Understanding the Divorce Process

At a time when your life can feel like it's in utter chaos, sometimes the smallest bit of predictability can bring a sense of comfort. The outcome of many aspects of your divorce may be unknown, and that certainly increases your fear and anxiety. However, there is one part of your divorce that does have some measure of predictability and that is the divorce process itself. This book is designed to assist you in understanding the process and reduce some of the fear and anxiety about it.

Going through the divorce process can be a frightening and often intimidating experience. Many people have never had to meet with a lawyer before, or been involved in any type of litigation. At the same time you are facing the challenges of understanding the legal process, you are also trying to address the emotional issues that often come with the decision to terminate a marriage. The goal of this book is to make you more comfortable with the process, and help you make intelligent and informed decisions about your future.

Your lawyer may explain many of the items in this book in the first consultation. However, you likely will not remember everything that is said during that first meeting. Not only is there so much information given during the first consultation, but you are often not in the proper emotional state to fully understand everything that is being said. Accordingly, this book will help to refresh some of the things that were discussed with your lawyer and also prompt you to ask questions about topics you may not remember.

Most divorces proceed in a step-by-step manner. Despite the uniqueness of your divorce, you can generally count on one phase of your divorce following the next. Sometimes just realizing you are completing stages and moving forward with your divorce reassures you that you are on the correct path.

The first step is to develop a basic understanding of the divorce process. This will lower your anxiety when your attorney starts talking about "depositions" or "going to trial" and you feel your heart start pounding in fear, or get anxious about what that actually means. Understanding the steps will also reduce your frustration about the length of the process because you will understand why each step is needed. Each step in the process is like climbing stairs that help you prepare for what comes next. More importantly, understanding the divorce process will make your experience of the entire divorce easier.

1.1 What is my first step?

Find a law firm that handles divorces as a regular part of its law practice. The best recommendations come from people who have knowledge of a lawyer's experience and reputation. Take your time in choosing a lawyer who is right for your case. This is one of the most important decisions you will make with respect to your divorce. Find an attorney you are comfortable discussing your case with as the attorney will likely learn more about your life than is known or shared with even close friends and family. Having a comfort level that this is a person you can speak with freely, who understands your situation, and who will competently represent you is important. The state bar of Arizona has a list of attorneys who have been certified as specialists in family law if you need to obtain names of potential lawyers in the area of family law.

Even if you are not ready to file for divorce, you may find it helpful to schedule an appointment with a lawyer to obtain basic information about protecting yourself and your children. Many times these initial consultations are to simply explore the process so you know what to expect, especially if you believe your spouse is planning on filing for divorce.

Ask what documents you should bring to your initial consultation. Write down specific questions to ask the attorney, so you will not forget some of them. In addition to specific questions unique to your circumstances, your questions should include: the attorney's approach to dividing assets, whether your case will involve a claim for spousal maintenance, what you can expect in terms of a time line, the attorney's form of communication with clients, the amount of retainer required to start the case, and whether the attorney has the time necessary to devote to your case.

A list of questions you wish to ask your attorney are included in question 3.2 in chapter 3. However, some basic areas to explore include:

• experience in family law

• the best way to communicate with the lawyer

• who will be handling the case on your behalf

• attorney's expectations of you

• the specific process and how long it will take

• potential outcomes

1.2 Must I have an attorney to get a divorce in Arizona?

You are not required to have an attorney to obtain a divorce in Arizona. However, if your case involves children, spousal maintenance, significant property, or debts, you may find it easier to have an attorney than proceeding on your own.

If your divorce does not involve any of these issues, and you want to proceed on your own, contact the self-help center at the superior court in your county, or call the clerk of the court to request documents and instructions that may be used in filing your own case and proceeding on your own. A person who proceeds in a legal matter without a lawyer is referred to as being in pro per or pro se, on one's own. In some counties, the forms are available online. A listing of available resources with applicable websites and telephone numbers is included in Resources at the end of the book.

If you are considering proceeding without an attorney, you may want to at least have an initial consultation with an attorney to discuss your rights and duties under the law. You may have certain rights or obligations you are unaware of. Meeting with a lawyer can help you decide whether to proceed on your own.

1.3 What steps are taken during the divorce process?

The divorce process in Arizona follows a particular pattern. Below is a list of the steps in the divorce process. The steps are a general overview and are explained in more detail throughout the book.

Obtaining Representation

• Obtain the names of lawyers experienced in family law.

• Schedule an appointment with an attorney for an initial consultation.

• Prepare questions and gather needed documents for initial consultation.

• Meet for initial consultation with attorney.

• Make sure you are comfortable with the attorney you are interviewing. If not, take the time to meet with other attorneys, even attorneys within the same firm, until you feel you have the right attorney for your case. This is a journey you will be traveling with your attorney and it is important that there is a right fit for both you and the attorney. Since this is one of the most important aspects of your life and could affect how you live the rest of your life, choose your lawyer carefully to make sure he or she has the qualifications and time necessary for your case.

• Pay a retainer to attorney and sign retainer agreement.

• Provide requested information and documents to your attorney.

• Take other actions as advised by attorney, such as opening or closing financial accounts.

Starting the Process If You Are Filing the Petition

• Attorney prepares petition for dissolution of marriage. The petition informs the court of the names of the parties, length of marriage, and if there are any minor children common to the marriage, as well as a basic statement of the issues to be decided and the petitioner's position on the issues.

• At the same time the attorney may prepare a motion for temporary orders if such things as temporary support for you or the minor children are needed.

• You review the petition and motion for temporary orders and sign a verification that the facts stated in each are true to the best of your knowledge and belief.

• Attorney files petition with clerk of the court.

• Attorney obtains hearing date for temporary orders.

• The petition is served on your spouse. This can be service by a process server or your spouse may agree to voluntarily accept service by signing and returning an acceptance of service.

• Mandatory sixty-day waiting period before a divorce can be finalized begins when spouse is served or voluntarily accepts service.

Responding to the Petition If Your Spouse Filed First

• Attorney prepares a response to the petition for dissolution of marriage.

• Negotiations begin regarding terms of temporary orders on matters such as custody, support, and temporary possession of the family home.

• If there are minor children you must attend a court-approved parenting class within forty-five days.

Preparation of Case

• Gather documents necessary for your case which may include obtaining documents from third parties such as financial institutions.

• Prepare an affidavit of financial information that lists income and expenses.

• Prepare a list of property and debts.

• Disclosures statements under Rule 49 of the Arizona Rules of Family Law Procedure must be prepared and submitted to the other side within forty days or as set by the court.

• A resolution management conference is generally the first time the parties are in court. The parties and their attorneys have a brief meeting with the judge to discuss potential issues and whether there is any resolution to the issues. If there is no resolution, the judge will set a date for temporary orders, if necessary, and a trial date.

• Temporary orders hearing held if no resolution on a temporary basis.

• Both sides conduct discovery to obtain information regarding all relevant facts. Obtain valuations of all assets, including expert opinions if needed.

• Confer with attorney to review facts, identify issues, assess strengths and weaknesses of case, review strategy, and develop proposal for settlement.

• Spouses, with support of attorneys, attempt to reach agreement through written proposals, mediation, settlement conferences, or other negotiation.

Parties Reach Agreement on All Issues

Attorney prepares decree, property settlement agreement, and, if there are minor children, a parenting plan. If there are retirement plans such as a 401(k) or a pension, a qualified domestic relations order (QDRO) needs to be prepared to divide the retirement funds so it is nontaxable event.

In the Event of No Settlement

• Certificate of readiness and memorandum to set trial is filed if the court has not already set a court date.

• Parties prepare for trial on unresolved issues.

• Trial preparations proceed including preparation of witnesses, trial exhibits, legal research on contested issues, pretrial motions, pretrial statements, trial brief, preparation of direct and cross-examination of witnesses, preparation of opening statement, subpoena of witnesses, closing argument, and suggestions to the court.

• Meet with attorney for final trial preparation.

• Trial is held.

• The judge takes the matter under advisement.

• The judge will issue a decree of dissolution in approximately thirty to sixty days.

• Documents required to divide retirement accounts and ensure the payment of spousal and child support are submitted to the court.

• Attorney prepares closing letter.

1.4 Is Arizona a no-fault state or do I need grounds for a divorce?

Arizona is a no-fault divorce state. This means that neither you nor your spouse is required to prove that the other is "at fault" in order to be granted a divorce. Factors such as infidelity, cruelty, or abandonment are not necessary to receive a divorce in Arizona. The only ground for the divorce is that the marriage is "irretrievably broken." This ground is stated in the initial petition. If you are responding to the petition for dissolution of marriage and also believe the marriage is irretrievably broken you can simply agree in your response. Or, if you believe there is hope for reconciliation, you can dispute that the marriage is irretrievably broken. In such circumstances, the court will then take evidence on this issue at the final hearing. However, it is virtually impossible to show that the marriage is not irretrievably broken unless both parties agree.

If you are responding to the petition for dissolution and believe that there is a basis for reconciliation, you can file a petition for a referral to conciliation services. Conciliation services are available in some courts as a means to put the divorce action on hold until there is an opportunity to meet with a court representative and determine whether there is the ability to repair the marriage. For example, if the reason the parties are divorcing is due to disputes over financial issues, it may be that putting in place a financial plan and having both parties agree to the financial plan will avoid the necessity of obtaining a divorce. If a petition for conciliation services has been filed, no action can be taken with respect to the divorce until a notice is obtained from conciliation services that conciliation efforts have failed.

If testimony regarding whether the marriage is irretrievably broken is required all that is needed is testimony from one party stating that efforts at reconciliation were made, that those efforts were not successful, that further attempts would not be beneficial, and that the marriage is therefore irretrievably broken.

At trial the judge will take testimony on whether the parties are aware of conciliation services. The judge will need to make a finding based on the testimony of at least one party that either conciliatory services were utilized, but failed, or that the services would not be helpful.

There is one caveat unique to couples married in Arizona with respect to no-fault divorces. If the parties have a covenant marriage, certain other requirements must be met. A covenant marriage is one where the parties agree that they are committed to each other and will take all reasonable efforts to preserve the marriage and be bound by the law in Arizona related to covenant marriages. The parties can declare this desire to enter into a covenant marriage on the application for a marriage license. A husband and wife may also, after marriage, convert the existing marriage to a covenant marriage. If your marriage is a covenant marriage, the basis and timing for obtaining a legal separation or a divorce are limited. If you have a covenant marriage, speak to your attorney about the grounds and timing for terminating your marriage.

1.5 How will the judge view my or my spouse's infidelity?

Because Arizona is a no-fault divorce state, there will rarely be testimony or evidence introduced about either spouse's infidelity. However, this testimony may still come in if community funds were used to pay for such things as dinners, hotels, airfares, or gifts on an extramarital affair, since the expenditure of those funds would be considered expenditures for a non-community purpose. In such cases, a claim can be made for reimbursement of one-half of the funds that were spent.

1.6 Do I have to get divorced in the same state I married in?

No. Regardless of where you were married, you may seek a divorce in Arizona if the jurisdictional requirements of residency are met and the marriage is not considered void in Arizona.

1.7 How long must I have lived in Arizona to get a divorce in the state?

Either you or your spouse must have been a domiciled resident in Arizona for at least ninety days prior to the filing of a petition for dissolution of marriage to meet the residency requirement for a divorce in Arizona.

If neither party meets the residency requirement, other legal options are still available for your protection. If you do not meet the ninety-day residency requirement, talk to your attorney about options such as a legal separation, a petition for legal decision making and parenting time if there are minor children, or an order of protection.

1.8 What is a void marriage?

Arizona will not grant a divorce if the marriage is not recognized as a valid marriage in Arizona. A void marriage in Arizona is one between same-sex partners, and between certain members of a family, such as between brothers and sisters, grandparents and grandchildren, aunts and uncles, and first cousins.

1.9 My spouse has told me he/she will never "give" me a divorce. Can I get one in Arizona anyway?

Yes. Arizona does not require that your spouse agree to a divorce. If your spouse threatens to not "give" you a divorce, know that in Arizona this is likely to be an idle threat without any basis in the law.