First, a quick note before we get started. Please keep in mind that each of the concepts discussed below is also covered in greater detail on other pages. At the end of this discussion, you will find quick links to related articles for easier navigation through the material. Now then, let’s get started.
In Arizona, the divorce terminates the marriage contract between husband and wife, giving each party the legal right to marry another person. The divorce will divide marital assets and debts, will determine child custody and parenting time, and will establish child support and spousal maintenance. It is our Arizona Superior Courts (the county courts) that have subject matter jurisdiction over family law matters, including legal separation, annulment, divorce, child custody, child support, and spousal maintenance. Arizona Constitution, Article VI § 14.
Like most states, Arizona’s “no fault” divorce statutes allow for the marriage to be dissolved without allegations and proof of fault, taking the blame out of the divorce process. Consequently, there is no need for the court to decide which spouse was the source problem for the failure of the marriage. With a no fault Arizona divorce, the marriage is dissolved because it is irretrievably broken. There is one form of marriage, however, that does require certain allegations and proofs before the marriage may be dissolved – that is, the covenant marriage.
The “covenant marriage” became an option for Arizona couples in 1998, essentially adding greater formalities to the creation of a marriage and more requirements to the dissolution of a marriage. (If you are unsure about whether yours is a covenant marriage, it will be stated as such on your marriage license.) One important prerequisite to the covenant marriage is premarital counseling, which serves to underscore the seriousness of the marriage vows and the long-term commitment being entered. When both spouses agree to the dissolution of their covenant marriage, then the divorce decree will be issued. But when both spouses are not in agreement, the spouse seeking to terminate the covenant marriage must allege and prove at least one of the following:
Sometimes, people simply do not want to terminate the marriage – they would rather legally separate from each other instead. In Arizona, a “legal separation” may be sought if both spouses agree that the marriage is irretrievably broken or that they want to live separately and apart from each other. Importantly, a legal separation is possible even when the spouses have minor children. When one party objects, the court will not grant the legal separation. Additionally, the court has authority to transform the Petition for Legal Separation into a Petition for Dissolution of Marriage. If you’re concerned about finding a legal separation attorney, you can relax — a family law attorney at Stewart Law Group can represent you in a legal separation, as well as in a divorce.
For a divorce action to be commenced in an Arizona Superior Court, one of the spouses must have been domiciled in Arizona for 90 days or more. A.R.S. § 25-312. This is a jurisdictional requirement without which the Arizona Superior Court would have no legal power to dissolve the marriage. In general, “domiciled in Arizona” means at least one spouse is a permanent resident here. For those who leave the state temporarily or who have second homes elsewhere, Arizona must be the place of permanent or indefinite domicile.
Establishing domicile is a little different with military personnel. When a service member is stationed here, that spouse’s military presence in Arizona for 90 days is sufficient to satisfy the residency requirement. This is so, even though the service member is not technically a permanent resident (because he or she does not intend to reside here indefinitely or permanently).
When there are children of the marriage, the Arizona Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) adds an additional residency requirement. The family law judge does not have jurisdictional authority to decide matters over child custody and child support without a greater period of residency – that is, six months.
The Arizona Superior Court’s subject matter jurisdiction over child custody and child support issues depends upon the answers to the following questions:
If the Superior Court does not answer in the affirmative to one of these threshold jurisdictional questions, then the case with children will be dismissed. The court is not really concerned with what the parties want in this regard because there is a bigger issue involved. If the court lacks subject matter jurisdiction, then it has no legal authority to render a decision over child custody and child support — lack of subject matter jurisdiction requires dismissal of the action.
To satisfy venue requirements (where in Arizona the case should be heard), the Petition for Dissolution of Marriage is filed in the county where the Petitioner resides. There is some flexibility to the venue requirement — the parties may consent to a change of venue, or venue may be changed when there is good and sufficient cause why a different county court should hear the case. A.R.S. § 12-406.
The Petitioner’s statements in the Petition for Dissolution of Marriage must be verified. This means the Petitioner swears under oath that all of his or her statements are true, correct, and complete to the best of the Petitioner’s knowledge and belief. The verified statements made by the Petitioner include the following:
The Petition for Dissolution of Marriage is filed with the clerk of the Superior Court along with the filing fee (currently $321) at one of several branches conveniently located throughout the county. Once the petition is filed, the other party must be notified of the family law case and summoned to the court.
If you wish to have your name restored to your maiden name or other previous name, then you can request a name change in the petition. If, at some point after the divorce is final, a former spouse decides to change his or her name, then an “Application for Change of Name for an Adult” can be filed with the Superior Court as a separate civil action.
To comply with Rule 4 of the Arizona Rules of Civil Procedure, the Petition for Dissolution of Marriage and court summons must be served on the other spouse. This is referred to as “service of process.” If service is not accomplished as required by law, then the court’s orders are invalid and unenforceable. Service of process, then, is not something that should be done, it is something that must be done. Proper service according to Rule 4 is essential for the case to advance. The opposing party is entitled to legal notice of a lawsuit so that he or she can respond within the requisite time period and protect his or her rights and interests. The requirement of proper notice of the lawsuit by service of process ensures fairness in the proceedings. “Proof of service” is evidence filed with the court that the other party was properly served by one of the following four methods:
Once the other party has been served with the Petition for Dissolution of Marriage and summons, he or she has 20 days to file a written response (30 days if served out-of-state). The other party’s response is an acknowledgement that the divorce procedure has begun.
When the other party files a response to the petition, but does not contest any matters raised in the petition, then it is an uncontested divorce. If the respondent does take issue with a matter raised in the petition, then the divorce is contested.
When there is no time extension and the other party does not file a responsive pleading within the requisite time period, the Petitioner may apply for a default divorce judgment. Arizona has a 60-day waiting period before the court will “consider a submission of a motion supported by affidavit or hold a trial or hearing on an application for a decree of dissolution of marriage.” Think of this as a cooling off period for both parties. A.R.S. § 25-329. The 60-day period begins when the other party is served (or signs an acceptance of service).
Default divorces are certainly not uncommon in Arizona, particularly when there are no children of the marriage. Sometimes, a default divorce is the result of an “off the record” agreement between the parties on all of the matters involved in their marriage. If the spouses are in complete agreement, then the other party may simply refrain from responding to the petition because there is nothing to dispute.
When no responsive pleading is filed by the other spouse (who was properly served with process under Rule 4), the Petitioner may file an “Application and Affidavit for Default” and wait another 10 days. When the application is filed with the court, the Petitioner must mail or hand-deliver a copy to the other party. Thereafter, the Petitioner schedules and appears at a default hearing with all of the required court papers. Along with the application, the documents that the Petitioner brings to the default hearing include:
For certain parties, a default hearing may be avoided by filing a Motion for Default Decree without a Hearing. If the motion is granted, the divorce process continues by mail. When all of the documents are submitted and the court’s review process is complete, the default divorce is ordered and a copy of the final decree is mailed to the parties.
When a response is filed with the court by the other spouse, then the divorce process continues. In Arizona, every family law case is heard and tried by a Superior Court judge. Issues involving spousal maintenance, child custody and access, asset and debt division, and child support must be resolved before the divorce will be granted and a final divorce decree issued.
When the spouses are able to enter into a written settlement agreement, they may be granted an uncontested divorce by the family law judge, avoiding further litigation and trial. With a consent decree, the case is fully resolved and finalized. If the spouses are unable to reach an agreement on all basic issues in the divorce, then the parties proceed through all phases of litigation, including trial. Throughout the divorce process, the parties may avail themselves of Alternative Dispute Resolution (ADR), such as private mediation, to resolve as many issues as possible without court intervention. If a dispute involves children, the judge may order ADR through the court’s conciliation services.
There is one more thing we’d like to mention about divorce and legal separation, and it involves health insurance. When an employed spouse has health insurance through his or her qualifying employer, the federal Consolidated Omnibus Budget Reconciliation Act (COBRA) may prevent the other spouse from losing group medical coverage in a divorce or legal separation. COBRA laws affect both the other spouse and any dependent children. The other spouse has the right to continue paying the premiums to continue medical insurance coverage under COBRA. Anyone who is covered under the health insurance plan of the employed spouse, including the other spouse or former spouse, may make the premium payments and continue that coverage for up to 18 months. An extension for up to an additional 18 months is also possible (the maximum period of continuation coverage is 36 months). You can find the COBRA rules in I.R.C. § 162(k), and in ERISA §§ 601-608 (1974), 29 U.S.C. §§ 1161-1168.