How Do I Get a Divorce in Arizona?
Frequently Asked Questions MenuNOTE: This FAQ is intended to provide general information about divorce. It is not a complete nor authoritative review of this subject and reflects the laws of the state of Arizona only as of the date of its publication. The booklet is not intended to be a guide to obtaining a divorce. Divorce often involves important issues about the legal rights of the spouses and of any children involved. Questions about specific situations should be discussed with an attorney. Divorce in Arizona - FAQNOTE: This FAQ is intended to provide general information about divorce. It is not a complete nor authoritative review of this subject and reflects the laws of the state of Arizona only as of the date of its publication. The booklet is not intended to be a guide to obtaining a divorce. Divorce often involves important issues about the legal rights of the spouses and of any children involved. Questions about specific situations should be discussed with an attorney. Only the court can legally end a marriage. However, spouses are free to agree to as many terms of the divorce as possible. Court services are available in several counties to assist in reaching agreements about such matters as parenting time and custody of children. Because agreements between spouses leave fewer issues for the court to decide, the result often is more satisfying to the people involved and may speed the process of concluding the court case. If you have children and issues of child custody or parenting time are involved, other information is provided on this website under Child Custody and Visitation and Child Support. When seeking a divorce and a party has requested that the Superior Court determine custody, specific parenting time or child support, parents of minor children are required by state law (section 25-351 et seq. Arizona Revised Statutes) to attend an education class. Information about the Parent Education Class is available on this web site under the subtopic Other Family Issues. What is divorce?Divorce is a court process to legally end a marriage. In Arizona a divorce is called a "dissolution of marriage." In addition to ending the marriage, a divorce may also deal with how property and debts of the spouses are divided between them and whether one spouse should pay support (alimony) to the other. If children are involved, a divorce also resolves custody, parenting time and child support issues. What is a divorce "Decree?"The Decree is the final order of the court legally ending the marriage. Spouses are not "divorced" until the court grants the divorce and the Decree is signed by the judge. The Decree may also contain other orders deciding how the spouses' property and debts will be divided and what financial support, if any, will be paid by one spouse to the other. If children are involved, the Decree also will provide for custody, parenting time and child support. Where do I get a divorce?In Arizona, only the Superior Court can grant a divorce. To get a divorce, one spouse must start a court case in the Superior Court. Although the Superior Court has a facility in each Arizona county, a court case to end a marriage must be started in the county where the person requesting the divorce lives. Who can start a divorce case?In Arizona, either spouse can ask the court for a divorce. A divorce is not awarded to either spouse; rather, it simply changes the status of the marriage relationship. When can I start a divorce case?Before starting the court case, either the husband or wife must have lived in Arizona for at least 90 days or have been a member of the armed forces stationed in Arizona for at least 90 days. Unless Arizona was the last state where you lived together with your spouse, issues regarding custody of children may require a longer residence time in order to deal with those issues. What "reasons" do I need to start a divorce case?Unlike some other states, for most marriages Arizona does not require that one of the spouses prove blame or responsibility in order to end the marriage. Under Arizona law, the only question for the court is whether the marriage is "irretrievably broken," meaning that there is no reasonable chance that the spouses want to keep the marriage together. If you have a covenant marriage (see Covenant Marriage under the subtopic Other Family Issues), however, under state law the court cannot grant a divorce unless certain things such as adultery, abandonment, physical abuse or regular substance abuse are proven or unless both spouses agree that the marriage should end. (The reasons for ending a covenant marriage are listed in section 25-903, Arizona Revised Statutes.) Can the court help with marriage problems before getting a divorce?Yes. Because ending a marriage is a serious step with many legal and personal results, the Superior Court in many counties has trained family counselors and mediators available to assist couples in discussing marital problems and disputes involving children, without involving attorneys and judges. These Conciliation Services can be requested before someone files a divorce case or even after the case is started. Contact the Superior Court in your county for more information. Can I represent myself in court?It is not required that you have an attorney to represent you in a divorce case. You must, however, follow the same rules and procedures as attorneys. All legal papers must be in the proper form and filed on time. The judges, clerks and staff of the court are not permitted to give you legal advice. Divorce cases often involve important issues about property and debt division, financial support and if children are involved, child custody and parenting time. If you have legal questions about your legal rights, you should ask an attorney. How long does it take to get a divorce?Under state law (section 25-329, Arizona Revised Statutes), a divorce cannot be granted by the court until at least 60 days after the first court papers are delivered to the other spouse. If the spouses are in agreement about getting a divorce and other issues (such as how to divide property and debts), the divorce can be finalized soon after the 60-day waiting period is over. If the spouses are not in agreement on how to settle all issues, the time it takes will depend on how complicated the issues are and on the court's schedule. Can a woman go back to using her maiden name after the divorce?Yes. State law (section 25-325, Arizona Revised Statutes) allows a woman to return to ("restore") the use of her former name at the time the marriage is ended. A request must be made to the court at any time before the divorce Decree is signed by the judge. Usually, the request is included in the first papers filed in the divorce case. What if I change my mind after starting a divorce case?If you and your spouse decide to stay married, the divorce case can be canceled (or "dismissed") by filing a request with the Clerk of Superior Court. What is "community property?"Community property is property acquired by the spouses during the marriage. Generally, the law presumes that any property purchased or obtained by either spouse during the marriage is community property. Community property is not just land or buildings. It includes all kinds of property, such as money (all forms-cash, bank accounts, investment accounts), jewelry, home furnishings, automobiles, boats, stock options and the wages or earnings of either spouse during the marriage. Even retirement plans and pensions can be part of the community property estate. Is everything the spouses own community property?Not necessarily. State law provides that property (of all types) owned by a person before marriage can remain the "separate property" of that spouse. Also items that a spouse receives by gift or inheritance during the marriage (and any increase in those items, such as through growth in value, interest earned or profits) are also the separate property of the spouse. Why is it important to know the difference between community property and separate property?It is important to know what community property the spouses have because in a dissolution case the court is required by law to divide the community property in a fair (not necessarily equal) way. You must be able to show the court adequate proof of what you are claiming as your separate property, as the court must decide which property is separate property belonging to each spouse. If a retirement plan is involved, the court may have to sign a special order (a "Qualified Domestic Relations Order") so the company that keeps the retirement account can divide the money/benefits acquired during the marriage properly between the spouses. Can we decide ourselves how to divide our property?Spouses are encouraged to resolve as many issues as possible. One way to do this is by a written agreement (called a "separation agreement") indicating how matters should be handled if the marriage ends. The separation agreement is a contract listing and describing the spouses' decisions about ownership of real estate, dividing property, financial support and, if children are involved, even issues of custody and parenting time. In a divorce case, the court must accept the separation agreement (except for matters about custody, parenting time and support of children) unless it is unfair. How do I start a divorce case?To get a divorce, one spouse must start a court case in the Superior Court. There are particular steps that must be followed. These steps are controlled both by state law and rules and sometimes also by local rules and procedures. Before starting the case, check the rules and procedures for your county. To begin the court case, one of the spouses must file with the Clerk of Superior Court a written request called a "Petition." A filing fee of $171.00 must be paid to the Clerk of Superior Court at the time of filing. This amount is set by state law. There may be local laws that add amounts to this basic fee. (For example, in Maricopa County an additional $20 is charged.) If unable to pay, the Petitioner can ask the court to postpone ("defer") or forgive ("waive") payment by filing a written application with the Clerk of Superior Court. The court is open Monday through Friday from 8:00 a.m. to 5:00 p.m.
What is a Petition?The Petition is the legal paper that asks the court to legally end the marriage and to issue other orders necessary to deal with the spouses' property and debts as well as financial support. If children are involved, the Petition also should include specific requests for custody, parenting time and child support. The Petition is an important legal document because generally the court cannot give a spouse anything that is not requested and included in the Petition. As with all papers filed in court, the form of the Petition must comply with court rules and state laws governing size, spacing and content. Forms available in Self-Service Centers for the Superior Court have been developed to comply with these requirements. Correct forms also are available on the Internet at this website address: What do the words "Petitioner" and "Respondent" mean?In any legal case, the people involved are referred to by words that describe their role in the case. In a divorce case, the person who starts the court case by filing the Petition is called the "Petitioner." The other spouse is called the "Respondent" because that spouse can file a paper answering the Petition that is called a "Response." What other papers do I need when I start the divorce case?With the Petition, the Petitioner must also fill out and have available for the Clerk of Superior Court at the time of filing four other documents:
Three copies of these forms should be brought to the Clerk of Superior Court's office when the case is started. The Clerk of Superior Court keeps the original papers and the copies are stamped, one set to be kept by the Petitioner and one set to be given to the Respondent. Most counties also require that the Petitioner complete a Civil Cover Sheet. This is a standardized form containing information about the parties that will assist in processing the case. If minor children are involved, the Petitioner also may have to complete a form sometimes called an Affidavit Regarding Minor Children. Why is the Summons important?The Summons is the official court paper that tells the other spouse that a divorce case has been started and that some action must be taken if the other spouse wants to be heard by the court. It also tells the spouse that there is a time limit in which to act. The Summons must be signed and stamped by the Clerk of Superior Court to be official. The divorce case cannot go forward until the Summons (with the Petition and other papers) is delivered to the spouse in the proper way. What is the Preliminary Injunction about?The Preliminary Injunction prevents ("enjoins") each spouse from doing certain things that might damage the person, property or legal rights of the other spouse. The purpose of the Preliminary Injunction is to keep each spouse from making decisions or taking actions about money and property belonging to both spouses and about the legal interests of any minor children until written agreement is reached by the parties or the court has had the opportunity to make fair decisions about these matters. As much as possible, it keeps everything as it was during the marriage while the divorce case is before the court. The Preliminary Injunction is an official court order that is effective until the divorce case has ended. Basically, the Preliminary Injunction does these things:
What do I do after the Petition is filed?Under the United States' system of constitutional law, the court cannot act in a case unless all interested persons are notified and have a chance to be heard. In a divorce case, this means that the papers initially filed by the Petitioner must be made available to the other spouse, who then can reply to the court. What is meant by "service" of papers?Giving notice to the other spouse that a divorce case has been started is called "service" and is done by giving ("serving") copies of the Summons, Petition and other papers which the Petitioner filed to the other spouse. How do I have the Summons and Petition served?Legal papers must be served by certain people in a particular way according to court rules (Rules 4.1 and 4.2 of the Arizona Rules of Civil Procedure). Different rules apply in different circumstances. Service on a person living in Arizona generally is best made by delivering copies of the papers directly to the spouse or by leaving copies with a person of reasonable age who lives in the spouse's home (for example, a parent or roommate of the spouse.) The Petitioner is not authorized to serve legal papers. If service is made in the State of Arizona, the papers must be delivered by a deputy Sheriff or a person (called a "process server") who is specially registered with the court to serve legal documents. The Sheriff and the process server charge a fee for performing this task (these fees vary from county to county and the Sheriff and the process server do not necessarily charge the same price). A person may apply to the court for deferral or waiver of the fee charged by the Sheriff, but not by a process server. What if I do not know where the Respondent lives?If you do not know where the Respondent lives but the last known residence was in Arizona, service may be made by publishing a copy of the Summons in a newspaper for four consecutive weeks. Consult Rule 4.1 of the Arizona Rules of Civil Procedure for the correct process. NOTE: When service is made by publication, the court is limited in its authority to make orders in the case. For example, the court could not order that the Respondent pay financial support for the Petitioner or for any children. How long do I have to serve the Summons and Petition?The Summons and a copy of the Petition and other required papers must be served within 120 days of filing the Petition. (The court can allow more time if a request is made before the 120 days runs out.) Otherwise the court case will be ended ("dismissed") and must be started again. How does the court know if the Respondent has been served?After the Summons and Petition are served on the Respondent, a written statement (called an "Affidavit of Service" or a "Proof of Service") must be filed with the Clerk of Superior Court. A Sheriff or process server usually files the written statement on behalf of the Petitioner when service is made in the state. If service by publication is used, a written statement sworn under oath ( an "affidavit") must be filed with the court along with a copy of the notice published in the newspaper. Can the Respondent simply agree to receive the Summons and Petition?Yes. The Respondent may sign a paper ("Acceptance of Service of Process") agreeing to accept service of copies of the Summons, Petition and other required papers rather than have a Sheriff or process server deliver them. The Respondent also may sign a paper ("Waiver of Service of Process") agreeing not to receive the Summons and Petition at all. In either case, the agreement does not mean that the Respondent consents to things the Petitioner has asked the court to do. It means only that the Respondent admits receiving the Summons and Petition or does not want to have them formally served. This way of serving papers is allowed by court rules and eliminates the cost of having the sheriff or a process server deliver the papers. However, it is only useful when the Respondent cooperates with the Petitioner. This sometimes happens when both parties agree to end the marriage and want to make the divorce case go as quickly as possible. This method should not be attempted if domestic violence or the personal safety of the Petitioner is a concern. If the Respondent either accepts or waives service, the signed form must be filed with the Clerk of Superior Court so the record shows that service actually was made. What happens after the first papers are served?After the Respondent is served with the initial papers in the case, that spouse has the right to reply to the requests made in the Petition. How do I reply to a Petition after it is served?Forms available in Superior Court Self-Service Centers have been developed to comply with these requirements. Correct forms also are available on the Internet at this website address: Does the Response have to be served like the Petition?No. All papers of either spouse must be filed with the Clerk of Superior Court. Copies of these papers also must be made available to the other spouse. But after the Summons and Petition are served on the Respondent, all other papers may be mailed to the other spouse or to the other spouse's attorney, if that attorney has filed papers in the case. The Response may be served on the Petitioner by first class mail. How long does the Respondent have to serve the Response?There is a time limit for filing the Response. Court rules provide that the Response must be filed within 20 days of the date that the Summons and Petition are served on the Respondent, or within 30 days if service is made on the Respondent outside the state. What if no Response is filed?When no Response is filed, the Respondent loses the chance to be involved in the court case and the court may end the marriage by a "default divorce." What is a "default divorce"?If the Response is not filed within the time allowed (20 or 30 days depending on where the Summons and Petition were served), the court may grant the requests made in the Petition and sign the Divorce Decree without an opportunity for the Respondent to participate. This is known as getting a divorce by "default." How do I get a divorce by default?There are several steps to get a divorce by default (but first you must wait until the time for the Respondent to file a Response has run out):
Why is the default application mailed to the Respondent?Although the Respondent has failed to act in time and the default has been entered in the court record, the default does not become effective for 10 days after the application is filed. Within that time, the Respondent is given another opportunity to file a Response. If the Respondent acts within this ten-day period, the case will proceed as if there were no default. Is a divorce automatically granted when the ten days run out?No. If the Respondent continues to be in default after the ten-day period has expired, the court may end the marriage and make other necessary orders without the Respondent participating. First, the court must hear evidence from the Petitioner to be sure there is reason to dissolve the marriage and to be sure all issues of property, children, support and any other issues are dealt with. How does the court hear evidence for a default divorce?A court session called a "hearing" is scheduled before a judge or commissioner of the court at a particular time at the courthouse for the court to obtain the necessary information. The Petitioner must appear before the court to give information or answer questions. Usually the hearing is brief and informal. If a person does not have an attorney, the judge or commissioner asks questions about the Petitioner's residence in Arizona, the breakdown of the marriage, property and financial support issues. If children are involved, the court will also inquire about custody, parenting time and child support. How soon can the default hearing be scheduled?By state law (section 25-329, Arizona Revised Statutes), the court may not hold a default hearing for at least sixty days after the date that the Summons and Petition are served on the Respondent (or the date the Respondent accepts or waives service, if that is the way service was made). This is the earliest time a person may ask the court for a divorce by default. How do I know when the default hearing will be held?The way default hearings are scheduled is not the same in all counties. For example, in Maricopa County, the Petitioner must prepare a form called a "Request for a Default Hearing" and mail it to the court with a large self-addressed envelope. The court file is reviewed and if all papers are in order, the Petitioner will then be mailed a notice that a default hearing has been scheduled for a certain date and time. In Pima County, time is set aside each afternoon for hearing default cases and the Petitioner may choose the most convenient day. Check with the Clerk of Superior Court in your county to learn what to do. Who prepares the Divorce Decree?The Petitioner prepares the Decree for signature by the judge or commissioner. When preparing the Decree, it is important to repeat as closely as possible what was requested in the Petition. When a case ends by default, the court generally cannot issue orders that differ from what the Petition originally requested. (For example, if the Petition does not ask for financial support for a spouse, the Decree cannot order that the Respondent pay support.) The Decree should deal with all property, debt, support and child-related issues. It is likely that the judge or commissioner will not sign the Decree if different or additional things are requested. The Petition, then, must be as specific and complete as possible when it is filed. What if the Respondent does not default and a Response is filed?If the Respondent files a Response with the court disagreeing with any of the requests made in the Petition and no agreements are reached, a trial is scheduled to resolve the disputes between the spouses. Court rules and procedures determine when the trial will be held, but a period of time will be allowed for the spouses to gather information about any issues that are disputed. At a trial, each spouse must present evidence to support claims made. The court will decide how to divide the property and debts of the spouses, make any orders for financial support and make orders regarding the children, if any. At any time before the trial is held, the spouses may reach agreements about the disputed issues and may avoid a trial by asking the court to grant a decree ("Consent Decree") based on their agreement. The steps and procedures for getting a divorce generally apply to all cases, including those where the spouses have minor children together. When children are involved, however, the court has a special responsibility to decide matters of legal custody, parenting time and child support. Even if the marriage ends by default, the court must inquire about these issues and make orders that are in a child's best interests. Divorce When Children are InvolvedWhen there are minor children, each parent is required by law to complete an educational class. For more information, see the note at the end of this section. What if the children need support while the court case is still in progress?Once a divorce case is started, either spouse may ask the court to issue orders for temporary support of a child. This "temporary order" lasts until the court makes a final decision in the Decree that ends the marriage. What about custody and parenting time?When a divorce case is started, the court automatically has authority to decide issues about custody of any children involved. If there are disputes between the parents about custody or parenting time, in most counties the court generally directs the parents to meet with trained court professionals and try to come to an agreement through discussions called "mediation." If the parents cannot agree, the court must decide these issues. A Note About Parent EducationIn 1996, the Arizona State Legislature established a Domestic Relations Education on Children's Issues Program, now offered in each Arizona county. This program sometimes is referred to as the "parent education program" or "parent information program." Although the programs may differ somewhat in each county or even within counties, each is designed to offer education to parents about the impact that divorce, the restructuring of families and judicial involvement have on children. The Arizona Supreme Court sets minimum standards for these programs, including presenters' qualifications. Parents who have a child in common who is less than eighteen years old must complete the program when involved in a court case for divorce or legal separation. Unmarried parents involved in any court case to establish paternity or maternity must also complete the program if the court has been asked to decide custody, parenting time or child support. Parents of minor children may also be ordered to attend the program if, after determining paternity or obtaining a divorce or a legal separation, disputes regarding custody, parenting time or child support are presented to the court. Parents who fail to attend the program as ordered may be refused any specific request for court action, may be held in contempt of court or may have other penalties imposed. The program lasts up to four hours and a fee of no more the $30 may be charged to each participant. © 2001 Arizona Supreme Court |