The laws surrounding divorce are different in every state. If you were married in Minnesota and retired in Arizona, you’ll find the laws quite different. Understanding the divorce process in Arizona is important as it will help you make informed decisions and protect the interests of yourself and your children.
- ADR Available: Yes
- Fault or No Fault: Both
- Parenting Plan Required: Yes
- Property Distribution: Community
Covenant Marriage And Divorce
Arizona is one of just four states which has a legal type of marriage called covenant marriage. When compared to marriage, a covenant marriage has additional requirements. A covenant marriage requires that a couple legally agree to marriage counseling should they develop problems in the marriage and receive additional counseling prior to marriage. Should the covenant marriage fail, there are specific grounds for divorce which must be met. A covenant divorce is designed to be harder to accomplish although the document, a Petition for Dissolution of Marriage, is the same.
Grounds For Divorce
Arizona has different grounds for divorce, depending on whether or not the couple has a covenant marriage. Without a covenant marriage, Arizona acts as a “no fault” state. The couple must simply agree that the marriage is irretrievably broken. To obtain a covenant divorce, one of the following grounds must be met:
- Both spouses agree to end the marriage
- Habitual drug or alcohol abuse
- Living apart without reconciliation for at least two years
- Living apart without reconciliation for one year from the date of the Petition for Dissolution of Marriage
- Sexual or physical abuse
Divorce Waiting Periods
Although many divorces take longer than the minimum amount of time to be completed, there are minimum amounts of time required by the state. One of the spouses must be an Arizona resident for 90 days prior to filing for divorce. After that, an additional 60 days must pass before the court will finalize a Decree of Dissolution of Marriage.
Arizona will also allow a legal separation. There are a few reasons a couple may want to become legally separated, rather than divorced. One reason is if there is a chance of reconciliation, the couple may choose this option. In other instances, the spouses may not want to divorce for religious reasons, but no longer wish to live as man and wife. A legal separation agreement would contain all of the terms that would also be contained in the Decree of Dissolution of Marriage, such as child custody arrangements, child support payments, division of property and potentially an alimony payment.
One way of ending a marriage is to have the marriage annulled. A civil annulment is completely separate from a religious annulment. A civil annulment is a way of saying that the marriage was never legal, and so it did not exist. There are many grounds for an annulment including:
- Bigamy (married to someone else)
- Consanguinity (close blood relatives)
- Inability to consent due to intoxication or drug impairment
- Lacking mental capacity to agree to the marriage
- Marriage due to fraud, coercion or duress (one party was tricked or pressured to marry)
- Misrepresentation prior to marriage (lying about religion, finances, impotency, others)
- Underage (one or both parties were minors and did not have parental permission)
Alternative Dispute Resolution (ADR)
In addition to an annulment, there are other ways to end a marriage that do not include a court battle. The purpose of Alternative Dispute Resolution is to find a way to resolve a dispute or disagreement without going to trial. In Arizona, an ADR method which is used is called mediation.
During mediation, a couple will work with a neutral third party who assists the couple in communicating and in reaching agreement. The mediator is often a retired judge, experienced attorney or other trained practitioner. The mediator does not take sides, but instead will help the couple come to a “win-win” agreement regarding child custody, division of property, a parenting plan and any support payments which may be required.
Child Custody Issues
The custody of one’s children can be the most difficult issue that a couple will deal with during divorce. Divorce can be upsetting for the children in the best of circumstances, and traumatic for the children if the parents cannot agree on the terms. If the parents cannot agree on child custody arrangements, the court will make the determination in what it sees as the child’s best interest.
Child Custody Determinations
There are two types of child custody: legal custody and physical custody. Legal custody is the power to make decisions regarding the religion, education and medical treatment of a child or children. Physical custody is where the child receives his or her room and board and the other physical needs are met. Legal and physical custody can be either joint custody or shared custody. This results in four basic types of child custody determinations:
- Joint legal and joint physical custody – a common arrangement is having the children live with each parent on alternating weeks
- Joint legal and sole physical custody – another common arrangement in which the children live with one parent and have visitation time with the other parent (every other weekend, for example)
- Sole legal and joint physical custody – the parenting time is shared but only one parent can make the legal decisions for the children (if one parent was incapable of making the decisions due to a medical condition perhaps)
- Sole legal and sole physical custody – an arrangement which could result if there was any abuse or domestic violence in the marriage
Arizona requires that parents agree on a parenting plan for either joint physical custody or sole physical custody. This plan would include a schedule for overnight visits, holidays and vacations. It would also outline how communication between parents would occur, how to handle scheduling issues and the right of first refusal, and how to handle extra payments for such things as braces, dance lessons or remedial tutoring.
Arizona is like many other states in that it considers the support of children to be the responsibility of both parents. Due to a potential disparity in income, however, one parent may need to make a child support payment to the other parent.
The child support payments are determined according to a formula set by the state, which provides a helpful online calculator. For example, if the father’s monthly gross income is $3,500 and the mother’s monthly gross income is $1,500, the amount of child support the father would owe the mother for one child is:
- $567 if the mother has sole physical custody
- $512.40 if the mother has sole physical custody and receives $500 per month spousal support
- $170.80 if the parents have joint physical custody
Although the child support calculator provides an interesting first look at a potential child support payment, a more accurate calculation may be made with the assistance of an attorney. If the parents cannot agree on an amount, the court will determine the amount.
Child Support Enforcement
Child support that is ordered by the court can also be enforced by the court via wage garnishment, withholding federal income tax or state income tax refunds, or other means. It is important to note that withholding child support payments is not allowed even if the other parent is withholding visitation time. Likewise, it is not permitted to withhold visitation time as a consequence of missed child support payments. The two items are separate.
If a situation changes significantly, one party may request a post-divorce modification to change the child support amount. This could be as a result of:
- Loss of employment
- Significant increase in income (either party)
- Medical issues
Establishing paternity is a way of legally stating the identity of a child’s father. If a couple is married at the time of a child’s birth, paternity is established automatically. If not, paternity can be established by the court. The individuals who can go to court to establish paternity are:
- The mother (who may wish to collect child support)
- A potential father (who may wish to exercise a father’s rights and responsibilities
- A child’s legal guardian (who may wish to collect child support)
- A government entity (in order to obtain welfare or health insurance benefits for the child)
Marital Assets: When a couple is married, they may view everything as ‘ours,’ but that can change drastically in the face of divorce. In the state of Arizona, the assets and debts are considered community property, meaning that it belongs to both spouses and will be divided in a 50/50 fashion. Anything that was owned prior to marriage would be considered separate property, provided it was not comingled with marital property. Likewise, a gift received by one party during the marriage would be considered separate property as long as it was not comingled with community property.
In Arizona the assets and debts are divided as equally as possible. This can be done by assessing a value to all property, and then dividing the property so that each has half of the value, or by selling the assets and dividing the cash value, or by a combination of those actions.
The assets and debts which are divided include:
- All checking and savings account balances
- All credit card debt
- All household furnishings including sporting equipment
- Any collections such as artwork, coins or guns
- Any unsecured debt
- Investments such as stocks, bonds or anything similar
- Jewelry with the exception of wedding rings
- Motor vehicles and boats
- Real estate property including the family home
- Retirement assets such as RIAs, 401(k)s, and Keoghs
It is important to keep in mind that the debts are also divided. An exception may be that if one spouse maxed out the credit cards prior to divorce, accumulated gambling debts or spent money on drugs, the other spouse can ask the court for more community property or ask that more debt be assigned to the party responsible for creating that debt.
In Arizona alimony is called spousal maintenance. Maintenance is an amount of money one ex-spouse pays to the other spouse, and in Arizona it is not an automatic determination. The couple may decide on an amount, and if they do so, the court will typically agree. If the couple cannot come to an agreement, the court will make a decision based upon several factors including:
- The length of the marriage
- The lifestyle the couple had prior to divorce
- Whether the spouse requesting alimony has the skills necessary to become self-sufficient
- The contribution each spouse has made to the earning power of the other
- The health of the spouse requesting alimony
- Other factors
Prenuptial And Postnuptial Agreements
A prenuptial agreement is a legal agreement between two people, before they are married, which states the terms of a divorce, should it occur. A prenup agreement would cover division of property, alimony, child custody and child support. A prenuptial agreement is typically honored by the court unless it was signed under duress, or the parties did not have independent counsel prior to signing the prenup.
A postnuptial agreement covers the same issues, and is signed after the couple is married. A postnuptial or postmarital agreement is sometimes signed when a couple is having difficulties in their marriage, and is unsure if the marriage will result in divorce.
When a couple with children divorces, it is not only the parents who will have less time with their children; it also impacts the aunts, uncles and grandparents. When access to the children is not being permitted by the ex-spouses, the grandparents can ask the court for visitation privileges. The court will decide based on factors such as the grandparents’ pre-existing relationship with the children; however, the court will always make its decision based upon the child’s best interests.