Divorce in Arizona-Frequently Asked Questions
How long does it take to get divorced?
Minimum: 64 days after service of the initial divorce documents. A 64-day divorce generally occurs only in cases without children and with little to no assets or debts.
Maximum: Complex cases such as those where custody/parenting time is contested, involving substantial assets, valuation and division of businesses, disputes over whether all or some of the property is sole and separate, and contested Spousal Maintenance (alimony) cases can sometimes take a year or more.
What is the significance of the date the initial paperwork is served on the other party?
The date the initial paperwork is served on the other party (date of service) is extremely important. Generally, all community assets and debts acquired prior to that date will be divided between the parties. Assets acquired, and debts incurred after the date of service are generally deemed solely owned or the sole responsibility of the party acquiring the asset or incurring the debt. Think of it as the Court taking a photograph of all the community assets and debts on the date of service. Only those items in the photograph will be divided. Another way of looking at it is, if, for example you bought a lottery ticket prior to the date of service but the drawing was after the date of service, because the lottery ticket was purchased prior to the date of service, the winnings would be community property and therefore, divided.
How is my spouse served with the initial paperwork?
The two most common ways to serve are by having the opposing party sign a document before a notary acknowledging that they received the initial paperwork. This is called an “Acceptance of Service.” The date of service is the date the Acceptance of Service was signed before the notary.
The second most common method of service occurs when a process server delivers the papers to the non-filing spouse. The process server asks the person if they are John Smith and if they reply yes, the papers are deemed served on that date. Mr. Smith is not required to sign anything to verify he was served. A word of caution: If a process server is serving Mr. Smith where he resides, even if the person answering the door is not Mr. Smith but confirms that Mr. Smith lives there, Mr. Smith will be deemed served. The person answering the door must be “of suitable age and discretion” which generally means the person must be at least 12 years old.
Less common methods of service can are by registered mail or publication.
What should I do if I get served?
Within 20 days of being served (30 days if you are served out of state), you must file an Answer. Your Answer must be filed in the Superior Court with a copy sent to your spouse or your spouse’s lawyer. If you do not file an answer within this time, the other side can file an “Application for Default.” This is your final notice to file an Answer within 10 days of the date the Application for Default is filed. The Application for Default is mailed to you so even though you may receive it several days after it is filed, the 10-day period begins to run on the date the Application for Default is filed.
What happens if I don’t file an Answer?
If you don’t file an Answer, you can be “defaulted.” This means that the spouse that filed may be able to have the court enter a final Divorce Decree without your input. It is always best to file an Answer even if you think you agree with the requests set forth in the initial paperwork. Filing a timely Answer ensures that you have a say in the process to make sure your best interests are protected.
Do we have to go to Court?
If parties agree on everything, a “Consent Decree” signed by both parties and their attorneys (if applicable) is sent to the assigned Judge. The Judge will review the Consent Decree and any other documents submitted, and, if everything is in order, the Judge will sign and enter the Decree to finalize your case.
If parties don’t agree on all issues, a Trial will be held so that the Judge can decide the unresolved issues. Generally, the Judge must issue his/her decision within 60 days after the trial. The Judge’s decision is usually the final Decree, although sometimes the Judge will instruct one of the lawyers to prepare a final Decree to include the Judge’s decision.
If no answer has been filed, the filing party may have to go to Court for a brief hearing so the Judge can enter the Decree by default,
What if my spouse says he/she won't "give" me a divorce?
If requested by either party, the Court must enter a Divorce Decree. Although the spouse who doesn’t want the Divorce can do some things to delay it, eventually, the Divorce will be granted.
What’s the difference between Sole versus Joint Legal Decision Making (Custody)?
In Arizona, “Custody” is referred to as “Legal Decision Making.”
Sole Legal Decision Making gives one parent the right and responsibility to make all major, nonemergency legal decisions including education, health care, religious training and personal care decisions. Technically, the parent is not required to discuss or consult with the other parent. However, even if a parent has Sole Legal Decision Making, it is always best to discuss and obtain the input of the other parent if possible.
Joint Legal Decision-Making means both parents share decision making and neither parent’s rights or responsibilities are superior. In some cases, although the parties may have Joint Legal Decision Making, the Court order may grant one party final Decision Making over specific issues.
If I have Joint Legal Decision Making, does that mean I have my child 50% of the time?
No. Having Joint or Sole Legal Decision Making has nothing to do with the amount of time you have your child. When and how much your child is in your care is called “Parenting Time.”
There are several different Parenting Time schedules. It is possible for one parent to have Sole Legal Decision Making even though the parents have equal Parenting Time.
Parenting time is based on several factors, some of which are the age of the child, the parent’s work schedules, the distance between the parent’s homes, the relationship between the parent and child, the child’s wishes, the mental and physical health of the parents and the child, domestic violence or child abuse and several other factors.
How is Child Support Determined?
There are essentially 5 factors that determine the amount of child support. These factors are:
· Gross income of the parties
· If there are any other natural or adopted minor children
· The cost of child care
· The cost of medical, dental and vision insurance for the children
· Any extra-ordinary needs of the children
· The amount of parenting time
A child support worksheet containing this information is prepared to calculate the amount of child support based on guidelines adopted by the Arizona Supreme Court. In some instances, the Court may deviate from the calculated amount if there are reasons for doing so and the deviated amount is found to be in the children’s best interests.
How is Spousal Maintenance (Alimony) determined?
Whether a party is entitled to Spousal Maintenance and if so, the amount and length of time of Spousal Maintenance is one of the most difficult areas to advise clients. Arizona does not have guidelines for spousal maintenance and common beliefs, such as you must be married for at least 10 years or you must be a certain age, are all myths.
Judges consider a two-prong analysis in deciding this issue.
A party must qualify under one of the following criteria:
1) The party lacks sufficient property (including property they receive in the divorce)
to provide for their reasonable needs.
2) The party is unable to be self-sufficient, is the custodian of a child whose age or
condition suggests that parent should not be required to seek employment outside the home or lacks adequate earning ability to be self-sufficient.
3) The party has made a significant financial or other contribution to the education, training, vocational skills, career or earning ability of the other spouse.
4) Had a long marriage and the age of the spouse precludes the possibility of finding employment necessary to be self-sufficient.
5) The party has significantly reduced their income or career opportunities for the benefit of the other spouse.
If a party qualifies under one of the above, the Judge considers the factors in Prong 2.
Prong 2 -Amount and Duration
The Judge is required to consider 13 different factors to determine how much and how long the
Spousal Maintenance should be paid. Some of these factors include the length of the marriage, the age, employment history, earning ability and physical and mental condition of the spouse requesting Spousal Maintenance, the marital standard of living, the expenses and needs of both parties and the time necessary to acquire sufficient training or education to become self-sufficient.
Because each Judge may have differing views on these factors, there is little to no predictability on the ultimate decision reached by the Judge.
Will my spouse have to pay my Attorney’s Fees?
Like Spousal Maintenance, a Judge’s decision on whether your spouse will have to pay (reimburse you) for Attorney’s Fees is discretionary. If the Judge determines that your spouse is in a better financial position or that he/she acted unreasonably, the Court may order your spouse to pay some or all of your Attorney’s Fees.
There are numerous other issues and questions that may arise in any divorce. It is always
best to have an attorney represent you to navigate through this often complex and emotional process. If you are interested in discussing your matter in more detail, please contact me at:
Zalena M. Kersting
Law Office of Zalena M. Kersting
633 E. Ray Road #134
Gilbert, AZ 85296