Arizona Divorce Details

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.

Grounds for Divorce

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.

Covenant Marriages

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:

1. There was adultery.
2. There was a felony conviction and sentence to imprisonment or death.
3. There was abandonment of the matrimonial domicile for at least a year.
4. There was domestic violence or emotional abuse.
5. The spouses lived separately and apart from each other continuously, without reconciliation, for at least two years.
6. The spouses lived separately and apart from each other for at least one year after a legal separation was obtained.
7. There was habitual drug or alcohol abuse.

Legal Separation in Arizona

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.

Residency Requirement

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).

Jurisdiction Over Children

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:

1. Whether Arizona is the place where the child has lived for the most recent six months (“home state” jurisdiction); or
2. Whether Arizona has the most significant connection with the child and at least one parent; or
3. Whether the child is physically present in Arizona and needs protection based on abandonment or some emergency; or
4. Whether no other state is able to assert jurisdiction (or chooses not to assert jurisdiction if it could), and it is in the child’s best interests for Arizona to assume jurisdiction.

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.

Proper Venue

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.

Petitioning for Divorce

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:

1. Personal information about both parties: full names, Social Security Numbers, addresses, birth dates, occupations, and duration of each spouse’s domicile in Arizona.
2. Date and location of the marriage.
3. That the “marriage is irretrievably broken and there is no reasonable prospect of reconciliation…”  Should the parties have a covenant marriage, additional allegations, or assertions, must be made.
4. One or both spouses has been domiciled in Arizona for at least 90 days prior to filing the petition (or stationed in Arizona for at least 90 days if one spouse is a service member).
5. Personal information about all minor children born to or adopted by the couple.
6. Information about whether the wife is pregnant or not and, if pregnant, when the baby is due and whether the husband is the father.
7. Whether the spouses have arrived at a child custody and parenting time agreement.
8. Information regarding assets and debts, including marital and separate property.
9. Statement of what assets should be given to which spouse (bank accounts, real property, household furnishings, retirement accounts, vehicles, etc.).
10. Information about the debts incurred during the marriage and which spouse should be obligated to pay each debt.
11. Request for spousal maintenance (or statement that neither spouse is entitled to such support).
12. A prayer for the relief sought, including court orders to dissolve the marriage, restore a former name, order spousal maintenance, order child support, and so on. The Petitioner may ask for joint custody or for sole custody with reasonable parenting time for the noncustodial parent (or supervised visitation, or even no parenting time). The Petitioner asks the court to assign each spouse his and her separate property, and to divide all of the couple’s community property. The court is asked to order each party to pay the marital debts as requested in the petition, and asked to “order each party to pay any and all other community debts unknown to the other party.” In many instances, the Petitioner will have specific requests for additional court orders.

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.

Changing Your Name

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.

Service of Process

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:

1. Service by Acceptance.  The other party receives the court papers and completes an “Acceptance of Service,” which is then filed as proof of service.
2. Service by U.S. Mail or National Currier.  The other party signs for the court papers when the U.S. postal carrier or commercial courier delivers them.  An “Affidavit of Service with Signature Confirmation” is filed as proof of service.
3. Service by Private Process Server or by County Sheriff.  The other party receives the court papers from a private process server or a sheriff who delivers them personally. The process server or sheriff completes an “Affidavit of Service” which the Petitioner files with the court as proof of service. When the other party is served out-of-state, the process server or sheriff completes the “Affidavit Supporting Out-of-State Service” after delivery as proof of service.
4. Service by Publication. When other methods of service prove to be fruitless, service by publishing a legal notice advertisement in a newspaper of general circulation may be accomplished. Proof of service by “Affidavit Supporting Publication” is filed with the court after the notice has been published. But unless the other party responds to the lawsuit, there is no evidence that he or she ever read the notice in the newspaper.

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 Divorce

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:

• Petition for Dissolution of Marriage.
• Custody request.
• Parent Information Program Certificate.
• Proof of Service of Process.
• Date the Application and Affidavit of Default was filed.
• Date the Application and Affidavit of Default was mailed or delivered to the other party.

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.

Divorce Process

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.

COBRA and Divorce or Legal Separation

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.