A.R.S. § 25-312 requires that at least one of the parties in a divorce has been domiciled or residing within the state of Arizona for a minimum of 90 days before filing a petition for dissolution of marriage in order to be divorced within the State of Arizona. In most cases this is a relatively straight-forward issue. If, however, your circumstances make it difficult to determine whether you or your spouse qualify as being “domiciled” within the State of Arizona as contemplated by A.R.S. § 25-312(1) , you should call Dustin T. Dudley at (602) 300-6777 for assistance free of charge.
Arizona has established a special type of marriage called a “covenant marriage.” Parties who have entered into covenant marriages must satisfy much more strict requirements to be divorced. A list of acceptable grounds for the dissolution of a covenant marriage are enumerated within A.R.S. § 25-903. Most people who have entered into covenant marriages will likely remember that they have done so because they will probably recall the counseling and classes that they went through prior to entering a covenant marriage. If you are not sure if your marriage is a covenant marriage, Mr. Dudley can assist you in obtaining a copy of your marriage license.
Although under Arizona law there are no “defenses” to a divorce action, either party may have the matter referred to a division of the court known as the Court of Conciliation, which is designed to assist the parties in resolving their disputes. If you would like an opportunity to save your marriage with the assistance of counseling, Dustin T. Dudley can help you to invoke the assistance of the Court of Conciliation, have the divorce case put on hold for 60 days pursuant to A.R.S. § 25-381.18(A) , and have the Court require that both parties attend counseling which is provided by the Court free of charge. If, however, at the end of the 60 days, either party still wants the divorce, then the case will go forward.
You do not need your spouse’s agreement to get a divorce. As set forth in A.R.S. §25-312(3) , the court only needs to find that the marriage is irretrievably broken in order to grant the divorce. The court does not have to (and will not) find either party at fault for causing the divorce. That said, in cases where marital misconduct may have resulted in unfair financial consequences for the other spouse, Dustin T. Dudley may be able to persuade a court to consider the marital misconduct in its determination of the equitable distribution of community assets and debts.
In Arizona there is a sixty day waiting period from the date of service of the petition that must expire before a final order of divorce may be entered. A.R.S. § 25-329. So it is simply not possible to complete a divorce case in less than 60 days. Beyond that, every case is different. After consultation, depending upon the facts of your matter, Mr. Dudley may be able to give you an estimate of approximately how long you should anticipate your matter taking to complete. There are a number of important legal consequences associated with the date of dissolution of your marriage and the termination of the marital community. It is easy to confuse the date of the completion of your matter with the date of dissolution and termination of your marital community, but they are completely different. Once the divorce is granted, the dissolution of marriage and termination of the marital community are retroactive back to the filing date of the Petition for Dissolution of Marriage. If this doesn’t make sense to you, feel free to call Dustin T. Dudley at 602-300-6777 for a more complete explanation of how this works and the legal implications of the retroactive nature of the dissolution of marriage and termination of the marital community.
A. The Divorce Process
1. Initial Documents
Statutory law pertaining to divorce actions is set forth in A.R.S. § 25-311 and subsequent sections of this statute . Either a husband or a wife may initiate a divorce by filing a petition with the court requesting the dissolution of their marriage. A.R.S. § 25-314(B) . The person who files the divorce is assigned the role of the “petitioner.” The petitioner must pay a filing fee at the time of filing the petition. As of the date of this writing, the petitioner’s filing fee in Maricopa County was $321. The other party to a divorce case is assigned the role of the “respondent.” The respondent must pay a filing fee at the time they make an appearance in the case, be it by a notice of appearance, a response to the petition for dissolution, or otherwise. The amount of the respondent’s filing fee in Maricopa County, as of the time of this writing, was $268. If a party to a divorce action can demonstrate sufficient financial need, they may qualify for a filing fee deferral. A party’s designation as petitioner or respondent remains the same for the entire case, including any post-decree matters that may later arise. The petition must be filed with the clerk of the court in the Superior Court of the county wherein at least one of the parties resides. A number of additional pleadings must be filed to initiate the divorce. Specifically which additional pleadings are required varies from one court to the next and also varies depending upon whether or not the parties have minor children. After the required initial documents are filed with the clerk of the appropriate court, they must be served upon the respondent in accordance with Arizona Rules of Civil Procedure (A.R.C.P.) 4(b) and Arizona Rules of Family Law Procedure 40(b).
Divorce is a complicated process and legal representation is an extremely important step toward insuring a legally correct result. Only Arizona State Bar certified attorneys may provide legal advice and represent clients in Arizona courts. Dustin T. Dudley is an Arizona State Bar certified attorney in good standing, whose practice includes all aspects of family law. Mr. Dudley’s fees are very reasonable and his retainers are relatively low for this area of law. If, however, you cannot afford the assistance of an attorney, the Family Law Assistance Project may be able to provide you with some assistance. They can be reached at 602-506-7948. Never pay a third-party vendor for divorce forms in Maricopa County. All of the forms and instructions for completing and filing them are available free of charge on the Maricopa County Superior Court website.
2. Temporary Orders
Not all family law matters require temporary orders. In fact, most do not. However, if the parties cannot agree on important decisions or cannot cooperate to accomplish tasks that must be accomplished while the case is pending, then it may be necessary to seek temporary orders. This can be accomplished by filing a petition for temporary orders pursuant to A.R.S. § 25-315. Temporary orders may also be utilized to secure exclusive use and control of the marital residence pursuant to A.R.S. § 25-315 (C). Some of the other justifications for seeking temporary orders include an inability to reach agreements with your spouse regarding how the two of you will handle such issues as child custody, parenting time, child support, spousal maintenance, attorney’s fees, payment of community obligations, and access to community resources while the divorce case is pending. However, the decision to seek temporary orders should be carefully considered, as temporary orders will significantly increase the overall cost of a divorce. If, after careful consideration, temporary orders appear necessary and justifiable in your matter, Dustin T. Dudley has the knowledge, experience, and expertise to assist you in securing any necessary temporary orders, as he has done repeatedly over the years for countless clients involving such issues as exclusive use of a marital residence, child custody, parenting time, child support, spousal maintenance, and attorney’s fees.
3. Disclosure & Discovery
Once the initial documents have been filed with the court and served upon the respondent, the parties may engage in discovery, which is a process designed to obtain information about assets and debts and to secure evidence necessary support a proper determination of such case-related issues as child custody, parenting time, child support, and spousal maintenance. Discovery is conducted using a series of interrogatories (written questions), depositions (verbal questions), requests for production of documents (demands for documentation), request for admissions (asking the opposing party to admit certain things with a potential consequence for a failure to admit a true fact later proven), subpoena duces tecum (court order requiring third parties, such as financial institutions to produce otherwise private documents) and physical and/or mental examination(s). In some cases, both parties may be comfortable resolving their differences without conducting significant discovery. However, often times a fair and equitable result in a family law matter requires considerable, well though-out discovery. Dustin T. Dudley has a wealth of knowledge and considerable experience conducting discovery to locate hidden assets, find hidden money, expose marital waste involving the misuse of community property for improper purposes, and to secure admissible evidence relating to such issues as child custody, parenting time, child support, spousal maintenance, division of community property, and confirmation of separate property.
A Resolution Management Conference (“RMC”) is the Judge’s first opportunity to hear any agreements that have been reached and determine what disputes remain. This initial hearing also gives the court an opportunity to work with the parties and counsel to schedule any mechanisms, such as alternative dispute resolution, parenting conferences, or custody evaluations, that might be necessary or helpful, and to set a trial date. An RMC is not an evidentiary hearing and the Judge is not ordinarily empowered to hear evidence and make rulings at that time absent agreement of the parties.
Alternative dispute resolution (“ADR”) includes a number of processes including Mediation, Arbitration, and Settlement Conferences. Either party is permitted to request ADR. The court is also free to order that the parties participate in ADR even if neither party requests it. If you would like a description of the differences in the various ADR processes, contact Dustin T. Dudley at 602-300-6777 for a full explanation.
6. Consent Decree or Default
Most divorce cases settle before going to trial. When a settlement is reached, the terms of the settlement are recorded in a document called a Consent Decree. A Consent Decree is drafted to mirror all of the detailed terms of the divorce. Both parties and their attorneys sign the final document and submit it to the Judge for review and execution by the Judge. In Arizona there is a statutory waiting period that, at the time of this writing, required a minimum of 60 days to have passed between the service of the Petition for Dissolution of Marriage and the date that a final decree of dissolution may be entered. After the Judge signs the Consent Decree it is filed with the Clerk of the Court and returned to the parties. At this point the divorce is final. If, on the other hand, after being served the respondent does not respond within the appropriate time frame, the petitioner may file an application for entry of default. Upon doing so, the respondent is permitted an additional 10 business days in which to file a Response. If the Respondent does not do so, then the clerk will enter default and the Petitioner may file a Motion for entry of Default Decree. Depending upon the facts of the case, a Default Decree may be issued with or without the need for a hearing. A Default Decree must grant only specifically that relief requested in the Petition for Dissolution of Marriage.
The court will not automatically schedule a trial date for divorce cases. In order to start the trial process, one party must file a motion indicating readiness for trial and must comply with the local court’s rules and orders. These rules vary from county to county superior court. You can call the local clerk of Superior Court’s office to get information on any local rules and orders in your area. At hearing be prepared to present evidence regarding custody, visitation, child support, and division of property and debts.