants. Therefore, insurance availability, terms of coverage, and replacement costs should be factored into the parties’ divorce just like assets and debts are. For example, health insurance coverage should be discussed when parties negotiate spousal maintenance or a parenting plan for their children.
Furthermore, if a spouse’s employer is subject to the federal Consolidated Omnibus Budget Reconciliation Act (COBRA) provisions (not all employers are), then after the divorce is final health insurance coverage may be continued for dependents as qualified beneficiaries (the children or a former spouse). Both divorce and legal separation are qualifying events that trigger COBRA. As a qualified beneficiary under COBRA, the nonemployee-spouse has the right to pay the premiums and continue under his or her former spouse’s employer-provided group health insurance. Insurance coverage can continue under COBRA for 18 months, 29 months, even 36 months after the divorce, depending upon the facts. COBRA requires proper notice of the divorce or legal separation followed by an election period. The employee-spouse, non-employee spouse, or qualifying dependent must notify the group health benefit plan administrator. Thereafter, the qualified beneficiary must be given an election period of at least 60 days to choose continued health care coverage under the group plan or not.
The health benefit provisions in COBRA amended the Employee Retirement Income Security Act (ERISA), the Internal Revenue Code, and the Public Health Service Act.