Frequently Asked Questions About Divorce

Is an Annulment the Same thing as Divorce?

arizona divorce attorney, stewart law group

No. An annulment is not the same thing as a divorce. Many of the same issues in a divorce must be hashed out in an annulment, including custody and child support. Here’s the main difference between a divorce and an annulment: a divorce terminates a valid marriage, whereas an annulment declares for the record that no marriage existed — it was null and void.

What Is Common Law Marriage?

Can a man and a woman become legally married by living together as husband and wife — in a “common law marriage” — under Arizona’s laws? No, a common-law marriage cannot be created in Arizona.

Some states do recognize common law marriages between a man and a woman. If a couple with a real common law marriage moves to Arizona, then their marriage would be recognized in Arizona as well. In that situation, a divorce of the common law marriage is possible in Arizona.

The District of Columbia and the following 15 states allow couples to create common law marriages:

  • Alabama
  • Colorado
  • Georgia — only if created before Jan. 1, 1997Arizona Common Law Marriage
  • Idaho — only if created before Jan. 1, 1996
  • Iowa
  • Kansas
  • Montana
  • New Hampshire — only for inheritance purposes
  • Ohio — only if created before Oct. 10, 1991
  • Oklahoma
  • Pennsylvania — only if created before Jan. 1, 2005
  • Rhode Island
  • South Carolina
  • Texas
  • Utah

What is a covenant marriage?

In contrast to a standard marriage, a covenant marriage has additional requirements and formalities. The marriage license reflects the couple’s covenant election. Entering into a covenant marriage requires premarital counseling. Because there must be grounds for divorce, dissolving a covenant marriage is more complicated than with a standard no-fault divorce. The parties may still agree to dissolve their covenant marriage.

When can I file for Divorce in Arizona? How long must I live in a state to file for divorce here?

To file for divorce in Arizona, either you or your spouse must have lived here for at least 90-days. If one of the spouses is in the armed forces and stationed in Arizona, and that is the basis for Arizona jurisdiction, then the military presence must have been maintained for 90 days before the petition is filed.

How do I file for divorce in Arizona?

To initiate a divorce in Arizona, a spouse files a “Petition for Dissolution of Marriage” with the clerk of the Superior Court and pays the requisite filing fee. The other spouse must be served with a copy of the petition and summons. He or she has 20 days from the date of service to file a written response with the court (30 days if service is out-of-state). The other spouse may waive service by signing and having notarized an “Acceptance of Service.” The petition and response make up the initial family court pleadings.

Why does the court need jurisdiction to hear my case?

Before a court can render a decision, it must have the power and authority over the subject matter (the divorce), over both parties (the spouses), and over the things in dispute (the property). Our Superior Courts have original subject matter jurisdiction over divorce, legal separation, child custody and support, and annulments. Personal jurisdiction is the court’s jurisdiction over the parties. In rem jurisdiction gives the court power over property, so it can divide the couple’s assets located within the state’s territory.

Where is a petition for dissolution of marriage filed?

To get a divorce, a petition for dissolution of marriage is filed with the Superior Court in the county where the petitioner or the respondent resides. Unless a fee waiver is obtained, a filing fee must be paid to the Clerk of the Superior Court as well.

divorce paperwork stewart law groupCan I make my spouse pay for my divorce attorney?

Sometimes, yes. In some instances, the court has discretion over whether to award attorneys’ fees against a party. In other instances, the court shall award attorneys’ fees against a party, as when a petition wasn’t filed in good faith or wasn’t grounded in fact or law. Fees are more likely to be awarded if a petition was filed for some improper purpose, such as to delay or simply increase the cost of litigation, if a party maintains an unreasonable position, or there is a great disparity in the parties’ incomes.

Are my divorce attorney’s fees tax deductible?

Unless you fall into a very narrow exception in Internal Revenue Code § 212, then generally the answer is no. IRC § 212 only allows a tax deduction for expenses, including professional fees, paid or incurred in the production or collection of gross income. For specific tax advice and information, please contact your tax professional.

What is a contested divorce?

When a divorcing couple agrees to a settlement, in writing, on all of the issues — spousal maintenance (alimony), asset and debt division, child custody, parenting time, child support — they will be granted an uncontested divorce and avoid adversarial divorce litigation. Conversely, when a couple can’t agree on any of the basic issues, then a contested divorce exists. When a divorce is contested, the parties proceed through all phases of litigation, including a trial before a family court judge.

Am I required to hire an attorney for my divorce?

No. Although it may be prudent to hire a Phoenix divorce lawyer and get them involved early on in your case, it is not a legal requirement. Parties who represent themselves in court do so “pro se” or “in propria persona.” Assuming there isn’t a domestic violence issue, there isn’t anything to prevent you and your spouse from sitting down and working out settlement terms between you. If you and your spouse cannot settle a disputed issue, then the court will decide the matter for you.

Arizona Divorce Mediation

Is mediation available to help us resolve issues in our divorce?

Yes. You may be familiar with mediation as a form of alternative dispute resolution (ADR) — a forum for settling disputed issues in the family law case before a trial. In Arizona, couples with children often participate in the Conciliation Services’ court mediation program. Private mediation is also available for all couples and for any disputed issue.

Are there ways to reduce the cost of my divorce?

Yes, there are. And a good place to start is to educate yourself on the issues relevant to your family law case.

Who presents evidence and witness testimony at trial?

During the trial, each party presents witnesses and evidence. The evidence, in both verbal and non-verbal forms, is presented through witnesses who are placed under oath. The attorneys do not testify in a case, they facilitate the presentation of testimony from the witnesses. If necessary to assure the presence of a witness or to compel the production of documents at trial, subpoenas are issued to procure witnesses’ appearances in court along with documentary evidence in their possession. Any person who fails to obey a subpoena may be sanctioned by the court.

What is the purpose of the Resolution Management Conference RMC?

The purpose of the Resolution Management Conference (RMC) is to settle issues before trial. A party may request an RMC or the court may schedule the conference on its own initiative. In preparation for the RMC, each party files a “Resolution Statement” covering every remaining issue in the case, including custody, child support, spousal maintenance, asset and debt division, attorneys’ fees, name changes, and any other additional issues relevant to the family law case. If there is no settlement agreement on all the issues at the RMC, then the judge will automatically set the case for trial.

What is the purpose of a separation agreement?

The purpose of a separation agreement is to “promote amicable settlement of disputes between parties to a marriage attendant on their separation or the dissolution of their marriage, the parties may enter into a written separation agreement containing provisions for disposition of any property owned by either of them…” A.R.S. § 25-317 legislative history.

Divorces can involve marriages of long duration with considerable marital assets. Even in these complex situations, the parties may achieve a property settlement that is written into a separation agreement. The separation agreement then becomes part of the court’s final decree of dissolution.

Social Media and Divorce

Read our article on Property Settlement and the Separation Agreement.

Should I Post to my social media websites during the divorce?

Yes, but do so carefully. Both parties to a divorce are under heightened scrutiny. Therefore, anything that you post online can and will be used against you in court. Social media evidence will be gathered and used to undermine your credibility with the judge and any child custody evaluator. This evidence may be used to establish your lack of credibility and propensity for untruthfulness, and even to demonstrate that you are an irresponsible parent.

Our own Scott Stewart explains:

Can I secretly record my spouse’s telephone conversations?

Under Arizona’s electronic communications statute, A.R.S. § 13-3005, it is permissible to record a telephone conversation if one of the parties to the communication is aware of and has consented to the recording. That means you may consent to the recording of your own telephone conversations. It is illegal, however, to record a telephone conversation between your spouse and a third party when neither is aware that their conversation is being recorded. Be aware that some states require that both parties to the telephone conversation have knowledge of and consent to the recording. Therefore, if you record your telephone call with an out-of-state participant (without his or her knowledge and consent), then you could be in violation of the other state’s privacy laws.

How do I cope emotionally with my divorce?

Given how emotions so often run high with family law matters, your safety and your children’s safety is of foremost importance. With your focus on the legal matters at hand, you may be distracted, your financial resources may dwindle, your job or school performance may be interfered with, and your energy may be tapped. If your mental health is suffering, consider appropriate counseling or therapy.

What is the best way to handle all of the issues in my divorce?

The best way to handle a divorce is to really understand what goes on. You need to know what your rights are, what your spouse’s rights are, and what protections are in place for your children. Understanding all of these aspects will make your divorce considerably easier.

Is it a crime to eavesdrop on your spouse’s telephone call or emails?

In Arizona, eavesdropping on an electronic communication includes a transfer of data or intelligence by computer or telephone. A person may commit a crime by intentionally eavesdropping on another’s communication, even if one of the parties to the conversation is a spouse. When someone eavesdrops on an oral or electronic communication, without consent, then this act of listening-in is spying. The wrongful, intentional, and deliberate eavesdropping on other people who are communicating between themselves is a crime. Such deliberate interception of oral or electronic communications can result in felony charges under A.R.S. § 13-3005.

How soon can I remarry after divorce?

Once the final divorce decree is issued by the court, the marriage is legally terminated and a new marriage may be entered into. There is no post-divorce decree waiting period in Arizona.

Note, however, that unless there is a provision in the divorce decree stating otherwise, a remarriage will terminate any spousal maintenance or alimony.

How Do I Find The Best Family Law Attorney in Arizona?

To find the best family law attorney, begin by gathering information about the lawyers in your area and asking questions. Ask the people you trust and respect for leads to local Arizona divorce attorneys, or leads to other people who may have attorney recommendations. Talk to your relatives, your friends and neighbors, your co-workers, and even your business contacts about their attorneys and about attorneys who have represented people that they know. Clergy and mental health professionals who provide marriage counseling or couples crisis counseling are often good sources of information on the local family law bar.

Can I Appeal the Judge’s Decision If I Disagree?

Yes. When a party disagrees with the trial judge’s final decision, then an appeal as of right may follow. So long as the time limits and procedures for seeking an appeal are satisfied, either party may obtain appellate review of an adverse trial court decision. Success on appeal, however, is limited to cases in which the judge clearly reached a decision that was unsupported by the evidence adduced at trial, or when there is newly discovered evidence.

What is discovery?

The Arizona Rules of Family Law Procedure refer to the gathering of evidence as “disclosure and discovery.” Discovery procedures involve the formalized exchange of information in the context of litigation, as with a divorce. Generally speaking, any information that is relevant, or that would lead to relevant information, may be discovered. Through discovery, each party gains knowledge of the facts and of the strengths and weaknesses of each position on the issues.

There are four important limitations on discovery. First, the information requested must be relevant to the case. Second, privileged information is not discoverable. Third, one party cannot inundate the other with discovery requests. Fourth, one party cannot use discovery to embarrass or harass the other.

Marriage Counseling in Arizona

Is free marriage counseling available to Arizona couples?

Yes, free counseling is available to married couples through the Family Court’s Conciliation Services. This marital counseling is available when either spouse wants to attempt reconciliation or resolution of the couple’s disputes, regardless of whether a divorce, legal separation, or annulment action has been filed with the court.

What is an ADR Settlement Conference for?

Maricopa County has a leading alternative dispute resolution (ADR) program — the “Settlement Conference.” This settlement program is available in family law cases, other civil cases, and probate cases within the county. The conference involves a presiding commissioner or judge pro tempore (a temporary judge) who offers a legal opinion on the likelihood of success on each party’s position. The non-binding advisory opinion is often a much-needed “wake up” call on the legal merits of each party’s case and provides incentive to attempt to settle the remaining issues without trial.

Is it possible for us to agree to everything in our divorce and avoid trial?

Yes. You and your spouse may negotiate a separation agreement and consent decree. The separation agreement may include provisions for property and asset division, spousal maintenance, child support, and child custody. As difficult as the negotiation of a divorce may sometimes be, it is a far better solution for most couples than turning every disputed issue over to the judge to decide.

What is service of process all about?

To open the family law case, a petition is filed with the Superior Court Clerk who completes the summons. These court documents must be served on the other party — that is “service” or “service of process.” Service is legal notice to the opposing party that papers have been filed in court which could affect his or her rights and interests. Without the requirement of service, or notice, people would not have a fair opportunity to present their side and be heard. Service is so important that the court requires “proof of service” to ensure it was properly accomplished.

Credit Score During Divorce

How can I protect my credit rating during divorce?

In order to protect your credit rating during your divorce, you should consider closing or freezing any joint credit cards by closing joint bank accounts. You can open new bank accounts in your name only, which will give you greater spending power and prevent your spouse from damaging your credit.

What is a collaborative divorce?

Collaborative divorce is a form of alternative dispute resolution, a way for couples to dissolve their marriage without going to court. The couple has to work together, or collaborate, toward the goal which is divorce settlement. At the outset, both parties agree and commit to resolving their disputes through negotiation, compromise, and agreement. If either party’s attorney moves the case toward litigation, then both attorneys will be disqualified and neither may continue the representation in court.


Questions from clients…


  • I was married and I lived with my wife for 45 days. I Discovered she had severe Bi polar, depression and anxiety. I found out that she was a cumpulsive liar. She admitted to me that she lied about her entire self.

Annulment is usually difficult and require extensive fact finding by the judge to determine if one of the statutory factors exist. Fraud is an enumerated basis for annulment in Arizona, but if the other party objects it will require an evidentiary hearing. If you would like more specific information or a consultation please call our office so we can help.


  • I and my spouse went into article 69 agreement but can not complete Consent decree because of multiple interpretation of the same sentence. The case will be dismissed. Will the Rule 69 be still binding or we have to go and re- start the case and have new court orders.

    My spouse has stopped paying temporary support which was continued in Rule 69. Can he do that or he ‘s in contempt of the court. Thanks

If your case is dismissed, the Rule 69 agreement will be dismissed along with it. In order to continue with Dissolution action, you or your spouse would have to refile the action and begin again. However you do have the option to proceed by methods other than a Consent Decree and you may be able to obtain a judgment for the unpaid amounts, which would prevent the case from being dismissed. Please feel free to contact our office to set up an appointment for a consultation so that we can discuss the options available to you more fully.


  • I am going to file the divorce and don’t want to share the money which I made with her, I know I can’t do anything about the house but my question is about the money in the saving account and 401k, can I cash them out and spend them or keep them?

Arizona is a community property state. Therefore, anything acquired during the marriage is presumed to be community property and will be divided equitably by the Court. This includes monies accumulated in retirement accounts, bank accounts, brokerage accounts, etc.

If you were to withdraw funds from the savings account or 401k (which may have tax consequences for you too) you would most likely still have to pay your spouse one half of the money that was in the account before you made the withdrawal. I would advise speaking with an attorney in more detail about this topic.


  • My husband filed for divorce in Mohave County Arizona. Shortly after he filed he cashed out our 401k retirement account without my knowledge or consent and plans on using all of it to open a business in Lake Havasu City Arizona. Didn’t he violate the preliminary injunction that he filed with the court? How do I go about getting my half of the 401K during these divorce procedures?

Unfortunately, it depends and only a Judge can determine if a person is in contempt. Generally, in Arizona, all assets obtained during the marriage are considered “community” assets and therefore any 401K/retirement account contributions and/or value increases made during the marriage are equally the property between the spouses.

If your soon-to-be-ex spouse liquidated the account, he will owe you ½ the value of the accounts worth that accumulated during the marriage. Because navigating the complexities of 401K/retirement accounts is something that requires some level of specialized knowledge, you may want to consider scheduling a consultation with an attorney.

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Stewart Law Group
202 E Earll Dr Ste 160
Phoenix, AZ 85012
Phone: 602-548-3400
Hours: 8 a.m. – 5 p.m.


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