Divorce and Legal Separation

Before filing for a divorce or legal separation, it is best to sit down for a consultation with an attorney and find out about your legal rights.   A divorce is an emotional process, and those emotions are best tempered by information about your legal rights.  Don't let your emotions carry you away, when you really need to plan for yours and children's future.  What kind of decision making plan is best for your children?  Do you need spousal maintenance, child support, or division of income during the divorce?  What about support for your children after the divorce?  Will you be dividing a small business that you and your spouse own?  How will you ensure that you receive a fair share of the business, the reitrement assets and other personal property that you acquired during your marriage?  Being informed of your rights will help you plan a divorce for yourself and your children.  

 Divorce with Children in Arizona

The procedure for getting a divorce with children may vary, depending on the steps that you need to take to provide for our family during a divorce.  You may obtain an uncontest divorce, which means that both spouses have an agreement and do not litigate any issues in court.  An uncontested divorce is processed through the court by filing a Petition for Dissolution with Children, an Affidavit and Application for Default, and a final Dissolution Decree at a default hearing.  Whereas, a contested divorce involves litigation of one or more issues and many more steps before the divorce is final.  In a contested divorce, one spouse files a petition and the other files an Answer.  One spouse may request temporary orders of spousal maintenance, decision making for the children, and child support, while the other party files a counter petition requesting different orders.  The differences in the spouses' positions in regard to their children's best interest, the child support to meet their needs, and the parenting time schedule for each parent will be prioritized ahead of other issues in the divorce.  Those child-related issues have been discussed in other sections of this website.

I.  The Dissolution Petition and Other Documents Begin the Divorce.

The following documents are the paperwork that is initially filed in a divorce with children:

* A Petition for Dissolution of Marriage with Children;

* Preliminary Injunction;

* Notice of Right To Convert Health Insurance;

* Summons

*   Order and Notice to Attend Parenting Information Class

To file a Petition for Dissolution, there are certain residency requirements.  You or your spouse need to reside in Arizona for 90 days or more.  Your children need to reside in Arizona for at least 180 days for the court to have jurisdiction to make orders of  legal decision making.  If your children do not reside in Arizona, then you need to discuss your options for filing divorce in their home state with an attorney in that  state.  Finally, a divorce is usually filed in the county where the children reside, because evidence about the children's welfare and best interest is most readily available there.

After filing for divorce, the Petitioner will serve the other spouse with the paperwork.  There are two methods of service in Arizona.  First, if your spouse is aware of the divorce and knows you are filing.  He or she may agree to accept service and waive service of process.  To accept service, he or she need only sign the Acceptance of Service and Wavier of Process before a notary public.  In contrast, if the other spouse does not want to cooperte with the divorce process or there is an Order of Protection, you can hire a private process server or a county sheriff to serve the paperswork on the other spouse.   The private process server with deliver the paperwork to a person of reasonable age at his or her dwelling place.  If your spouse does not live in Arizona, you may serve the paperwork by registered mail, return receipt, but only if the other spouse actually signs the green receipt.

The Preliminary Injunction is an order to the spouses that will provide them with financial stability during the divorce.  It prevents them from selling or borrowing against their community property, or taking all of their assets and moving to another place, thereby leaving the other spouse destitute.  It also orders them not to take their chldren outside Arizona.  The Preliminary Injunction maintains the status quo of the family until the divorce is final.  It can be served on a bank, where the parties have their accounts, or on a retirement plan, to prevent one spouse from  withdrawing the assets.

The Notice to Convert Health Insurance is intended to warn the spouses that they cannot take the other spouseand children off of their health insurance policy during the divorce.  You are obliged to continue providing health insurance coverage until the divorce is final.

The Order and Notice to Attend Parenting Information Class informs both parents that they are reqquired to schedule and pay for a three-hour class about how divorce and parental conflict affects children.  This class is supposed to educate parents about how to cope with the stresses that children, who are vulnerable to conflict, experience.

After being served wtih the Petition for Dissolution of Marriage, the other spouse has 20 days to file an Answer if served in Arizona.  He or she has 30 days to file an Answer if served in another state.    No response from the other party after the time expires means you can file your Application and Affidavit of Default.  After the default grace period of 10 business days has passed, you can then call the courthouse and request to schedule a default hearing.  Your divorce with be finished when the Judge signs your final Dissolution Decree at the Default Hearing.  A divorce cannot be finalized until at least 60 days after service of process.

Temporary Orders

Many spouses receive an Answer filed by the other spouse.  To resolve the issues, they must then negotiate a settlement of their differences or go to trial.   Because many spouses separate during the divorce, they may need temporary orders of legal decision making for their children, along with child support and spouse maintenance, to provide for the two households.   A spouse who does not have the children in his care and wants to ensure an ongoing relationship with them can file  a Motion for Temporary Orders.  Or, a spouse who does not have access to the funds necessary for his or her support and the children's support may file for Temporary Orders.  Filing a Motion for Temporary Orders will provide the marital partners with a one hour hearing  before the court. for the purpose of obtaining court orders to resolve their differences until the divorce is final.

The spouses will appear in court for a brief Resolution Management Conference after they request Temporary Orders.  During the conference the Judge will ask the spouses if they have reached any agreements.  If there are agreements about any issues, such as legal decision making, parenting time, child support and division of property and debts, each spouse will take an oath and testify about the terms of the agreement.  This is called "putting an agreement on the record," because it is recorded in open court.  The Judge then approves the agreement and makes it a court order.

Those issues which are not settled at the Resolution Management Conference, will be scheduled for  a one hour hearing.  At the hearing, each spouses will have one half of the court time to present evidence to prove his or her position to the court.  How much child support should be paid?  Should there be any court-ordered spousal maintenance?  Who should pay the community debts?  The court can provide temporary orders for these issues after hearing the evidence.