Divorce process

  • Filing for divorce, or dissolution of marriage as it is called in Arizona, can be an emotional and overwhelming task.  The goal of the Berkshire Law Office is to help you through this emotional and stressful time and to achieve the most favorable result for you and your family.

    Arizona has one of the quicker divorce (dissolution) processes in the country.  The sole time limitation in Arizona for a divorce is a 60-day waiting period after the service of the divorce petition.  However, in Maricopa County, the average divorce takes between 8-10 months, if the matter is contested and requires a trial.  Settlement is clearly the more cost effective and timely process and can significantly reduce the time period from start to finish for your case. While we are always ready and willing to prepare for trial, the Berkshire Law Office prefers mediation or other avenues to reduce stress and prevent conflict in your case. But don't worry if litigation is required as The Berkshire Law Office has handled over 150 contested hearings in Family Law, as well as argued multiple times at the Court of Appeals.

    Types of Divorce Proceedings:

    ·         Uncontested: A divorce is considered uncontested if the parties can agree on major issues such as property division, spousal and child support, and if it is unlikely that a spouse will file papers in court disagreeing with the divorce request.

    ·         Contested: A divorce is considered contested if the parties cannot agree on the issues and need the court to help them reach a resolution. Complex child custody issues, high financial stakes, and technical legal procedures are the marks of contested divorces and make experienced counsel necessary.

    ·         No-Fault Divorce: Either spouse can decide to end the marriage, and the other spouse, even if he or she does not want to get a divorce, cannot stop the process by refusing to participate in the case.  If a spouse does not participate in the divorce case, the other spouse will still be able to get a default judgment and the divorce will go through.

    ·         Arbitration/Mediation: An arbitration or mediation with an attorney can prevent extensive litigation and trial.

     Requirements:

    To file for divorce in Arizona, you must meet the following requirements:

    ·         You, or your spouse, must have resided in Arizona for at least 90 days prior to filing the petition.  A.R.S. § 25-312.

    ·         If children are involved, then the children must have resided in Arizona for at least six consecutive months prior to filing.  A.R.S. § 25-1002(7)(a).

    ·         The marriage must be irretrievably broken.

    • Covenant Marriage

    ·         The respondent spouse has committed adultery.

    ·         The respondent spouse has committed a felony and has been sentenced to death or imprisonment in any federal, state, country, or municipal correctional facility.

    ·         The respondent spouse has abandoned the matrimonial domicile for at least one year before the petitioner filed for dissolution of marriage and refuses to return. A party may file a petition based on this ground by alleging that the respondent spouse has left the matrimonial domicile and is expected to remain absent for the required period. If the respondent spouse has not abandoned the matrimonial domicile for the required period at the time of the filing of the petition, the action shall not be dismissed for failure to state sufficient grounds and the action shall be stayed for the period of time remaining to meet the grounds based on abandonment, except that the court may enter and enforce temporary orders pursuant to section 25-315 during the time that the action is pending.

    ·         The respondent spouse has physically or sexually abused the spouse seeking the dissolution of marriage, a child, a relative of either spouse permanently living in the matrimonial domicile or has committed domestic violence as defined in section 13-3601 or emotional abuse.

    ·         The spouses have been living separate and apart continuously without reconciliation for at least two years before the petitioner filed for dissolution of marriage. A party may file a petition based on this ground by alleging that it is expected that the parties will be living separate and apart for the required period. If the parties have not been separated for the required period at the time of the filing of the petition, the action shall not be dismissed for failure to state sufficient grounds and the action shall be stayed for the period of time remaining to meet the grounds based on separation, except that the court may enter and enforce temporary orders pursuant to section 25-315 during the time that the action is pending.

    ·         The spouses have been living separate and apart continuously without reconciliation for at least one year from the date the decree of legal separation was entered.

    ·         The respondent spouse has habitually abused drugs or alcohol.

    ·         The husband and wife both agree to a dissolution of marriage.

     Process:

    If you are the petitioner, meaning you file the initial documents with the court, the process of dissolution begins with the filing of the Petition for Dissolution and service of those documents upon the other party.  The Petition provides the court with pertinent information to the case, such as the names of the parties, the length of the marriage, the names of any minor children, a statement of the issues, and finally, the petitioner’s position on the issues of the case.  A.R.S § 25-314.  

    If you are the Respondent, meaning your spouse filed the initial paperwork, you have 20 days (30 if out of state) to file a Response to the Petition. AZ ST RFLP Rule 32.

    In Arizona a “Preliminary Injunction” under A.R.S. § 25-315 is automatically entered when the petition is filed.  This restraining order prohibits both spouses from leaving the state with their child, selling off assets or spending community or joint property in a reckless manner until the date of the final dissolution.

    Discovery:

    Once the initial documents have been filed, the Berkshire Law Office will begin the discovery process.  Discovery is the term used to define the information-gathering phase of the matter.  This process ensures that both you and your spouse have access to the same information.

    Arizona law requires that parties to a divorce action automatically disclose certain items. AZ ST RFLP Rule 49. They include:

    ·         A Resolution Statement: This document will set forth any agreements between the parties and the specific, detailed position the party proposes to resolve all issues in the case, without argument in support of the position.  This statement will also include information regarding Child Custody or Parenting Time.

    ·         An Affidavit of Financial Information: This will include proof of income for the party from all sources, proof of court-ordered child support and spousal maintenance actually paid by the party in any case other than the one in which disclosure is being provided, and proof of all expenses paid toward a child named or referenced in the petition.

    ·         The complete documentation for all of the property owned by the party.

    ·         The complete documentation for all of the debts of the party.

    ·         A Disclosure of the Witnesses the party is going to use.

    ·         A Disclosure of Expert Witnesses that the party is going to use.

    There are several forms of discovery available during a divorce proceeding:

    ·         Interrogatories are written questions that a party is required to answer under oath.

    ·         A request for production of documents requires that you or your spouse produce certain requested documents to the other party.

    ·         A request for admissions is a request by one party asking the other party to admit or deny certain facts relevant to the matter.

    ·         A subpoena of documents is a document that asks for documents from third parties.

    ·         A deposition is in person questioning that takes place in the presence of a court reporter, but not in the presence of a judge.

    A party can use as few or as many of these discovery tools during the course of the matter.  The Berkshire Law Office can help you decide which forms of discovery will be most beneficial and cost effective to your case.

    If settlement is not reached early the Court will set a Resolution Management Conference. This is a brief hearing in front of a judge. At the hearing, the judge will attempt to assist the parties in settlement, or set a trial date for the case. AZ ST RFLP Rule 47.