Table of Contents
Divorce Without Kids
The following is a chronological list of the case stages as they would usually occur in an Arizona divorce without children. Some of the case stages may or may not apply in your case, depending on the actions that you or your spouse take during the pendency of your divorce. These “case stages” are designed to provide a general overview of the divorce process in Arizona. As always, it is highly recommended that you call The Cantor Law Group immediately, so that we can provide a free initial office consultation to discuss your individual case.
“Legal Separation” can either be temporary or for an unlimited period of time. This is a legal decree which is issued when the Judge determines that there is an irretrievable breakdown of the marriage, or that one spouse desires to live separate and apart from the other spouse. The benefit of the Legal Separation is that it still leaves open the possibility of “Reconciliation”, and it protects both spouses from the others future debts. One spouse files an objection to the Legal Separation, it will then be amended to a “Petition for Dissolution” of the marriage and the “Divorce” process begins. A Legal Separation will also resolve”Property Division“, debt issues, and other concerns. However, the marriage is still intact at the end of the process. The purpose of Legal Separations versus Divorce is normally for religious reasons and to keep alive the hope that one day the marriage may be salvaged.
Divorce/Dissolution of Marriage
In Arizona, marriages “Dissolve” after the conclusion of a “Dissolution Proceeding”. This used to be formerly known as a “Divorce”. “Irretrievably broken/ irreconcilable differences” is the only grounds which are recognized for “Divorce” in Arizona. It is not necessary to find that somebody is “at fault” for the “Dissolution”. All that is required is that one party wishes to get the Divorce.
An “Uncontested Divorce” is basically one where your spouse does not file a “Response” to the “Petition for Dissolution”. This can either result in a “Default Judgment”, or they may have contacted you and simply entered into a “Consent Decree/Marital Settlement Agreement” without any official fight or “contest” taking place in Court.
A “Contested Divorce” is one in which your spouse is “contesting” your Petition for Dissolution. By “contesting” the Petition, they will have actually filed a Response with the Court. The filing of the Response will not prevent a future Consent Decree/Marital Settlement Agreement from being reached. In fact, the most likely scenario is that they will Respond and then later work out an Agreement between your attorney and theirs. This usually occurs after “Discovery” has been concluded. If a Marital Settlement Agreement is still not reached, it is at this time that a Trial will occur.
Petition for Dissolution
A “Petition for Dissolution” is the first paperwork which is filed to begin a “Divorce” action. Along with the Petition for Dissolution a “Preliminary Injunction” will be filed. In addition, some women also file a request for “Maiden Name Restoration”. An “Order and Notice to Attend Parent Information Program Classes” will also be filed with the Petition. This is an official court order and failure to obey may result in Contempt of Court. What this means is both you and your spouse must complete these classes within 45 days from the Petition being served. Also, these classes must be completed before the Judge will finalize your “Decree of Dissolution”. Our paralegals will provide you with the “Parent Information Program Notice” which includes all information necessary on where to go, costs, how to sign up, and how to get final completion notices sent to the Court.
Once all of these documents are filed with the Court, the Court will check to make sure the Petitioner has “Residency” in order for the Court to have “Jurisdiction”. One of the two spouses must live in Arizona for at least 90 days before the filing of a “Petition for Dissolution”. Once the Petition is filed, there is a 60-day waiting period after “Service of Process” on the other spouse before any “Divorce” can become final.
One of the first papers filed along with the “Petition for Dissolution” is a “Preliminary Injunction“. The Preliminary Injunction Order is the first ruling issued by the Court during the Dissolution proceeding. This prevents you or your spouse from selling or giving away any “Community Property” (i.e. it protects both of you). It also prevents either you or your spouse from taking your children without the prior written consent of the other spouse. Lastly, it prevents either you or your spouse from harassing or disturbing the peace of one another.
Service of Process/Summons
Once a “Petition for Dissolution” is filed with the Court, the “Petitioner” must have the “Summons” and other required documents and notices Served on the “Respondent”. The best way to achieve “Service of Process” is to use a private Process Server. Once your spouse has been Served, they must “Respond” to the Petition within 20 days or the Court may grant all relief you have requested (i.e. a “Default Judgment“). If you are the person who has been served by your spouse, you need to contact The Cantor Law Group as quickly as possible. “Property Division” rights are at issue and need to be dealt with immediately!
A “Default” occurs when a spouse is not “Responding” to the “Petition for Dissolution” within the required amount of time (20 days if your spouse is an Arizona “Resident”; 30 days for an out-of-state Resident). Once the time limit has run and if your spouse has failed to respond, you can then file for a “Notice of Default” with the Court. This has the effect of asking the Court to grant everything that you have asked for in your Petition. Once you have filed the Notice of Default, your spouse has 10 days in which to Respond. If they do not Respond, then your case will be assigned to a Judge to enter a “Final Judgment” in the form of a “Decree of Dissolution”. At this “Default Hearing”, you must be present at Court, otherwise the Judge cannot sign the Decree and give you your copy. This normally takes two to four weeks to occur. If the Judge does grant the Default, then the Defaulted spouse still has the ability to file a Motion and request the Court to Set Aside the Default Judgment in order to allow them to file their Response. If the Judge grants the “Motion to Set Aside the Default”, then the process restarts. If you are the person who has had a Default Judgment entered against you, it is important that you contact The Cantor Law Group immediately so that we can attempt to rectify the situation.
“Discovery” is the term used to describe the process by which each party is allowed to examine all possible evidence that may support their claims. In Arizona, both spouses must disclose, in writing, all legal and factual grounds for their alleged defenses and claims. In the “Notice of Witnesses” they must disclose the name of all witnesses and exchange any documents that will be used at trial. If all items are not fully disclosed, then they may be precluded from being introduced at trial.
“Interrogatories” are written questions that each party must answer in writing. “Depositions” are Court ordered interviews that are normally conducted with both attorneys present, along with a Court reporter. Sometimes one spouse will be present in the room to assist his/her attorney with expanding on any answers given by the other spouse or witness. A “Request for Admissions” is a written list of questions asking for very specific admissions that will save time in the preparation of the case (i.e. “are you the father of the child”, etc.). Lastly, a “Request for Production of Documents” is a specific request for certain documents that either side believes will be beneficial to their case. The importance of all of these Discovery tools is that they solidify all of the issues (on both sides) and help the case proceed more rapidly to a “Marital Settlement Agreement/Consent Decree”. Obviously, a Settlement Agreement is much more preferable than “Trial”. However, if a Trial is eminent, then all of these Discovery measures are absolutely necessary to secure the most favorable result to the parties. At The Cantor Law Group, we have an extensive computer database of Interrogatories and Deposition questions at our disposal. In addition, we have some of the most probing and thorough Requests for Production of Documents currently available within the legal field.
Spousal Maintenance (i.e. Alimony)
In the State of Arizona, “Spousal Maintenance” is not designed to be punitive in nature. It’s overall purpose is to assist a spouse in maintaining the standard of living enjoyed during the marriage, and to assist in the transition from living together as a unit to being two independent people. Numerous factors are considered under Arizona law in determining if Spousal Maintenance should be awarded to either spouse. The following is a partial list of reasons for awarding Spousal Maintenance:
- The ability of the spouse seeking Maintenance to independently meet their needs (either through separate property or other factors)
- Inability to support oneself through employment
- Whether one spouse contributed either financially or through time to the educational opportunities of the other spouse
- Length of the marriage coupled with older age which now precludes the possibility of gaining sufficient employment
- Length of time it would take for a spouse to acquire sufficient education for proper employment
- Both spouses future earning capacities
- Standard of living during the marriage
- Length of the marriage
- The ability of the spouse providing the support to maintain their standard of living while paying out spousal maintenance
- Whether either spouse destroyed, wasted, concealed, or gave away any Community Property
- The comparative earning abilities of each spouse
- The ages of the spouses
- The physical and emotional condition of each spouse
- Jobs held by either spouse during their marriage
- The educational/ vocational skills possessed by the spouse seeking Maintenance
Property Division/Community Property
Arizona is a “Community Property” State. “Separate Property” (property brought in prior to the marriage) is retained by the owner of the property. In addition, it is normally held that an inheritance and separate gifts are also to be considered Separate Property. It is the general proposition that all property and debt acquired during the marriage (including wedding gifts) through the joint resources or funds of the spouses, are considered to be “Community Property”. This includes property acquired by either spouse outside of the State of Arizona if that property would have been Community Property if acquired within the State of Arizona while married. Marital misconduct or “Fault” is irrelevant when dividing up the property. In addition, the fact that only one spouse may have held a job during the marriage is also irrelevant when dividing up Community Property.
Community Property also includes pensions, benefits, stock plans, accrued vacation, deferred compensation, frequent flier miles, publishing rights, copyrights, patents, or anything else of value acquired during the marriage. The Court may also take into consideration the wasteful spending of Community Property assets, destruction of assets, and concealment or fraudulent transfers of Community Property when making the determination of the “Property Division”. Other issues examined by the Court include: length of the marriage; how much property is available for Division; the financial requirements of each of the parties based upon age, health; education level and ability to obtain work and things of that nature. Under certain circumstances, the Judge can order repayment of Separate Property contributed to improve Community Property assets (i.e. inheritance money used to improve the house). Lastly, the Court has the ability to place a lien upon a spouse’s Separate Property in order to secure payment of things such as “Spousal Maintenance“, or any other order under the Judge’s “Final Judgment” per the “Decree of Dissolution“.
When one party strongly believes that the marriage can be saved, they can petition the Court to order marriage counseling. This order results in the Dissolution proceedings being suspended for up to 120 days while the Court determines whether “Reconciliation” is possible and likely.
Consent Decree/Marital Settlement Agreement
If the parties agree to a Settlement prior to going to “Trial”, they can file a “Marital Settlement Agreement” with the Court. This serves as a contract between the parties concerning all issues. This document is normally titled a “Stipulation to File Consent Decree”. It must be signed by both parties and filed with the Court (along with the “Decree of Dissolution“) for the Judge to review, grant, and sign. The Court will normally adopt all of the terms set forth in the Agreement, unless there are any glaring issues. It is common for a Consent Decree to occur when one spouse does not wish to fight the original “Petition for Dissolution”. Before any Marital Settlement Agreement is entered into, you should seek the advice of The Cantor Law Group to make sure that you are not giving away any future rights which you did not anticipate. This Marital Settlement Agreement is often used to settle issues regarding “Property Division“, and “Spousal Maintenance“.
After all “Discovery” has been completed, then the lawyers will sit down and attempt to negotiate a “Marital Separation Agreement/Consent Decree”. If this is not possible, then they will file a document with the Court to have the case set for “Trial”. Most cases normally take one or two days for Trial, however, more complex cases involving large amounts of assets may take up to a week in length. Divorce Trials in Arizona are done without a jury, and are called “Bench Trials”. The Judge hears all of the evidence and then issues a “Final Judgment” in the form of a “Decree of Dissolution“.
The “Petitioner” is the first one to proceed and present evidence at Trial. This is called “Direct Evidence”. Once the Petitioner and the Petitioner’s witnesses have presented their evidence, then the “Respondent” spouse’s attorney is allowed to “cross-examine” the witness with regards to their statements. After being cross-examined, then the Petitioner’s attorney gets a second chance and conducts “redirect examination”. Once all of the Petitioner’s witnesses have testified, then the Respondent spouse will present their evidence. They will do this through “direct evidence” testimony and then they will be “cross-examined,” followed by a final “redirect examination”. Each side has the burden of presenting to the Judge by a “Preponderance of the Evidence” that their claims are justified. Preponderance of the Evidence means that a fact is more likely than not to be true. This means that scales just barely tilt in a party’s favor to determine an issue. (i.e. 51%).
During the Trial, both the Petitioner’s attorney and the Respondent’s attorney have a chance to “object” to evidence or testimony. If no objection is made, then there will not be a “record” preserved for purposes of an “Appeal” at a later date. It is important to have a knowledgeable Family Law attorney who is skilled at the art of Trial advocacy on your side. At The Cantor Law Group, we have extensive Jury and Bench Trial experience resulting in our being highlighted in the Bar Register of Preeminent Lawyers®.
After all evidence has been presented, then the Judge will ask for “closing arguments”. It is at this time that both sides have a chance to summate their client’s position and argue that they have satisfied their burden of proof. The Petitioner’s attorney is allowed to argue first, and the Respondent’s attorney is allowed to argue last. The Judge will normally take the case “under advisement” and issue a written ruling at a later date. It usually takes only a week or two for the Judge to make a ruling, however, he or she has up to 100 days by law in which to submit his or her “Final Judgment” and “Decree of Dissolution”.
Decree of Dissolution
This is the “Final Judgment” or “Decree” which will restore you and your former spouse’s status of unmarried persons. They will also set out the final rulings regarding “Child Custody”, “Property Division”, and other important issues regarding the termination of the marriage. Some of these have specified effective dates, and others take effect immediately. (See “Final Judgment”).
Once the Judge has reviewed all of the evidence, he will submit his “Final Judgment” in the form of a “Decree of Dissolution”. The document will normally address very specific issues regarding “Property Division“. Even though in a “Community Property” state, such as Arizona, assets should be divided down the middle, this is just in theory. In other words, one spouse may receive a more valuable asset in exchange for taking on more debt. Most commonly, this occurs when one spouse takes over the house but is now solely responsible for the large mortgage payment.
Often times one spouse will be allowed to keep their pension or retirement plan in exchange for giving up another, more valuable asset. If the parties cannot agree on how to adequately divide these assets, the Judge can order the sale of certain assets with the proceeds to be distributed evenly. A wife’s former or maiden name can be changed back upon request in the “Petition for Dissolution”. When sitting down to prepare your Petition with The Cantor Law Group, simply ask to have your name changed back, and we will accommodate you quickly and efficiently.