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An Arizona Divorce Law Primer
Arizona, like many states, "dissolves" marriages rather than divorcing the parties. This results in a dissolution of the marriage meaning that the relationship of husband and wife ceases to exist, as opposed to an annulment which declares that a legal marriage never occurred in the first place.
Beginning the process
A marriage dissolution proceeding is commenced by one party filing a petition with the Superior Court in the county where they reside which must contain the following: The birth date, occupation, social security number and address of each party; the date of the marriage and the place it was performed; the names, birth dates and addresses of all living children, natural or adopted, common to the parties and whether the wife is pregnant; the details of any agreements between the parties as to support, custody and visitation of the children and maintenance of a spouse's statement that the marriage is irretrievably broken, and the nature of the relief sought from the court pertaining to child custody, child support, spousal maintenance and disposition of property. The party filing the petition is known as the Petitioner.
Grounds for a dissolution
The only ground for a dissolution is Arizona is that the marriage is "irretrievably broken." Arizona is a "no-fault" state meaning that it is not necessary for the court to find that one of the parties is to blame for the break up of the marriage. Misconduct on the part of one of the parties is not relevant on the issue of whether the marriage should be dissolved. So long as one party claims that the marriage is over, there is little the other party can do to contest that claim. It is possible to petition the Court of Conciliation to request some assistance in preventing the dissolution from going forward. When the Court of Conciliation is petitioned, the dissolution proceedings are temporarily stopped for up to 120 days until the court determines whether reconciliation is still possible.
Arizona recently enacted a law which recognizes a covenant marriage. A covenant marriage is one where the parties essentially enter into a contract that they will not divorce each other. Since covenant marriages are new, it is not known yet how difficult the process will be to dissolve one. Indeed the very purpose of covenant marriages is to make it less inviting for married couples to end their marriages.
The only issues, beside the grounds for a divorce, which the court has jurisdiction to decide are how to divide the assets and liabilities between the parties, child custody and visitation, child support and spousal maintenance. Bear in mind that these issues may lead to many sub-issues which could involve the value of certain assets such as a house or a family business. One spouse may contend that a certain asset is separate property and not subject to division by the court. Custody determinations might lead into issues of domestic violence or substance abuse. Support and maintenance issues might raise questions about the ability of one spouse or the other to earn money and so on.
Notifying your spouse
After a petition for dissolution is filed with the court, a summons is issued which must be served upon the other party along with several other required documents and notices. The most important of these is known as a preliminary injunction. This is the first order issued by the court in every Arizona dissolution proceeding. The preliminary injunction prohibits each party from transferring, selling or giving away any joint or community property. It also enjoins both parties from disturbing the peace of the other or removing the children of the marriage without the prior written consent of the parties or the permission of the court.
After your spouse has been served, they must respond to the petition within 20 days or else the relief requested may be granted by the court. If the parties expect to negotiate an agreement, it may not be necessary to file a response. If a settlement is not likely, the party who was served with the Petition must file a response. That party is known as the Respondent.
If an agreement cannot be reached between the parties concerning whom the children are going to live with or how much money is needed to help with their expenses, it may be necessary to obtain temporary orders from the court. Temporary orders can also be sought for the right to temporarily live in the family residence, for payment of certain community debts or for spousal maintenance sometimes known as alimony. Sometimes these temporary orders may ripen into permanent orders but only if the parties agree or if the court determines, after trial, that the orders are still appropriate.
Many domestic relations cases in Arizona settle out of court. The parties are often able to reach an agreement on all issues which eliminates the need to go to trial. When a settlement is reached, its terms are often set forth in a Marital Settlement Agreement which is a contract between the divorcing spouses concerning all issues. Both parties must sign a Marital Settlement Agreement before submitting it to the court along with a decree of divorce for the judge to sign. So long as the agreement is fair and equitable and addresses all of the issues that exist between the parties, the court will usually adopt its terms as part of the decree.
If a settlement cannot be reached, it may be necessary to move your case toward trial. Before your case is ready to be tried, it may be advisable to engage in discovery. Discovery is the procedure available to both parties to determine what each party wants and the evidence they have to support their claims. Arizona has a disclosure requirement for all parties involved in contested litigation. Each side must disclose, in writing to the other the factual and legal basis for their claims and defenses. The parties are also required to identify all witnesses and exchange any documents they intend to introduce as exhibits at the time of Mal. Failure to fully disclose may result in the inability to introduce evidence which should have been disclosed.
There are several discovery tools available to each side. The most common ones are written interrogatories, oral depositions, requests for production of documents and requests for admissions. Written interrogatories consist of questions posed to the other party to discovery helpful information such as the identity and value of assets and debts. A deposition is an opportunity for a lawyer to ask spontaneous questions to the opposing party. Although the spouse who is being deposed has the right to have their attorney present, they cannot coach their client or unduly interfere with the questioning process. A deposition is also valuable to "lock-in" the testimony of a party. Since the answers given at a deposition are under oath, they cannot be changed at the time of trial unless there is a good explanation for doing so. Without good cause for a different answer at the time of trial, a party who changes his or her testimony will have their credibility impeached which could adversely reflect upon their overall believability to the judge.
The court does not automatically assign a trial date to your case. One or both of the lawyers must file a document with the clerk requesting the court to schedule a trial date. Trial dates are typically assigned based on the amount of time that is estimated as necessary to try the case. Most routine divorce cases can be tried in a day or less. More complex cases involving a lot of assets or a hotly contested child custody case, may take two or more days to try.
At trial the Petitioner has the burden of going forward which means that the spouse who filed the Petition goes first. The Petitioner has the burden of proving his or her claims while the Respondent has a similar burden with respect to his or her claims. Generally, the burden of proof which a party must meet is a preponderance of evidence. This means that the weight or credibility to support a factual finding is greater than the evidence opposing it. The Respondent may also have the burden of providing evidence which either contradicts or disproves the Petitioner's case while the Petitioner may be given the opportunity to introduce evidence which rebuts the Respondent's case. Each side has the right to object to the introduction of evidence if it does not satisfy the complex rules which define what is and is not admissible. The court must rule on all objections so that a record of the trial proceedings is made in the event of an appeal.
The Petitioner presents his or her evidence first. Evidence consists of witness testimony, documents, charts, photographs or any other tangible thing which tends to prove the existence of a fact that is essential to the success of the Petitioner's case. Each of the Petitioner's witnesses may be cross examined by the Respondent's lawyer. The purpose of cross examination is primarily to test the truthfulness and reliability of the evidence introduced by the opposing party. The Petitioner's attorney is also provided an opportunity to cross examine the Respondent's witnesses during the Respondent's phase of the trial.
After the Petitioner rests, the Respondent may introduce evidence in the same way that the Petitioner did. Following cross examination of each witness by the Petitioner, the Respondent will eventually rest at which time the court may ask for closing arguments from each lawyer.
Closing arguments are intended to help gather all of the admitted evidence into a cohesive whole in order to help the judge decide the case. This is also the time for each lawyer to offer persuasive arguments on any important points of law which might help the judge make a decision. During closing remarks, the judge will often question each lawyer about points of law which should be answered directly and candidly by each lawyer.
After closing arguments, the case is submitted to the judge for a decision. Except in very simple cases with few issues, most judges will take a case under submission or advisement which means they will take the exhibits and other evidence back into chambers for further review and consideration before rendering a judgment. Most submitted cases are decided within just a few days although by law, a judge has up to 100 days to make a ruling.
Even though Arizona is a community property state, which means that the spouses each own an equal share of all of the assets, the court does not typically divide everything in half. It is often not practical to do so or sometimes, the fats of the case may not justify an equal division. The court recognizes that assets may have to be liquidated or sold which could result in losses both economic and emotional.
Often what happens is that different assets are awarded in kind to each spouse. The goal of the court is to reach an equitable division of all community assets and liabilities. This could result in one spouse receiving assets with a greater value than the other. The court will likely also order that spouse to assume more debt in order to offset the extra value of the assets awarded to that spouse.
If the parties cannot agree on how to divide the assets and debts, or the court is not provided with a plan by one or both spouses on how to do so, the court may either award certain property and assets to each spouse or in some cases, order that an asset be sold and the proceeds equitably divided between the parties.
After the court renders a ruling it does not become final until a judgment is signed and entered. Once a judgment has been entered, the clock starts ticking for some important time limitations which effect the right to post-judgment relief.
Post judgment relief may take the form of a motion for a new trial which is filed in the trial court. A motion for a new trial must be made within a certain number of days after the judgment is entered or the right to do so is lost. A motion for a new trial must be supported by very specific grounds stated in the Rules of Civil Procedure. Motions for a new trial are infrequently granted but they may be useful in extending the amount of time for filing an appeal.
Another form of post judgment relief is an appeal. A notice of appeal must be filed within 30 days after entry of the judgment unless the time has been extended by a motion for new trial. Failure to file a timely notice eliminates the right to appeal except possibly for some very narrow and limited circumstances. There must be grounds for an appeal. Even if the trial court erred in excluding certain evidence, that does not automatically mean the appeal court will reverse the lower court's judgment. Sometimes trial judges commit harmless error which means that the judge's mistake was not fatal to the outcome of the case. If an appeal is successful, the Court of Appeals may reverse and remand the case back to the trial court for further proceedings.
Post-Judgment Enforcement and Modification
After a divorce case is completed whether by settlement, trial or appeal, eventually a final judgment will exist. The parties are bound by the terms of that final judgment and if they fail to carry out its terms, they may be subject to certain penalties or consequences. There are several remedies available to enforce compliance with a judgment. These include contempt proceedings, wage assignments or garnishment proceedings to recover past due child support, loss of driving privileges or a license to engage in certain professional activities.
Arizona does not consider marital misconduct when determining property division.
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