Divorce and Legal Separation
A legal separation can be an extremely difficult time. There are so many unknowns as to what to expect. The requirements, rules and procedure are set forth by statute. Arizona Revised Statues Title 25 Marital and Domestic Relations. Click Here. The Rules of Family Law Procedure are the guidelines for how the case will proceed before the Court. To see all the Rules click here. Finding the right attorney to assist you is important. Arizona is a "no fault" state. What this means is that martial misconduct is not a factor for one to file for divorce. However, if minor children are involved then martial misconduct can impact the analysis necessary for parenting time and custody (what is now called "legal decision making authority"). In most circumstances, it does not matter who files for legal separation first. If minor children are involved or the parties reside in different counties or states then whomever files first may be important.
The primary issues in every case that need to be decided are division of property and debt. If there are minor children involved then the Court will also need to determine parenting time and custody (legal decision making authority) and child support. Spousal maintenance or alimony may also be a consideration. All property and debt acquired during the marriage, with certain exceptions, is considered community property and needs to be divided in a "fair and equitable" way. This does not necessarily mean 50/50, but often times the Court will try to divide the community property in a 50/50 fashion.
A legal separation can be done by a court. Like divorce, a legal separation also allows both individuals to divide assets and determine child custody, but the individuals remain married, and may share health care and other legal rights. Couples may choose a legal separation over a divorce for religious or other personal reasons.
Divorce vs. Legal Separation
There are many similarities between a divorce and legal separation, and it is up to the couple's personal choice to decide between the two. Both divorces and legal separations are complicated and expensive legal affairs, and allow the couple to divide assets and debts and plan child custody. But in a legal separation the couple remains legally married, but separated, whereas in a divorce both individuals become legally single.
Legal separations should not be used as a precursor to a divorce because the time, money, and effort that go into a separation parallel the time, money and effort for a divorce. But it is possible to file for a divorce after attaining a legal separation. Couples may choose a legal separation if their religion or culture rule out divorce as an option. A major reason for choosing a legal separation over a divorce is the protection of legal benefits, like health insurance, or the continuing joint legal responsibility to debt or other obligations. Legal separations also allow for reconciliation.
Another major difference between the two is the reason for filing. To file for a legal separation both spouses must mutually agree to the separation. To file for a divorce both spouses do not need to agree, and one spouse may file and cite any of the reasons listed below.
Arizona is a “no-fault” state meaning that spouses do not need to give a reason for divorce. One spouse just has to claim the marriage to be “irretrievably broken” to account for a dissolution.
Arizona is also one of four states that recognizes covenant marriages, a type of marriage that differs legally from a regular marriage. For a covenant marriage, the couple enters into marriage as a commitment for life. The couple receives additional counseling from a religious leader like a priest or rabbi, or from a marital counselor, and agrees to seek marital counseling for problems during the marriage instead of turning to legal actions. Covenant marriages have a limited list of reasons for dissolution or divorce which include:
- Imprisonment or perpetration of a felony
- Abandonment for at least one year
- Physical or sexual abuse, or any form of domestic violence
- Living apart without reconciliation for two years, or for one year since a legal separation
- Habitual drug or alcohol abuse
- Both spouses agree to a dissolution
What happens when you file for divorce?
One spouse will file a Petition for Dissolution of Marriage, along with other documents like a Preliminary Injunction that protects shared assets until arrangements can be made in the court
If the divorce includes children, a petition for Temporary Orders may be filed in conjunction with the Petition for Dissolution of Marriage. Temporary Orders will dictate child custody rules for the couple. These orders can take a few months to process in the court. In cases of abuse, Emergency Temporary Orders may be issued to protect children.
After filing the Petition for Dissolution of Marriage, a copy of the petition must be served to the other spouse. If the spouse resides in state the papers must be served and a response must be filed with the court within 20 days, if the spouse resides out of state the papers must be served and a response filed within 30 days. The spouse who received the papers then has only that much time to respond to the petition. If the spouse fails to respond, the filing spouse can take legal action to instate a default divorce.
If the spouse does respond within the 20 (or 30) days the parties may agree to divide their community property and debt in a fair and equitable manner or they can proceed to litigate the issues before the Court at a hearing. Both spouses will agree to a Consent Decree of Dissolution of Marriage that serves as the contract to diving all assets and legal issues between the spouses. A judge will need to sign the contract once both parties agree to it.
If one spouse contests the divorce or believes that a reconciliation is possible, they can contest the initial dissolution petition, or ask the court to require marriage counseling classes before the divorce process continues. If the dissolution is contested, the normal legal proceedings continue, but different arrangements and agreements may be worked out between the two spouses or through their attorneys.
Instead of continuing through a trial, a couple may choose to proceed through Alternative Dispute Resolution (ADR) to mediate an agreement between the two parties. Mediation involves a third, neutral party who works through the legal aspects of the couple's marriage dissolution. The mediation process can be easier on both parties, and less costly. Courts can also order couples to complete ADR.
To file for a divorce in Arizona one of the spouses must have had residency in the state for at least 90 days.
Arizona is one of nine “community property” states. This means that all property and debt acquired during marriage will be divided equally between both spouses at separation.
The “community property” must be acquired during marriage, past property does not count, and does not include inheritances.
Courts will not consider marital misconduct when dividing property during a divorce or separation.
A legal separation maintains the legal status of the marriage, but separates the couple's future legal affairs. All assets or debts acquired after a legal separation are the sole property of the spouse that bought or incurred them.
In a legal separation, unlike a divorce, both parties must agree to be able to file.
Major reasons for considering a legal separation over a divorce include
- Your religion or culture does not allow for divorce
- You wish to maintain legal benefits like health care or social security
The steps to file for a legal separation are the same as a divorce. Instead of a Petition for Dissolution of Marriage spouses will file a Petition for Legal Separation. Both parties must assert that the parties desire to live apart. Unlike divorce, to file for a legal separation in Arizona one of the spouses must have residency in the state at the time of the filing, but does not need to fulfill a 90 day requirement.
After a legal separation the spouses are still married, though legally separated. This means that before entering another marriage they will first have to go through divorce proceedings.
Post Nuptial Agreements
Post nuptial agreements are agreements created after spouses have entered into marriage, and can preemptively resolve issues from property division to child and spousal support, to debt responsibility. Post nuptial agreements focus on planning out monetary and asset division in the marriage to prevent major disputes. Couples who wish to stay married but want to resolve issues in the marriage can choose this option. Though, like pre-nuptial agreements, the court makes the ultimate decision to enforce post-nuptial agreements, many people find that cooperating and working out difficult details through these agreements keeps many issues from becoming overily volitile and stressful.
During legal proceedings for both a divorce and a legal separation, a spouse may file for spousal maintenance, or alimony. ARS 25-319 defines both the eligibility requirements for spousal maintenance, and the amount and duration of the award.
If children are involved in the divorce, spouses will be required to attend separate court-mandated classes to learn about the effects and impacts divorce will have on their children. Both spouses will be required to attend. Refusing to attend can result is lost child custody. If there is no agreement with regards to parenting time and/or custody, both spouses will often be required to attend mediation either though the court or privately to attempt to negotiate a parenting plan for shared parenting of their children.
A.R.S. 25-403 sets forth the factors the Court will consider. The factors include.
- The past, present and potential future relationship between the parent and the child.
- The interaction and interrelationship of the child with the child's parent or parents, the child's siblings and any other person who may significantly affect the child's best interest.
- The child's adjustment to home, school and community.
- If the child is of suitable age and maturity, the wishes of the child as to legal decision-making and parenting time.
- The mental and physical health of all individuals involved.
- Which parent is more likely to allow the child frequent, meaningful and continuing contact with the other parent if no abuse or neglect is involved.
- Whether a parent has been convicted of domestic abuse
- The nature and extent of coercion or duress used by a parent in obtaining an agreement regarding legal decision-making or parenting time.
- Whether either parent was convicted of an act of false reporting of child abuse or neglect, or of intentionally delaying a court case to gain preference
Divorce and Legal Separation
The processes for divorce and legal separation are complex and can have lasting effects on you and your family. If you want an experienced lawyer on your side, contact Cliff Hill for a consultation.