Same-Sex Divorce in Arizona with Children
On October 17, 2014, same-sex marriage became legal in Arizona. Over time the courts will determine and rule on various family law issues as they relate to same-sex couples and as they make rulings that effect the divorce process, we will continually update this page and other sections on our website.
Below is a chronological list of the process that takes place during a divorce in Arizona if you have children. This list should be viewed as an outline of the steps involved when going through a divorce, taking into account custody of children. It is a good idea to hire a seasoned Child Custody Attorney to ensure that your rights as a parent and guardian are heard.
The attorneys with the Cantor Law Group are sympathetic and know how to deal with sensitive family matters in an efficient and compassionate way. It is important to look for an attorney who will answer any and all questions you may have and be a good fit for you and your family. Please contact The Cantor Law Group immediately so that we can provide a free initial office consultation to discuss your individual family law case.
Table of Contents
Couples in Arizona are able to file for “Legal Separation”. This separation enables couples to move forward with the divorce or possibly reach “Reconciliation” in the future. If either spouse does not want a legal separation, documents submitted for legal separation may be revised as a “Petition for Dissolution of Marriage”. Legal Separations may be used in place of Divorce due to religious reasons and for the possibility of restoring the marriage.
To learn more, visit our Legal Separation Process page.
Divorce/Dissolution of Marriage
For a “Dissolution of Marriage” to take place, one party does not need to be found at fault. Someone simply needs to file for the Divorce. The Divorce can either be “Contested” or “Uncontested”.
An “Uncontested Divorce” occurs when the “Petition for Dissolution” does not receive a response from your spouse. The person petitioned for the divorce may be granted a default dissolution of the same-sex marriage.
A “Contested Divorce” occurs when your spouse filed a response with the court. Most likely your spouse will respond, and an agreement will be worked out between their attorney and yours. A trial will occur if a settlement has not yet been reached at this time.
Petition For Dissolution
The “Petition for Dissolution of Marriage”, or “Divorce Papers”, has to be filed to start the divorce process. A request for “Maiden Name Restoration” may also be filed by some women at this point in the divorce process. In addition to the Petition for Dissolution, an “Order and Notice to Attend Parent Information Program Classes” will be filed. Failure to attend and complete these classes may result in Contempt of Court. They must be completed within 45 days of the Petition being served. Furthermore, the classes must be finished before your “Decree of Dissolution” is finalized.
After all petitions and documents are filed, the Court must validate the “Residency” of the Petitioner. At least one spouse must live in Arizona at least 90 days before a “Petition for Dissolution” is filed. A period of 60 days must pass before a “Divorce” can become finalized.
“Temporary Orders” are put into effect to lay out basic protocol for any parties involved. Temporary Orders may include, but are not limited to, occupants of the primary residence; who pays what bills and how much; residence of the children; and if “Spousal Maintenance” (i.e. Alimony) will be taken into account. Temporary orders may be modified into “Permanent Orders” upon agreement of all parties involved, or by ruling of the Judge after the “Trial” has concluded.
Child Custody (Temporary Orders)
Temporary Custody orders are used to continue the status quo for the children’s lives as the divorce process starts. These are used to keep turmoil and upheaval in the children’s lives at a minimum. For more in-depth information about Child Custody issues for Same-Sex couples, click here.
A “Preliminary Injunction” is filed with the “Petition for Dissolution”. This document prevents the sale of any and all “Community Property”, protecting you and your spouse. The Preliminary Injunction Order also prevents you or your spouse from bothering or harassing one another. Finally, it prohibits children being taken by one spouse without written consent from the other spouse.
Service of Process/Summons
The “Summons” and along with the other documents must be Served on the “Respondent” by the “Petitioner” after the “Petition for Dissolution” is filed. After the “Respondent” has been Served, they have 20 days to “Respond” to the Petition or you may be granted a “Default Judgment”.
The Petitioner is granted a “Default Judgment” when their spouse does not “Respond” to the “Petition for Dissolution” within the allotted time period. Arizona residents have 20 days to Respond. If your spouse is not a resident of Arizona, they have 30 days to Respond. You are able to file for a “Notice of Default” if your spouse has not Responded within the specified time period. After the Notice of Default has been filed, your spouse now has 10 days in which to Respond to the Notice. The case will move towards a “Final Judgment” as a “Decree of Dissolution” if no Response is received after the Notice of Default is filed. The “Default Hearing” will take place, and you must attend Court. If you do not attend, you can not receive your copy of the Decree. If the Default is granted, the spouse who was Defaulted is able to file a Motion so they are able to file a Response. The process starts over if the “Motion to Set Aside the Default” is granted.
During the “Discovery Process”, both parties are required to provide, in writing, all documentation supporting their claims. Any documents that are to be used at trial must be disclosed at this time. If items are not disclosed, they may be prohibited from being used at the trial.
Discovery tools are used to help move the case along to a “Marital Settlement Agreement/Consent Decree”. “Interrogatories”, “Depositions”, a “Request for Admissions”, and a “Request for Production of Documents” are all steps that help either side present their issues. If a Settlement Agreement is not able to be reached, both parties and their attorneys move towards the “Trial”. The steps taken during the Discovery Process help both parties involved reach their preferred results.
Spousal Maintenance (i.e. Alimony)
“Spousal Maintenance” is put into effect so that a spouse may continue their previous standard of living while assisting in the process of transitioning towards living as independent people. Spousal Maintenance is not intended to penalize one party and favor the other. There are many factors that may be taken into account when determining whether or not Spousal Maintenance will be awarded to either spouse:
- If one is unable to support themselves through employment
- If one is unable to work due to responsibilities to care for the child/children
- Duration of the same-sex marriage
- The affect on the standard of living of the spouse who will contribute support
Property Division / Community Property
“Separate Property” is any property that is brought into the same-sex marriage that was previously acquired. “Community Property” is property that is acquired throughout the duration of the same-sex marriage. It is any and all property and debt including, pensions, frequent flier miles, publishing rights, copyrights, wedding gifts, or any other valuable property acquired during the same-sex marriage. Wasteful spending, destruction, and hiding of Community Property will be taken into consideration by the Court. Other issues that will be considered as well include: duration of the same-sex marriage, amount of property available, the needs of the children, and the ability of the spouses to gain employment. Under the “Final Judgment” according to the “Decree of Dissolution”, a lien may be placed upon any Separate Property to obtain any payments for “Spousal Maintenance” or “Child Support”.
Either party can petition marriage counseling to be ordered by the Court if they believe there is any hope in salvaging the marriage. Dissolution proceedings may be deferred up to 120 days. During that time, the Court decides whether or not “Reconciliation” is a possibility.
Child Custody (Permanent Orders)
Permanent Orders for Child Custody / Parenting Time for Same-sex couple are the permanent and final custody orders that are “in the best interests of the child”. For more in-depth information about Child Custody issues for Same-Sex couples, click here.
Either spouse may be required to pay “Child Support”. Child Support money is to be used to benefit the child/children. Who pays Child Support is based on a variety of factors:
Previous standard of living
Various needs of the child (educational, medical, or mental health)
Time spent with each parent
Guidelines used to determine Child Support look at many different factors and are based on various mathematical formulas.
Court Appointed Attorneys for Children (Guardian Ad Litem):
An attorney may be appointed for the children (Guardian Ad Litem) to represent their best interests in a court case. The Guardian Ad Litem works with both spouses and their attorneys. Often a compromise is reached keeping with the child’s/children’s best interests while also satisfying the parents and the Court.
Consent Decree / Marital Settlement Agreement:
A “Marital Settlement Agreement” is filed with the Court if both parties can come to an agreement in regards to a settlement. It is a binding contract between both spouses which addresses all issues. After this document is signed by both parties, it (and the “Decree of Dissolution”) is filed with the Court. At that time, it will then be reviewed by the Judge, granted, and signed.
If a “Marital Separation Agreement/Consent Decree” is not able to be negotiated, then the lawyers will have the Court set the case for “Trial”. The Judge will hear all the evidence presented by both sides and then will issue the “Final Judgment” as the “Decree of Dissolution”. The “Petitioner” presents their direct evidence. “Cross-examination” takes place. The Respondent will present their evidence in the same manor. Evidence is presented to the Judge that each side’s requests are justified. When all of the evidence has been exhibited, the Judge takes the case “under advisement”. A ruling will be issued at a later date. This ruling generally takes a couple weeks to be submitted as their “Final Judgment”.
Decree of Dissolution:
The “Decree of Dissolution” is the “Final Judgment. This “Decree” terminates the same-sex marriage, and finalizes agreements on “Child Custody”, “Property Division”, and “Spousal Maintenance”.
The “Final Judgment” is submitted by the Judge as the “Decree of Dissolution”. “Property Division” issues are often one of the main focuses in this document. Very specific issues are often elaborated upon. Often times assets are not split evenly down the middle. In the Final Judgment, the give and take arrangements of assets and properties are laid out in print.