One of the most important periods during a divorce, annulment or legal separation is the beginning and an experienced attorney can help you develop the best strategy. There are many preliminary decisions to be made, such as how to handle joint funds before the divorce and where the children will be while the divorce proceeds. Divorce can be a long and tedious process and you will want an attorney who is both knowledgeable and empathetic.
- The legal term for divorce is “dissolution of marriage”
- Arizona is a “no-fault” divorce state. This means that regardless of the behavior of the spouses, you only need to prove that the marriage is “irretrievably broken with no reasonable prospect of reconciliation.”
- In order to file for a divorce in the State of Arizona you must meet certain minimum residency standards. You must have lived in Arizona or have been stationed here as a member of the United States military for at least 90 days before filing for divorce.
- If you file for divorce and the other spouse is served with the paperwork, you must wait a minimum of 60 days before the court can consider your decree for a divorce. Arizona has an interest in maintaining stable family units and they require the 60 day “cooling off” period to ensure that the parties fully intend to permanently separate.
I’ve had a few attorneys since my divorce in 2005 and Judd has been the best of all of them. He responds so quickly I sometimes wonder if I’m his only client (I’m obviously not).
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What is a consent decree divorce?
A consent decree divorce occurs after the filing of papers for divorce and, if you have minor children, both parents have attended and completed mandatory parent education coursework. After this, both sides can agree to work together and negotiate a mutually agreeable plan to end the marriage. Under Arizona Rule of Family Law Procedure 45 (B), many things must be considered when ending a divorce without court involvement and your attorney should advise you on all of these things:
- Settlement of debts
- Child custody, support and parenting time issues
- Spousal maintenance, if any
- Final division of community property assets between the spouses
If both spouses can agree on all of these things, then the attorney(s) can submit it to the court for approval of the consent decree. This saves a great deal of time, effort and expense because you forego a formal court hearing and waiting for a trial date that can take four to six months to arrive. The family courts are notoriously backlogged and it is in your best interest to avoid litigation and trial if at all possible.
What is a divorce by default?
When a petition for divorce is filed in Arizona, the person filing is known as the “petitioner.” The spouse that did not file is known as the “respondent” because they will, in most cases, be responding to the petitioner’s divorce filing. After the respondent is served with divorce papers, they have 20 days to file their response and either: agree to the petitioner’s plan or advance an alternative plan for handling the dissolution of the marriage. If the respondent fails to respond to the petition, the petitioner may then file an application for default. If an additional 10 days pass without a response from the respondent, the petitioner can then set a hearing date with the court for entry of the petitioner’s divorce degree granting the petitioner what they ask for. A.R.F.L.P. Rule 44.
If you are the respondent and have been served with papers, you need to talk with an attorney immediately to protect your rights. 20 days is a very short window of time and once a default is entered against you, it is very difficult to vindicate your rights. Even if you agree with the decree filed by the petitioner, it is likely in your best interest to work cooperatively with them and come up with a mutual consent divorce decree.
What is the difference between divorce and legal separation?
There are several reasons that a couple would want to end their marriage but not file for full-fledged divorce. One of the primary reasons is because of religious affiliation. Some religions explicitly forbid divorce, but allow a couple to part ways if they can no longer live together. This allows the couple the freedom to live apart while not violating their religious belief. Another reason may be health insurance considerations. This applies where one spouse needs robust healthcare and can only get it through the other spouse. In this case, the parties may be able to agree that they cannot live together but need to remain legally married.
A legal separation is done in the same fashion as a regular dissolution of marriage. One party files a petition for separation and the other party responds. The key difference between legal separation and dissolution of marriage is that both spouses MUST agree to separate. A divorce can be one sided even if one party does not want to end the marriage. Hence, the concept of a default divorce decree. Legal separation must be mutual.
Would an annulment of our marriage be better?
It depends on your circumstances and an attorney would be able to help you fully understand your options. Typically a divorce or legal separation is faster than seeking an annulment, but in some cases, couples want it to be as if their marriage never occurred. Like a legal separation, there could be religious reasons for this. As per Arizona Revised Statute 25-301, an annulment can be sought at any time during a marriage if the parties want to end their union without a divorce or if their marriage is “voidable.” The procedure is generally the same as if you are seeking a divorce. Some reasons for seeking an annulment include:
- One or both of the parties are underage
- One party is currently married to another person (i.e. bigamy)
- One or both parties was intoxicated or otherwise incapacitated at the time of marriage
- The parties are too closely related to be legally married
- There was fraud or misrepresentation on the part of a party. This could include gender, religion or other forms of deceit.
There are many reasons that you or your partner may want a divorce. It is a stressful process to endure and you will want a compassionate attorney who understands the law representing your interests. Attorney Judd Nemiro has the experience and temperament to fight for your rights and listen to your concerns. He stays up to date on the latest changes in statutory and case law and he can help you. Call his office today for a case evaluation!
Phoenix Divorce Attorney Answers Your Law Questions
Judd Nemiro is a divorce lawyer located in Phoenix, Arizona. In this video he answers common questions related to the divorce process.