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FAMILY LAW FAQ

General Questions about Divorce

What is the process of getting a divorce?  •  Are there advantages to filing for divorce first?  •  Do I have to hire an attorney?  •  How long will it take to get a divorce?  •  How much does a divorce cost?  •  What are the benefits of mediation?  •  Can I get an annulment?  •  Should I file for divorce or legal separation?  •  How do I obtain an order of protection against my spouse?

1. What is the process of getting a divorce?

The divorce process will vary depending on the circumstances of your case. The process begins after one spouse (“Petitioner”) files a Petition for Dissolution of Marriage with the court and serves the petition on the other spouse (“Respondent”). The Respondent must file a response within 20 days if he or she lives in Arizona, or within 30 days if he or she lives outside of Arizona. From that point, the process is likely to take one of three paths:

  • If the Respondent does not file a response, or if both spouses agree the matter may proceed as if by default, the court will enter a default decree, and the marriage will be dissolved.

  • If you and your spouse agree on how to resolve the issues in your case, you can waive your right to trial and proceed by consent decree; at least 60 days after service of process, you and your spouse will jointly submit a consent decree to the court.

  • If you and your spouse are not in agreement, the court usually will set a Resolution Management Conference to determine your positions on the disputed issues. At that time, the court may enter temporary orders, schedule a settlement conference, or set a trial date.

Generally, resolving all remaining disputes before trial is the best approach because it is more cost-effective and allows you to have control over the outcome of the case. To avoid the expense of trial, you and your spouse can participate in alternative dispute resolution (ADR) processes such as arbitration, mediation or a settlement conference.

In the event your case goes to trial, you will be required to submit a pretrial statement outlining your positions on the disputed issues in your case. You will also be required to exchange any exhibits you intend to use at trial. During the trial, your attorney will ask you questions under oath (direct examination) and you may be asked questions by your spouse’s attorney (indirect examination). The judge will issue a ruling based on the evidence presented at trial.

2. Are there advantages to filing for divorce first?

Filing first will not guarantee you a more favorable resolution in your divorce. If your case goes to trial, as the Petitioner, you would be the first to present your case to the judge, and you would have the option of responding to your spouse’s closing argument. These procedural benefits are minor; it is more important that, before filing for divorce, you are prepared.

3. Do I have to hire an attorney?

Under Arizona law, you are permitted to represent yourself (i.e., to act pro se) in your divorce case. However, it is highly recommended that you consult with an attorney before filing for divorce, especially if you have children and you cannot agree on issues like parenting and child support, or if you or are facing complicated financial issues.

Family law rules and procedures can be complicated, and the divorce process can be overwhelming. An effective and experienced family law attorney will guide you through the process, protect your interests, and help you make informed decisions about your future.

4. How long will it take to get a divorce?

Under Arizona law, it takes at least 60 days to finalize a divorce. If you and your spouse agree on how to resolve the issues in your case, you must wait at least 60 days after service of process before submitting your consent decree to the court.

The length of a divorce depends on a number of factors, including whether you are able to settle your case before it goes to trial, the amount of discovery involved, and the complexity of the case. Generally, parties who have been married a short period of time, acquired few assets or little debt during the marriage, and do not have children can resolve their case more quickly than parties to whom those conditions do not apply. In some cases, it can take up to a year or more to finalize a divorce.

5. How much does a divorce cost?

Your legal fees are largely determined by the complexity of the issues involved, your attorney’s level of experience, and the amount of time it takes to obtain a final divorce decree. Only after gaining an understanding of your situation can an experienced attorney estimate the likely cost of your divorce.

6. What are the benefits of mediation?

The goal of mediation is to reach an agreement with your spouse and avoid the need for a trial. A mediator acts as a neutral third party to facilitate the negotiation of unresolved issues, such as property division, spousal maintenance, and parenting time.

Your attorney can help you weigh the benefits of mediation and ensure that you are prepared to reach a fair settlement agreement. The benefits of mediation include the following:

  • Mediating your case is generally quicker and less costly than litigating it.

  • Mediation is less adversarial than going through the court system.

  • Mediation gives you the opportunity to reach a mutually acceptable agreement with your spouse. In contrast, if you litigate your divorce, you will leave the final decision to a judge who will only have a limited amount of time to make a decision based on the evidence and testimony presented at trial.

In short, mediation offers you significantly more control over how your disputed issues will be resolved.

7. Can I get an annulment?

Annulments are relatively rare and generally must meet certain conditions. The difference between a divorce and an annulment is that an annulment treats a marriage as though it never happened. You and your spouse may seek an annulment if there is an “impediment” that renders the marriage “void.” Here are some examples of an impediment to a marriage:

  • either party being underage (in Arizona, younger than 18, or age 16 or 17 without parental consent);

  • at the time of marriage, one party was married to someone else (“bigamy”);

  • a blood relationship between the spouses;

  • the absence of mental or physical capacity;

  • intoxication;

  • lack of consent;

  • absence of a valid marriage license; and

  • immigration fraud or misrepresentation as to religion.

Because no marital community was created, there is no community property to divide and there are no grounds for spousal maintenance. However, courts have discretion to divide the parties’ property equitably and, if the parties have children in common, to determine child support, legal decision-making authority (formerly known as “child custody”) and parenting time. Because a void marriage was never valid, an annulment action has no legal validity but is necessary to establish the marriage’s invalidity as a matter of record. It is important to be aware that a legal annulment is not the same as a religious annulment.

8. Should I file for divorce or legal separation?

The most important difference between a divorce and a legal separation is that a legal separation does not terminate the marriage. You and your spouse would not need to show that your marriage is “irretrievably broken,” only that at least one spouse desires to live separately from the other spouse.

In addition, at least one spouse must reside in Arizona at the time that the petition for legal separation is filed; to file for divorce, at least one spouse needs to have lived in the state for at least 90 days.

Neither spouse can object to the legal separation; if one spouse is unwilling to consent to a legal separation, the court may convert the legal separation to a divorce.

Some married couples may opt for a legal separation for religious reasons, or to ensure continued access to a spouse’s health insurance benefits, or because they want to live separately but are not ready to file for divorce.

Similar to a divorce proceeding, the court has discretion to award spousal maintenance and child support, divide property and debts, and determine legal decision-making and parenting time. Also, even though the couple is still married, a legal separation terminates community property rights. In other words, after a Decree of Legal Separation Decree is entered, each spouse’s income is his or her sole and separate property, and one spouse can no longer obligate the other for any debt he or she incurs.

Either spouse may ask the court to convert a legal separation to a divorce, either before or after a final Decree of Legal Separation has been entered. If one spouse decides to remarry, for instance, he or she first must convert the legal separation to a divorce. If a final decree has been entered, an additional filing fee will be required for the new Petition for Dissolution.

9. How do I obtain an order of protection against my spouse?

Domestic violence is not limited to physical violence. Threats or intimidating behavior by a spouse are sufficient grounds to obtain an Order of Protection.

You may obtain an Order of Protection from the Superior Court, a Justice Court or a Municipal Court. There is no filing fee to request an Order of Protection. To obtain an Order of Protection from the Maricopa County Superior Court, you need to complete a Petition for Order of Protection at any of the courthouse locations; the forms cannot be downloaded from the Maricopa County Superior Court website. If you have already filed for divorce, your attorney can help you obtain an Order of Protection in Superior Court. When you fill out the paperwork, you will need to list the approximate dates and describe the incidents of domestic violence that have occurred, or you will need to describe why you believe your spouse may commit an act of domestic violence in the future.

The judge will grant your Petition for Order of Protection if he or she finds it is likely your spouse will commit an act of domestic violence, or that he or she has committed an act of domestic violence within the past year. If you or your child is a victim of domestic violence, or you fear for your safety or your child’s safety, you should seek legal protection immediately.