Table of Contents
On October 17, 2014, same-sex marriage became legal in the State of Arizona. We will update this page and other pages on our website with any changes as they become available.
The following is a chronological list of the case stages as they would usually occur in a Same-sex 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.
In the state of Arizona, there are about 14 steps that a same-sex couple may experience during divorce proceedings that do not involve children. While these stages typically occur in sequential order, not all of them apply to every case. Your divorce proceedings will depend on your specific situation. Here at the Cantor Law Group, we are always available to discuss your individual circumstances during a free initial office consultation.
Legal Separation for Same-Sex Marriage
In situations where a same-sex couple wishes to separate from one another, but keep the option of future reconciliation available, a legal separation may be granted. There is no set amount of time for this option, and it can be permanent if both parties agree. In a legal separation, either one spouse can express the desire to live apart from the other, or a judge can issue a determination that the same-sex marriage is beyond hope of repair. As a result of this process, since the same-sex couple is no longer residing together, they are protected from any debts that the other may incur in the future. Any issues such as property division or outstanding debts can also be addressed. If either spouse objects to the ruling for a legal separation, the case is modified and dissolution proceedings begin.
To learn more, visit our Legal Separation Process page.
Divorce / Dissolution of Same-Sex Marriage
For a married same-sex couple to divorce in Arizona, the same-sex marriage must be dissolved following a dissolution proceeding. It does not matter who, if anyone, is at fault. One party in the same-sex marriage has to want the divorce, there are no other requirements. The only recognizable grounds for divorce in Arizona are irreconcilable differences between the parties or that the same-sex marriage be irretrievably broken.
There are two types of divorces:
Uncontested divorce: in this situation, a spouse does not file a formal response to the petition for dissolution. As a result, a default judgment can be issued. If the spouse contacted you and expressed agreement with the dissolution, there would be no need to battle the case in court. Both parties are then entered into a consent decree also known as a marital settlement agreement.
Contested divorce: this type of divorce results when the spouse disagrees or contests the petition for dissolution. When the Court receives a filed response, the proceedings continue. Either an agreement will be worked out between all parties after discovery, or the case will proceed to trial if no marital settlement agreement has been reached.
Why Hire a Divorce Attorney? David Michael Cantor explains:
Petition for Dissolution
To begin a formal divorce, our office will file a petition for dissolution and a preliminary injunction. It is important that at least one party in the divorce has established residency in the state of Arizona for at least 90 days before these proceedings are filed. Otherwise, there is no way for the Court to have jurisdiction of the case. After the petition is filed, the other spouse receives a service of process and the 60-day waiting period for final divorce is initiated.
If either party wishes to eliminate their married name, this would be the time to file a request for name restoration. When you are working with the Cantor Law Group, just let us know when we are completing your petition that you wish to change your name back to what it was before the same-sex marriage. We will quickly take care of it for you.
To protect the well-being and property of both spouses, a preliminary injunction is filed in Court along with the petition for dissolution. During the divorce proceedings, a preliminary injunction order is usually issued right away to ensure that neither party sells or gives away anything that can be deemed community property until the divorce is final.
Service of Process / Summons
When filing the petition for dissolution, it is imperative that the other party be notified. This is accomplished through a summons that is served by a process server. Once the other spouse has been appropriately served, a response must be filed within 20 days. Failure to respond may result in the Court granted all relief requested. If you have recently been served, please contact The Cantor Law Group right away. We will need to immediately deal with any property division rights to avoid a default judgment being issued.
A default judgment is issued when a spouse who was appropriately served fails to respond to the petition for dissolution within the specified time frame. If your spouse is a resident of Arizona, a response must be filed within 20 days. For a spouse who lives outside the state, the response has to be filed within 30 days.
After that time limit expires without a response, you have the option to request that the court simply grant the terms outlined in the petition. This is accomplished by filing a notice of default. Once again, your spouse will have an opportunity to respond. If no response is received within ten days, your case moves forward. It will be assigned to a Judge who will schedule a default hearing at which you must be present. Here, the judge enters a final judgment for your decree of dissolution. This phase of the process will take a few weeks.
Your spouse can still file a motion with the Court requesting time to file a response and for the Court to set aside the default judgment. If the judge agrees, the process starts over again. If a default judgment has been filed against you, the sooner you respond the better. Please contact The Cantor Law Group and we will try to help you.
Both spouses are required to submit written disclosure of all grounds for their claims. During the discovery process, each party has an opportunity to examine evidence that may support those claims. If there are witnesses and documents that will be presented at trial, they must be completely disclosed at this stage in the process or they will not be included at the trial.
Other tools used in the discovery phase include interrogatories, depositions, a request for admissions, and a request for production of documents. Collectively, these tools help resolve issues and increase the likelihood that the case will result in a marital settlement agreement/consent decree instead of going to trial. Regardless, if the case does move forward to a trial, information presented and solidified at the discovery process will be crucial evidence used to resolve any outstanding issues.
Spousal Maintenance (i.e. Alimony) After a Same-Sex Divorce
Here in Arizona, award or denial of spousal maintenance is not intended as a punishment. But rather it is to help ensure that parties are able to continue the same standard of living experienced during the same-sex marriage while transitioning from living as a same-sex couple to two separate individuals. There are many factors that will be evaluated before determining if spousal maintenance will be awarded. The Court will consider the entire same-sex marriage from start to finish and look at factors such as
- Whether the spouse seeking maintenance has other means of meeting her/his own needs
- Financial contributions to the other spouse’s education
- Length of same-sex marriage
- Current and future earnings potential for each spouse
- Age of each spouse
- Physical and emotional situation of each spouse
- Educational level and vocational skills of each spouse
- Amount of time it would take for a spouse to complete an educational program for appropriate employment
- Standard of living
- Whether a spouse can maintain that same standard of living while paying out maintenance to the other party
How is Spousal Maintenance determined in Arizona?
Property Division / Community Property
Property acquired prior to the same-sex marriage, inheritance, and separate gifts are generally considered to be separate property in Arizona. Otherwise, everything else acquired during the same-sex marriage is considered community property and divided equally between both parties. This provision includes assets, debts, pensions, stock plans, and anything else considered to be of value. As in making a determination of Spousal Maintenance, if the court is aware of either party concealing, destroying, wasting, or inappropriately transferring assets, those circumstances may be taken into consideration. Beyond that circumstance, there are generally no other considerations given to fault, job status, or any other factor when determining how these items will be divided.
It is possible for the court to look at an individual’s separate property and put a lien on it so that spousal maintenance and other judgments issued in the decree of dissolution can be carried out appropriately.
Proceedings can be temporarily suspended if the Court orders same-sex marriage counseling at the request of either party. This may be done in a situation where one party has a strong desire to save the same-sex marriage. After delaying the Dissolution for a time period not to exceed 120 days, the court will decide the likelihood of a Reconciliation taking place.
Consent Decree/Marital Settlement Agreement
A marital settlement agreement functions as a contract regarding all issues in the proceedings. This agreement can be signed with both parties and filed with the court as opposed to going to trial. The judge will then review the agreement, which is often titled as a “stipulation to file consent decree”. In most cases, the judge will simply grand and sign the agreement. This situation comes up often when one party does not want to fight and simply doesn’t respond to the petition for dissolution. Even if you do not wish to fight an agreement, it is wise to seek our services so we can help you be certain that you agree with the terms and are not giving up something unexpectedly.
If no separation agreement was finalized after discovery, then the case moves on to court for a trial. Depending on the complexity of your case, it can take anywhere from one day to a week to conduct a trial. There is no divorce court jury in Arizona. Trials are conducted as “bench trials” where the judge hears both parties present their arguments. After taking details of the case “under advisement”, the judge makes a determination via a decree of dissolution sometime in the near future. Typically, we see results back within a couple of weeks; it is possible, however, for the judge to take up to 100 days to submit the final judgment/decree of dissolution.
During the trial, representatives from each party have the ability to object to specific evidence or other information being presented before the Court. Objecting to testimony that you disagree with is crucial because it creates a record in the proceedings should you later wish to come back and file an appeal. With extensive experience with both jury and bench trials here at The Cantor Law Group, we have the skills and abilities to best represent you and your interests in these types of proceedings.
Decree of Dissolution / Final Judgement
This is the final step in the process of obtaining a dissolution of same-sex marriage in Arizona. A signed decree of dissolution or final judgment means that the same-sex marriage is finally dissolved and you are both restored as single persons. This document will outline all of the details of the dissolution including how property is to be divided and whether or not spousal maintenance is awarded. There will be details that go into effect immediately upon issuing the judgment, while others will have dates specified in the dissolution regarding when they are to begin.
If there were specific assets included in the divorce proceedings where no agreement was made regarding how they should be divided, this final judgment will also include instructions on what to do next. It is possible for the judge to simply insist that the assets be sold and proceeds divided equally between both parties.