Family Law and Divorce in Arizona: FAQs

General answers to frequently asked questions about traditional Arizona divorce and post-decree issues

Is there any advantage to being the one who files for the divorce?

There is no preference legally given to the person who files for divorce. That being said, there may be some practical advantages in planning and initiating the divorce filing. For example, the spouse who intends to file for divorce, after being aware of the restrictions imposed by the Preliminary Injunction that follows the filing, may wish to file immediately after shifting community funds or other assets or after obtaining an Order of Protection.

Should I file for divorce? Or for legal separation?

There is very little difference between divorce and legal separation. The paperwork for both divorce and legal separation is similar. The process is the same. Both involve the same legal issues or topic areas; both will likely take the same length of time; and the Court filing fees and legal costs will be the same. The primary difference is that, at the end of the divorce process you are a divorced individual, free to remarry if you choose. If you are legally separated, it is like you are divorced, but you are not free to marry.

How long will it take to get a divorce?

If it is uncontested and you and your spouse agree on every issue that must be resolved, your divorce can be completed in a little over 60 days (the legal minimum). On the other hand, if your divorce or legal separation is contested or you can't agree on important issues, it's not unusual for a divorce proceeding to go on for six to eight months or more.

What is the divorce process?

The divorce process begins with one spouse (the Petitioner) filing a Petition for Dissolution of Marriage and related documents. Shortly after the filing, a copy is served on the other spouse, who then files a Response to the Petition, a copy of which is sent to the Petitioner.

Disclosure and discovery come next. "Disclosure" specifies each spouse’s factual and legal positions, along with a list of exhibits and witnesses. "Discovery" is the process by which one spouse receives information and documents from the other, such as interrogatories, requests for admissions, requests to produce documents, depositions, etc. During this stage, either party can file a request for Temporary Orders pending the entry of a divorce decree; he or she can also request a settlement conference.

The issues to be settled by the parties or resolved by order of the Court generally encompass, as applicable, child custody (known in Arizona as “legal decision making”), child support, spousal maintenance, asset distribution, debt allocation, etc. Any issues that the parties cannot resolve will be decided by the judge.

How much will it cost?

Among the factors that determines the cost of a divorce are the attorney's hourly billing rate; his or her experience in family law matters; the ability of the spouses to cooperate in reaching agreements; whether the couple has minor children; the complexity and value of the couple's community property; the issues that must be negotiated and resolved; any unresolved issues that must be argued in Court, and so on.

Learn about fee options offered by Mary Ann Hess.

Can I get a free consultation?

Mary Ann Hess offers a consultation for up to an hour for $150, a 50% discount below her standard hourly rate. If you would like additional consultation time, it is offered at $300 per hour.

Do both of us need a lawyer?

One attorney cannot ethically represent both spouses in a divorce or any other legal dispute. However, if the spouses can agree on all the terms of the divorce or legal separation, one spouse can hire an attorney to prepare the necessary documents for review by both parties. If that goes well, the attorney can move the matter through the Court.

Can I get an annulment?

An annulment is a Court order that basically states that a marriage never happened. Annulments in Arizona are rare: If you have been validly married, even for the shortest of time, or even under the most difficult circumstances, then you likely do not qualify for an annulment. If you are interested in an annulment, you should discuss this issue with an attorney before making any decisions.

Who pays for joint expenses while the divorce is pending? What are temporary orders?

When the spouses cannot agree on how community expenses, debts and assets are to be managed while the divorce is pending, the Court will commonly issue "temporary orders" at the request of one or both spouses. Temporary orders address living expenses, debt management and other issues needing short-term management.

Will my spouse’s health insurance still cover our children and me?

The preliminary injunction (mentioned in the first question) bars certain actions and requires other actions, including the continuation of health, auto and other forms of insurance. It also addresses the management of community property and the care of children. However, since the preliminary injunction is general in language, it is often helpful to obtain more specific temporary orders (also addressed above).

After the divorce is final, many spouses find themselves needing to purchase COBRA health coverage (if available) or purchasing insurance in the marketplace. The future cost of health insurance is one of the factors that the judge will look at in determining a spousal maintenance award.

Any child support order in the divorce will include an order as to which parent is ordered to provide health insurance for the children.

How can I get protection from my spouse?

If there has been domestic violence against you or your children, you should first get to a safe place, then make a report to the authorities, then seek an Order of Protection. If a divorce or legal separation has not yet been filed, you can obtain an Order of Protection in Justice Court, City Court or Superior Court. If a divorce or separation has already been filed, you should go only to the local Superior Court to get an Order of Protection.

Who will get custody of our children?

In Arizona the terms “legal custody” and “child custody” have been replaced with the term “legal decision-making.” Legal decision-making is the legal right and responsibility to make all non-emergency legal decisions for your child, including those regarding education, health care, religion and personal care.

Barring a showing of unfitness or other harmful impact on the children, the courts tend to prefer joint legal decision-making, which encourages involvement of both parents in the lives of their children. Usually the more difficult issue is physical access. This issue depends on so many variables – such as work schedules, physical proximity of the parents, ages and activities of the children, etc. – that your physical access plan will need to be created to fit the needs of your family.

What is the difference between sole custody and joint custody?

Joint legal decision-making means that both parents share decision-making, and sole legal decision-making means that one parent has the legal right to make major decisions for the child without the other parent’s input. The reality most judges require a sole legal decision making parent to discuss the child’s issues with the other parent before making any final decision. As a general rule, courts will order that the parents share legal decision-making unless that arrangement would be contrary to the child’s best interest.

What will the Court order for parenting time with my children?

The Court will generally abide by the agreement of the parents, if the plan is in the best interests of them and the children. If the parents cannot agree, the Court will listen to the evidence and determine a plan. More often than not, with an access schedule issue, the Court will likely order a settlement conference, conciliation services counseling and/or parenting conference. A parenting conference normally produces a report recommending an parenting time for the Court’s consideration. This is often the most expeditious and cost-effective method of resolving parenting time issues.

What is a Parenting Plan?

A Parenting Plan establishes specific parameters for legal decision-making and parenting time. During each parent’s designated parenting time, he or she is responsible for providing their child(ren) with food and shelter and making daily decisions concerning the child(ren)’s care. If you cannot agree on a parenting plan, you and your spouse will need to submit proposed parenting plans to the court.

A Parenting Plan should include a designation of legal decision-making; a parenting time schedule including holidays and school vacations; a procedure for exchanging the child; a procedure for modifying the parenting plan and a procedure for periodic review; and a procedure for communicating with each other about the child.

What will the Court order for child support?

Child support is generally determined in accordance with the Arizona Child Support Guidelines. Factors include income, employment benefits, minor children not of the marriage, other support orders and obligations, child care costs, health insurance premium costs, and the time each party spends with the children. If spousal maintenance is an issue, that is generally decided before a child support amount is determined.

What happens if my spouse doesn’t pay their Court-ordered alimony or child support?

Failure of a spouse or ex-spouse to pay Court-ordered spousal maintenance or child support is actionable by pursuing a judgment for arrearages and collecting as with any other judgment, or through a contempt petition process through the Court. Since child support is generally payable through a wage assignment, collection should be automatic. If the state is involved in a case with at least six months child support arrearages, the delinquent payer may also suffer restrictions or suspensions of professional, occupational and/or driver’s licenses.

Will the Court allow me to move out of state with our child?

Unless you have a court order or written agreement that allows you to move out of the state with your child(ren), you must notify the other parent at least 60 days in advance if (a) you share joint legal decision-making or parenting time and (b) you plan to move out of state, or more than 100 miles within the state of Arizona. If the other parent objects within 30 days after notice was made, the court will schedule a hearing to determine whether relocation is in the child(ren)’s best interest. The parent seeking relocation has the burden to prove that relocation is in the child(ren)’s best interest.

What will the Court order for alimony (spousal maintenance)?

The factors that contribute to an award of spousal maintenance include the length of the marriage; employment status and income level; physical, emotional or psychological impairments; employment opportunity; assets; education and training; lifestyle; financial need; cost of health insurance; and any other factor that affects a party’s ability to transition to a single status and the other party’s ability to pay.

What is community property? What is sole and separate property?

Community property is essentially any asset acquired with community funds or for a community purpose, or any separate property converted to community property. If an asset is acquired during the marriage, the legal assumption is that it is community. Exceptions to this include gifts, inheritance, and interest on, or any increase in value in, separate assets.

Sole and separate property belongs to the party acquiring it. This includes property that was owned prior to marriage and that has not been gifted to the community or commingled with community property.

How are our property and debts divided?

The Court will divide community property and debts equitably and will not take into account any alleged marital misconduct. The Court will award each spouse his or her sole and separate property.

Division of certain assets and debts can be complicated. In many cases, what appears to be separate property may be found to be community property. Also, premarital agreements can clarify (and in some cases blur) the distinction between separate and community assets. Because property and debt divisions are often complex, situation-specific and subject to negotiation, it is important to consult with a knowledgeable family attorney so that you are aware of the assets to which you are entitled and the debts for which you are rightfully responsible.

Who is responsible for any taxes that we owe?

Tax obligations incurred during marriage are usually considered to be community obligations, with both parties responsible for payment. In some circumstances, one party may be able to claim an “innocent spouse” exemption.

There can be room for negotiating, with one spouse taking on the full tax obligation in return for some equitable benefit.

What will happen to my business?

If the business is community property, there are some options for how it will be owned after the divorce. It is common for one spouse to take the business and buy out the other’s interest. Less commonly, the spouses split the business, and both run that portion of the business awarded to them. Barring those two options, the spouses generally sell the business and split the net proceeds.

If one of the parties is going to keep the business, a business valuation will probably be required to provide the basis for the community interest in the business. The party who does not receive the business will receive one half its value, generally through some sort of buy-out arrangement or receipt of other property in order to achieve an equitable resolution.

What if the Court awards property to me, but my spouse doesn’t give it to me?

If one spouse fails to obey the orders of the divorce decree (e.g., fails to turn over property, pay debts, or sell or refinance the marital residence), the other spouse may ask the court to enforce the terms of the decree. If the first spouse knowingly and willfully failed to comply with the court’s orders, the other may seek a contempt action.