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Divorce That’s No One’s Fault

Like most states, Arizona’s no-fault divorce law allows the marriage to be dissolved without allegations and proof of fault. This means adultery, abandonment, domestic violence, incarceration, and other traditional allegations are not required as legal grounds for no-fault divorce. (The only exception is the covenant marriage divorce.)

The no-fault process may not remove the hurt, but it does eliminate legal blame. With no-fault divorce, the marriage is dissolved because it is “irretrievably broken” with no reasonable prospect of reconciliation. The judge does not look into who caused what problem in the marriage before granting the parties’ divorce. 

Importantly, either spouse may obtain a no-fault divorce in Arizona over the other’s objection or request for legal separation. Mutual consent to divorce is not required!

Marital Misconduct in No-Fault Divorce

A spouse’s marital misconduct is never grounds for no-fault divorce, but marital waste can be factored into spousal maintenance. Concealed assets and destructive or wasteful acts to community or jointly held property is a factor influencing the amount and duration of spousal support. Acts involving dissipated marital assets, excessive spending, and hidden community or jointly held property are well within the court’s spousal maintenance analysis.

How property is divided in divorce may also be affected by a party’s wastefulness or destructiveness. When a spouse wasted or destroyed community or jointly held property, the family law judge has broad discretion when making the property division equitable. For one, the court may distribute assets in kind by allocating specific things (not cash) to each party. Secondly, the court may order the wasteful spouse to make an equalization payment to the other spouse as compensation for loss to the marital estate of which the spouses each owned half. 

Covenant Marriage Divorce

Under Arizona law, legal grounds must be alleged to support a request for divorce from a covenant marriage unless the spouses agree to it. If the other spouse does not want to dissolve the marriage, then the Petitioner must allege and prove one of the following grounds for divorce: 

  • Adultery
  • Felony conviction and sentence to imprisonment or death
  • Abandonment of the matrimonial domicile for at least a year
  • Domestic violence or emotional abuse
  • Spouses lived separately and apart continuously and without reconciliation for at least two years
  • Spouses lived separately and apart for at least one year after a decree of legal separation
  • Habitual drug or alcohol abuse.

[See ARS § 25-903 for precise language.]

Valid Marriage in Arizona

For there to be a divorce, there must be a valid marriage. When two people wish to marry in Arizona they must satisfy the requirements of ARS § 25-111. They must participate in a marriage ceremony and get a marriage license. Before the license expires, the marriage must be solemnized by someone authorized to do so, such as a pastor or justice of the peace (but not the ship’s captain, that’s a myth). A marriage could be valid if solemnized by someone purporting to have authority to marry others, but only if one of the parties had a good faith belief in the legitimacy of that authority.

No Arizona Common Law Marriages

A valid marriage contracted in another state – in compliance with that state’s legalities – is also valid in Arizona. ARS § 25-112. Married couples have the right to relocate for a myriad of reasons, such as military service, employment opportunities, closeness to family, university enrollment, or nicer weather. But a common law marriage is not a ceremonial marriage. Therefore, no couple can enter a common law marriage in Arizona. No exceptions!

As it is, only a few states allow common law marriage. In those jurisdictions, two people hold themselves out publicly as married without any other legal formalities. Under principles of comity, Arizona recognizes a lawful common law marriage from a different state, such as Utah, Colorado, Texas, or Kansas. Any out-of-state marriage lawfully entered is fully enforceable in Arizona and divorce may be sought.  

Marriages Void or Prohibited

No divorce is obtainable from a void or prohibited marriage in Arizona, instead seeking an annulment may be necessary. ARS § 25-101 places strict limitations on who can marry in this state. There are no marriages between parents and children, grandparents and grandchildren, brothers and sisters of one-half as well as whole blood, uncles and nieces, aunts and nephews, or between first cousins (unless they are 65 years old or older). First cousins younger than 65 may marry after obtaining court approval based upon proof of one’s sterility. Same sex marriages are not prohibited in any state. Obergefell v. Hodges, 135 SCt 2584 (2015). 

When Minors Marry

When an engagement is between two adults, the couple can start planning their honeymoon. If either is a minor child, however, then ARS § 25-102 has additional requirements before a valid marriage can take place. First, absolutely no child under the age of 16 can marry in Arizona. Second, a minor under the age of 18, but not younger than 16, must either have an emancipation order or obtain prior consent from a parent or guardian. In either situation, a prospective spouse cannot be more than three years older than the minor child. 

A divorce decree marks the end of a marriage and the beginning of an independent lifestyle. The future is never certain. But a fair and workable resolution of all issues in your divorce should lay the groundwork for a successful transition to your new life. Stewart Law Group will stand by you all the way – counseling you, negotiating with the other party’s attorney, representing you in court, and protecting your rights.