Divorce Laws in Arizona
Arizona marriage and divorce laws are governed by the Arizona Revised Statutes and the Arizona Rules of Family Law Procedure.
If you are considering a divorce in Arizona, it is important to know that Arizona is a no-fault state which means that you do not need to state a reason for a divorce. You only need to claim that a marriage is “irretrievably broken” to proceed. The exception to this is if spouses have chosen to go through a covenant marriage or later convert to a covenant marriage. It that case, the petitioner must prove that certain grounds for divorce exist in the marriage.
You also need to know there is a 60-day cooling off period before a judge will sign a final divorce decree. This is the shortest amount of time that a divorce can take place in Arizona and will generally only be that length when both spouses agree on all issues related to the divorce. You must also be a resident of the state for at least 90 days before you can file for divorce.
Several other laws govern divorce in the state. Here is an overview of the most common legal questions you will encounter.
Community Property in Arizona
Arizona is a community property state. This means that all property acquired by either spouse during the marriage belongs equally to both spouses. However, there are some exceptions.
If an asset was acquired during the marriage by way of inheritance or a gift, then the person who was given that property retains sole interest in it.
Determining if an asset is community property or separate property can be a complex issue. In some cases, a spouse may commingle an asset, such as depositing money in a joint bank account, or allowing a spouse to live in an inherited house, that will give rise to the possibility that a claim of community property can be made.
If you want to retain sole possession as the owner, it is important to make sure you do not commingle any assets you receive. You can set up separate bank accounts or have your spouse sign a postnuptial agreement that clearly states you are the owner of the asset in question.
As a community property state, any debts or assets acquired by one or the other spouse during a marriage in Arizona belong equally to both spouses.
Debts that are incurred after a marriage or separation, or before a marriage or separation only belong to the spouse who incurred them.
Division of Assets in Arizona
The courts place emphasis on making sure assets are divided equitably among divorcing spouses. Any property acquired during the marriage is considered community property and any property acquired either before or after the marriage may be considered separate property.
Asset division not only includes real property, it also includes financial holdings as well. Bank accounts, stocks, IRAs and 401Ks are treated just like real property.
Although Arizona law will dictate that assets be divided equally among the divorcing spouses, this does not mean each spouse will receive a 50-50 split for each asset. Courts will look at the net asset value and distribute the marital property evenly. The goal is to have each spouse walk away with the same approximate net value.
Challenges can arise when one spouse or the other claims that an asset is not actually community property, but instead is separate property. There can also be questions and challenges when one spouse receives an inheritance, which is considered separate property, but then proceeds to commingle it with community property assets.
For example, if a spouse receives a lump sum of cash and deposits it into a joint bank account, this could be considered commingling. In addition, a spouse who inherits a home, but then both spouse’s live in it, may run the risk that it could be considered community property.
Arizona law states that gifts given to one spouse are considered separate property. It does not matter if the gift was given from one spouse to the other, or by a third party to one of the spouses.
Disagreements can arise when the gift is commingled and used by both spouses. For example, if a husband buys a wife a car as a gift, but then both use it in the course of their marriage, the case can be made that it is actually community property.
Inherited property is treated the same way in Arizona as a gift. Property inherited by one spouse during a marriage is separate and not subject to community property rules. But there can be a challenge raised if a will states that property you inherited goes to you and your family.
Ownership of inherited property can be invalidated if the person who inherited the asset commingles it with marital assets. For example, inherited monetary assets that are placed in a joint bank account could cause the inheritor to lose their sole interest. Also, if you inherit a home but both you and your spouse move into the home, it could be considered community property.
At all times, it is best to keep inherited assets separate in there is a possibility of divorce that looms in the future. One other way to protect an inheritance is to have your spouse sign a postnuptial agreement whereby he or she agrees that the inheritance is yours, no matter how it is used in the marriage.
Pensions, IRAs, 401Ks and Retirement Plans
Pensions, IRAs, 401Ks and retirement plans are also considered community property in Arizona which means they must be divided equally in a divorce. The exception to this is if any accounts were funded prior to marriage. Property and assets acquired before a marriage are generally considered separate property in most cases.
To divide pension and retirement accounts, a divorce decree must order that these assets be divided. Armed with this, a qualified domestic relations order, more commonly referred to as a QDRO, must be created, either by a firm that specializes in this type of document or by your lawyer if you have one. The QDRO must be approved by the courts and then it can be submitted to the plan administrator who must also approve it. This establishes that your spouse can be considered an alternate payee, and the retirement vehicle is then divided according to the specifics contained in the QDRO.
To make your life easier, we recommend using QDRO Counsel, an online service that creates Qualified Domestic Relations Orders.
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Arizona law defines separate property as any assets acquired before a marriage or after a date of separation between two spouses. When a divorce takes place, assets that are separate property do not need to be considered among the assets that need to be divided equitably between spouses.
During a marriage, a spouse can claim separate property if they receive a gift expressly given to only them, inheritance received by only one spouse, or any property that both spouses agree is one spouse’s separate property.
Alimony (Spousal Maintenance) in Arizona
In Arizona, alimony is called spousal maintenance. There are two types of spousal maintenance, temporary spousal maintenance (or pendente lite) and permanent spousal maintenance.
Temporary spousal maintenance is paid while a divorce is still in progress.
Permanent spousal maintenance is paid after a divorce has been finalized. But in Arizona, permanent spousal maintenance is becoming rarer because courts are viewing this type of support as rehabilitative which will give a spouse time to find a job, or take other steps such as school or training to improve their employment outlook.
To award maintenance, a spouse must demonstrate need and the other spouse must demonstrate an ability to pay. Arizona courts give special consideration to older spouses who supported their spouses by staying at home for long periods of time during a marriage, making it more difficult for them to reenter the job market. Consideration is also given to a spouse who has custody of children and may not be able to seek employment due to the needs of a child.
Several factors are taken into consideration when determining spousal support:
- The length of the marriage
- The earning capacity of each spouse
- Costs of health insurance for each spouse
- The needs and standard of living of each spouse
- Age and health of both spouses
- Existing debts and assets
- Child custody arrangements and whether or not the primary care spouse can hold a job while taking care of the children
- Did one spouse help the other with education, career training or other ways to assist them in advancing their career
- Evidence of domestic violence
- Evidence that either spouse had excessive spending, or destroyed, concealed or committed fraud regarding jointly held property
Some courts use formulas to decide spousal maintenance, but judges still have leeway when considering all factors in deciding the actual amount of spousal maintenance, or if any will be granted at all.
Child Support in Arizona
Even in a divorce, Arizona law requires that both parents contribute to the well-being and support of their minor children. The Arizona Supreme Court as adopted a set of guidelines that govern how child support will be determined. This includes a formula for calculating the amount of support that will be owed by each parent.
In some cases, a parent may fall behind on child support payments, or they may completely disregard what the law says and what the court has put in place. When this happens, the other spouse can seek a court order compelling the parent to pay the required level of child support. This may eventually include garnishing the parent’s wages to ensure that the needs of the children are protected.
Once child support amounts have been set, they can be modified when there are substantial and ongoing changes in custody, one or the other parents’ finances, or changes in the needs of the children.
Custody and Visitation
Child Custody in Arizona
In Arizona, the primary guiding principle in determining child custody is what is in a child’s best interests. Sole custody refers to legal custody in Arizona. In a sole custody arrangement, only one parent makes major life decisions for the child, such as medical care or education. With joint custody, both parents share in the decision-making responsibilities.
Because the courts want both parents actively involved in a child’s life, courts will tend to favor a parenting plan that allows for equal physical time with the mother and the father. Courts encourage parents to come up with a plan that addresses custody and visitation issues but when these issues cannot be resolved, a court will step in and proceed to trial.
To make co-parenting as easy and amicable as possible, we recommend using the Our Family Wizard app. With everything from scheduling to expense calculating, Our Family Wizard makes communicating with your ex-spouse the most positive experience possible.
Ultimately, courts will rule and decide on what is in the best interests of the child. They will consider many factors:
- The age and health of a child
- The emotional ties a child has to each parent
- What a child’s preferences are regarding which parent they want to be with, especially if they are a bit older
- The ability of each parent to care for the child
- What childcare and after school care arrangements are available if both parents work?
- Are there any instances of domestic violence or substance abuse in the marriage?
- What religious activities is the child involved with?
- Where does the child go to school?
- Where does the child get medical and dental services?
Unless there are negative circumstances surrounding one or the other parent, courts will want an arrangement in which both parents have frequent and continuing contact with the child. Although Arizona is a no-fault state, a spouse’s conduct during a marriage could have a negative impact on child custody and visitation issues.
Although joint custody is the preferred way to deal with child custody issues in Arizona, when one spouse has abused drugs or alcohol, joint custody is not in the best interests of the child. When drug or alcohol abuse is present, a parent cannot always take care of themselves, let alone a child.
Under Arizona law, if a parent has abused drugs or alcohol and been convicted of a drug-related offense within one year prior to a divorce, then it is presumed that it is not in the best interests of the child for that parent to receive sole or joint custody of the child.
Substance abuse can also affect a division of assets when it is determined that one spouse or the other spent considerable marital resources on substance-induced behavior. The same can be said for the impact on spousal support.
Bifurcation of Marital Status
Bifurcation means that both parties in a divorce can legally declared as a single person while the other issues in their divorce are still being worked out. It does not affect things such as child custody, visitation, child support, alimony or other contentious issues that may have stalled or become major sticking points that are keeping the divorce from being finalized.
In Arizona, family law courts are not allowed to bifurcate divorces. All property, child support and child custody cases must be decided before a divorce can be finalized. This means if you want to remarry or file your taxes as a single person, you must find a way to compromise with your spouse so that your divorce will move forward to completion.
Arizona Disclosure and Discovery Obligations
The Arizona Rules of Family Law Procedure specifically address disclosure and discovery issues. There are mandatory minimum disclosures that all parties in a divorce must make available. Rule 49 states that you must disclose information within 40 days after filing a response to an initial petition.
Spouses must disclose to each other the type and amount of all community and separate assets and debts. This is required so that an equitable division of assets can take place. Each spouse will need to complete a series of forms, and each one is also required to file an income and expense declaration as well.
Spouse’s Default in Arizona
After a petition is filed for divorce, copies of the papers must be served on a spouse unless they waive service and that waiver is filed with the court. Otherwise, a spouse has 20 days to respond to a petition if it is served in Arizona or 30 days to respond if the petition is served outside of Arizona.
If the spouse does not respond within the allotted time frame, then the petitioner can apply for a default. After a request for default has been filed, a spouse has 10 days to file a response or they run the risk that a divorce will be granted with all the terms the petitioner was seeking. The default will become final at the end of a 60-day cooling off period.
Arizona is a no-fault state, and domestic violence does not need to be stated as a reason for ending a marriage. However, if domestic violence is present in a marriage, it can have an impact on child custody and visitation rights.
Domestic violence can take place against any member of a household, including a spouse, children, other family members or somebody you just lived with. It also can take place in many ways from an actual assault to stalking, threatening, destroying personal property or harassment by telephone or through social media.
Seek a temporary restraining order, which are granted on an emergency basis and take effect immediately. They are short in duration and are put in place until a hearing can take place to determine if a permanent restraining order should be granted.
Once put in place, this legal action will prevent the alleged abuser from taking any actions against you or they will face criminal charges.
As you move forward with a divorce, the court will consider domestic violence issues and it will influence child custody, visitation, child support, and spousal support. A judge will look at police and medical reports, protective services reports, school records, and testimony from witnesses before deciding how to proceed.
When you get a divorce in Arizona and you are covered under a spouse’s healthcare plan, that coverage will end and you’ll be forced to seek coverage elsewhere. But by law, your spouse may not remove you from their plan during the actual divorce process.
If you are the spouse who will be losing health insurance coverage, then you should disclose the cost of what a plan will be for you so that it can be figured into any spousal support ruling. The costs of healthcare for children should also be a part of any settlement discussions as well.
You may be able to continue health insurance through your ex-spouse’s plan as part of COBRA, but if this is the case, you will be required to pay the premiums that were formerly paid by the spouse and the employer.
Infidelity and Adultery
Infidelity and adultery, more commonly known as “cheating” takes place when one married person has voluntary sexual intercourse with someone who is other than their spouse.
Under a no-fault premise, couples in Arizona who have attempted to work out their differences can simply cite an “irretrievable breakdown” as the reason for ending a marriage. This means neither spouse is responsible for the breakdown of their marriage.
There is another option in Arizona which equates to a fault-based divorce. This can only take place if a couple has entered into a covenant marriage.
A covenant marriage is different from a traditional marriage because couples must meet several additional qualifying conditions including participating in premarital counseling, deciding how they will handle divorce when applying for a marriage license, and agree to attend predivorce counseling. When a couple has demonstrated a valid covenant marriage to the court, a divorce can only be granted if it can be proved:
- a spouse committed adultery
- a spouse committed a felony resulting in imprisonment or a death penalty
- that either spouse abandoned the marital home for at least one year
- that a spouse sexually or physically abused the other spouse, a child or a relative of either spouse
- that a spouse has continually abused drugs or alcohol
Military Divorces in Arizona
Laws have been put in place to protect the rights of active military duty members who might be held in default by not responding to a divorce action. The Soldiers and Sailors Civil Relief Act and The Servicemembers Civil Relief Act ease legal and financial burdens of military personnel and their families who face the added challenges of active duty.
Under the protection of these laws, an active duty spouse must be served in person with a summons and a copy of the divorce action. If the divorce is uncontested, then the active duty spouse may not need to be served if he or she signs a waiver acknowledging the divorce action.
Per Arizona law, child and spousal support awards may not exceed 60% of a servicemember’s pay and allowances. The same guidelines and calculations that are used for non-military divorces are also used when a servicemember is involved.
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