Residency Requirements and Grounds for Divorce
Divorce is a court process legally ending a marriage. In Arizona, divorce is called "dissolution of marriage." Arizona uses a no-fault divorce standard, and blame or responsibility of one of the spouses isn't needed to divorce. The only question for the court when a "standard" marriage is involved is whether the marriage is "irretrievably broken." This means there's no reasonable chance the spouses want to keep the marriage together.
Arizona provides a second marriage type, called a "covenant marriage." It differs from a standard marriage in the steps needed to get married, such as premarital counseling, and requiring grounds for separation or divorce. The grounds for this marriage type are:
- Conviction of a felony with a prison or death sentence
- Abandonment for over one year
- Domestic violence against spouse, child or relative
- Living separately and continuously for two years without reconciling
- Living separately for over one year after a legal separation is obtained
- Habitual use of drugs or alcohol
Either you or your spouse must be an Arizona resident for 90 days before filing for divorce. You file a "Petition for Dissolution of Marriage" in the superior court in the county where you live. Your divorce can be finalized without a trial if you and your spouse agree on issues of property and debt division, child custody and support.
A 60-day waiting period is required between service of court papers to the other spouse and the court's granting of a divorce. Expect finalization soon after the 60 days passes if there's agreement on key divorce issues. If these issues aren't settled, resolution of your cases depends on the court's schedule and the complexity of your case.
A consent decree is another method to resolve your case, and you may not need to go to court. You and your spouse must agree on terms for all issues, and the consent decree is presented to the judge. Once the judge signs it, your divorce is granted and is finalized.
Dividing the Property
Part of a divorce is the court's order for dividing the spouses' property and debts. Arizona is a community property state, meaning property acquired during marriage is treated as by owned by you and your spouse. It's the court's job to try to divide community or marital property equitably, unless one spouse shows "excessive or abnormal expenditures" by the other spouse. An equitable distribution is a fair, but not necessarily equal, distribution.
Marital misconduct isn't a factor. However, the court can look at excessive or abnormal use of community property, including actions of fraud, concealment or destruction.
Property owned before marriage can remain the "separate property" of that spouse, who keeps it. Gifts or inheritance received during the marriage are also a spouse's separate property. A court can put a lien on this source to secure child or spousal support payments.
Property that is considered "separate property:
- Assets you had before marriage, if you kept it separate from community property
- Income produced by a separate property investment if it wasn't "commingled" or mixed with marital property
- Inheritance from your family during your marriage is generally treated as separate property if it was willed exclusively to you and it wasn't commingled
You and your spouse may have a written agreement, which is called a "separation agreement," addressing matters should you and your spouse divorce. The separation agreement is a contract listing and describing the spouses' decisions about ownership of real estate, dividing property, financial support and, if children are involved, even issues of custody and parenting time. In a divorce case, the court must accept the separation agreement (except for matters about custody, parenting time and support of children) unless it is unfair.
Be prepared with information on your property, including when you bought it, estimated value, and details such as account numbers. You'll be ready to meet with an Arizona divorce lawyer and it can save you a lot of time and money.
A court can order spousal maintenance or alimony to either spouse. The parties may agree in writing on this issue, and the court can make the agreement part of the final decree as long as it's fair. If there's no written agreement, the court can decide and award support in amounts and for a period it deems just.
Maintenance can be awarded to either spouse, based on these factors:
- Lack of sufficient property to provide for reasonable needs
- Inability to support himself or herself through a proper job
- Custody of child whose age and condition is such that parent shouldn't have to work outside the home
- Lacks earning ability in the labor market for adequate support
- Contributed to the educational opportunities of the other spouse
- Had a marriage of long duration and is of an age which may preclude chances for an adequate job for support
While alimony can be awarded for any of these reasons, it's also based on the other spouse's ability to pay. Marital misconduct isn't a factor. The factors to be considered are:
- Balancing the contribution of one spouse to the other's career and earning ability at the cost of that spouse's own career development
- The time required for education and training needed to return to work
- The spouse's future earning capacity
- Standard of living during the marriage
- Marriage duration
- The ability of the spouse providing maintenance to meet his or her needs while paying maintenance
- The financial resources of the spouse seeking maintenance
- Any destruction, concealment, fraudulent disposition or excessive expenditures of jointly-held property
- The comparative financial resources of the spouses including earning capacities
- Spouses' ages
- The physical and emotional condition of the spouses
- The usual occupations of the spouses during the marriage
- The vocational skills of the spouse seeking maintenance
- Abilities to contribute to children's educational costs
- Any other factors the court may deem just and equitable
Maintenance is paid via the court, unless otherwise agreed. Spouses can agree to make maintenance agreements may be made non-modifiable.
Alimony awards aren't permanent, and end at death of either party, or at the recipient's remarriage unless the decree provides otherwise.
Child Custody and Visitation
The court makes child custody decisions solely based upon what is in the best interest and welfare of the child. Custody can be sole or joint.
Custody decisions are based on a child's best interest, including these factors:
- Child's preference
- Each parent's desire and ability to support the child's relationship with the other parent
- Parents' wishes
- Child's adjustment to home, school and community
- The mental and physical health of all family members
- Child's individual relationships with family members
- Evidence of domestic abuse
- Presence of coercion or duress regarding custody issues Parents' roles in child's primary care
No preference is given based on a parent's sex. If custody is contested, all other issues in the case are decided first. Joint custody may be awarded if the parents provide a written agreement and the court finds it's in the best interest of the child. The court looks at these factors in reviewing a proposed agreement:
- There should be no evidence of coercion or duress
- Parents' ability for ongoing commitment to their child
- The joint custody agreement is logistically possible
A parent who is not granted custody is entitled to visitation provided the child's well-being isn't at risk. The Parent Child Access Guidelines outline the minimum frequency and duration for visitation, barring cause for restrictions. The Guidelines are based on certain premises, including that both parents are fit and desire to have an ongoing relationship with the child and that it is usually in the child's best interest for each parent to have frequent, meaningful and continuing access to the child. In addition, grandparents and great-grandparents may be awarded visitation rights if it is in a child's best interests.
Once the judge signs the custody order and it's filed with the court clerk, it's binding on both parents. Unless a child is facing serious endangerment, you must wait one year to seek custody decree modification. You can seek modification of joint custody orders at any time based on presence of domestic violence. A six-month wait is required for modification if the request is based on failure to comply with the order.
Support and custody of children are separate issues. Either parent may be ordered to pay child support, without regard to marital misconduct, based on the following factors:
- Child's financial resources
- Child's standard of living during the marriage
- Child's physical and emotional needs
- Parents' financial resources and obligations
- Any destruction, concealment, fraudulent disposition or excessive expenditure of jointly-held property
- Duration of parenting time and any related expenses
Superior court clerks can provide Arizona's Child Support Guidelines, which are the required basis for calculating support unless the court finds it would be inappropriate or unjust. Support payments are processed through the court system unless the parents agree otherwise.
You can seek child support modification based on a substantial change in circumstances that has not been previously addressed, such as a big increase or decrease in either parent's income or a change in living arrangements.