3 Ways To End A Marriage

Under Arizona law, wedlock may be ended in three ways:

divorce,
annulment, and/or
legal separation.

See how they differ:

Divorce:

Residency Requirements & where to file: One of the spouses must have lived in the state at least 90 days before filing for dissolution of marriage. The divorce should be filed in the county in which the petitioner resides at the time of filing. There is also a 60 day waiting period after the service of process on the Respondent (or after the Respondent’s acceptance of service.(ARS 12-401; ARS 25-312; and ARS 25-329).

The most common way to end a marriage, it requires filing a complaint at your local courthouse. Arizona, like California, is known as a “no-fault” divorce state. No fault means that in making its decisions, the Arizona family court does not seek to blame the divorce on either party and, as a result, does not punish either party for ending the marriage. Additionally, and more importantly, “no-fault” means you do not need grounds for a divorce. If one party desires a divorce and alleges that the marriage is “irretrievably” broken with no reasonable prospect of reconciliation, the Arizona court will enter a divorce decree. ARS § 25-316

Arizona does not recognize common-law marriages entered into Arizona.ARS § 25- 112. So, no matter how long the parties have lived together, or even if they have children, the Arizona court will not find that there is a common law-type of marriage. However, if the parties moved to Arizona from a state that recognizes common-law marriage,(South Carolina,for example) it is possible that Arizona will recognize the couple as married. To be valid, the marriage must have met the requirements for a valid common law marriage in that other state (8 years, for example).

After filing for divorce, whether or not the parties are able to agree on the issues of the divorce will dictate how long the divorce process will take. If the parties are able to reach a full agreement in the beginning, the divorce could be final in as little as ninety (90) days ARS § 25-329. If the parties can’t agree, and require the Court’s intervention, the process can take considerably longer.

In this regard, Arizona courts offer a procedure called “Temporary Orders” that are rules the court applies to your case that define the relationship between the parties while the divorce is ongoing.

Rules such as:

Child custody;
Parental visitation of the children;
Child support;
Use of the marital residence by whom;
Payment of marital debts; and,
Spousal support…just to name a few.

Temporary Orders can be agreed upon by the parties and from a contested hearing before a judge. ARS § 25-315

Caveat: If you file for divorce but then decide to reconcile, be sure to request a dismissal of your divorce action.

Annulment (ARS 25-301):
Many people who are considering bringing an end to their marriage come to us with the idea of getting an annulment instead of a divorce. This section discusses annulment only in its legal sense, and not in any religious sense. The nature and availability of religious annulment varies with each religious authority.

How Is Annulment Different From Divorce?
An annulment is a decree that a marriage was invalid from its outset. Whereas a divorce brings a valid marriage to an end, an annulment is a legal decree that effectively undoes the marriage, such that in the eyes of the law the marriage did not ever exist.

When Is Annulment Available?
Annulments are typically available under the following circumstances:

You and your spouse are close biological relatives, and should not have qualified for marriage under the law. For example, you and your spouse are parent and child, parent and stepchild, aunt and nephew, uncle and niece, or grandparent and grandchild. The precise parameters of the relationship which will qualify a couple for annulment will vary between jurisdictions.
One of the spouses did not have the mental capacity to enter into a marriage contract. By way of example, at the time of the ceremony a spouse may be incapacitated due to a mental disability, whether temporary or permanent in nature, or from intoxication.
One of the spouses was below the legal age to consent to marriage. (In some jurisdictions, the availability of annulment may also depend upon whether the proper legal requirements, such as parental and/or judicial consent to the marriage, were followed.)
You or your spouse entered into the marriage as a result of threat, force or duress.
You or your spouse were fraudulently induced into entering the marriage. Fraud may include the concealment of an important fact, such as permanent impotence or sterility, a criminal history, or infection with a sexually transmitted disease.
Your spouse was married to another living person at the time of the marriage. (In some jurisdictions, such a marriage would be considered bigamous and void under the law, and thus it would not be necessary to also seek an annulment.)
Duress – being forced into marriage – is also grounds for annulment. Only the innocent party can request an annulment. Call us for more examples of our successful annulments.

Some jurisdictions also permit annulment where one spouse concealed the fact of a divorce, finalized only a short time before the wedding (e.g., less than one month before the marriage).

Important Facts About Annulments
Some people believe that annulments will be available if they have only been married for a short time. The duration of a marriage is not a factor in the determination of whether an annulment is available.

For annulment based upon fraud or deception, it may be necessary for the spouse seeking the annulment to end the relationship as man and wife upon learning of the deception. If cohabitation continues once the innocent spouse knows of the fraud, many jurisdictions will consider that the spouses resolved the issue between themselves and that the fraud was thereby rendered a non-issue.

Most jurisdictions are extremely reluctant to grant annulments once a married couple has had children.

An annulment may limit your ability to share in the marital estate, or to obtain spousal support (alimony) which would otherwise result from divorce.

In Arizona, the parties can’t merely agree to annul their marriage. The Court must make that finding to allow an annulment based on grounds. To establish grounds for an annulment, one of the parties must demonstrate to the court that an impediment to the marriage’s validity existed at the time of the marriage. ARS § 25-301-302.This court-awarded annulment is something separate from one that a religious institution might grant the parties. For examples of annulments we have assisted others…please contact us.

Legal Separations:
Sometimes, when a divorce seems imminent, a married couple inquires about the possibility of “legal separation”. Some states refer to legal separation by other names, such as “separate maintenance”.

In Arizona, one alternative to divorcing a spouse is called “legal separation”ARS § 25-313. In a legal separation, the same issues that are considered in a divorce must also be considered in a legal separation. The only basic difference is that at the end of the legal separation process, you are considered “legally separated”, not legally divorced.

“Separation” versus “Legal Separation”
Usually, when people use the term “legal separation”, they are referring to a situation where a court has entered an order governing what will happen while the parties are separated, perhaps covering issues such as child custody and support, and spousal support (alimony). Typically, a court will have the power to resolve as part of a “legal separation” any and all issues that would normally be resolved in a divorce. The exception is that when the final order is entered by the court, the parties remain married. Also, most jurisdictions require a waiting or “cooling off” period before a court will issue a divorce judgment, but there is not ordinarily a waiting period before a court may issue an order of “legal separation” or “separate maintenance”.

It is possible for a married couple to separate without going to court, on the basis of a mutual understanding or even a written agreement. Some people will seek our assistance in drafting a separation agreement. This can be a very good idea, particularly where the parties want to be sure that insurance coverage will continue for both spouses following separation.

Why People Seek Legal Separation

The reasons people ask about separation as opposed to divorce include:

Religious Concerns – they may have a religious objection to divorce;
Insurance Concerns – they may wish to ensure that one of the spouses has continued coverage through the other spouse’s insurance provider;
Trial Separation – they may hope that the marriage can be reconciled, but recognize a need to spend some time apart, and desire a formal arrangement to address such issues as child support and custody, spousal support (alimony) and property in the interim;
Divorce Waiting Periods – they may wish to separate during the period of time their state requires them to wait, prior to the entry of a judgment of divorce;
Tax Purposes – Sometimes, in a complicated divorce, a wealthy spouse may wish to formalize the spousal support (alimony) at an early stage through a separation agreement, in order to take the associated tax deduction;
Social Security and Pension Benefits – Sometimes spouses will wish to delay formal divorce until they have been married long enough to quality for certain Social Security or pension benefits. For example, if your interest in certain Social Security or military pension benefits vests after ten years, it is not ordinarily fiscally prudent to divorce from a nine year marriage before you qualify for those vested benefits.

Important Considerations

If your separation later turns into a divorce, the manner in which you have divided your personal property may well be the manner in which that property becomes divided for the purposes of the divorce. That is, it is not unusual for a divorce settlement or judgment to award separated parties the personal property that is in their own possession. If there are important belongings that, for one reason or another, you will leave with your spouse upon separation, you may wish to make specific note in your separation agreement that both you and your spouse intend that property to come to you in the event of divorce.
If you contract for the division of property in your separation agreement, that contract will likely be binding upon you in the event of divorce. For example, if your separation agreement assigns the marital home to one spouse, and details how the equity will eventually be divided, absent a new agreement by both spouses it is likely that you will be bound by that earlier agreement upon divorce.
Insurance companies make money when they deny claims. If you are separating for the purpose of maintaining insurance coverage which would terminate upon divorce, check the policy language carefully. Some insurance companies are now including language which will cause coverage to lapse in the event of a legal separation.
Remember that separated couples remain married to each other. If you expect that you will wish to remarry, you will ultimately have to go to court to obtain a divorce.
Remember to separate your finances. Ordinarily, the money in a joint bank account belongs to both people named on the account. That is, if you are placing money into the account, your spouse may have a legal right to withdraw all of that money even if you are separated. If your name appears on a lease or mortgage for the residence where your spouse will live, you will remain liable for payments. Similarly, if you continue to share joint credit accounts, including credit cards, or your name appears on any utility bills (phone, gas, electrical, etc.) you will ordinarily be liable for any debt incurred by your spouse even after separation. It is thus wise to separate your finances, and to obtain credit cards and bank accounts in the individual names of each spouse, as part of the separation process.
Where pensions or government benefits are involved, it makes sense to consult with an accountant in relation to your financial situation as part of a legal separation, so as to make sure that you meet all of the necessary legal requirements to maintain your interest in those benefits.

What If Things Don’t Work Out?
If you separate from your spouse hoping that there will be an eventual reconciliation, but things don’t work out, the exact procedure for converting your separation into a divorce will vary depending upon where you live. In some states, for a period of time after a judgment of separate maintenance is entered, the parties may convert their case into an action for divorce. In other states, a new divorce action must be started. Some states fall in the middle, giving the court which issued the order of separation the discretion to allow the parties to amend their complaint to request divorce.

Key points to understand:

Separation does not end the marriage.
In most states, including Arizona, a legal separation does not divide property.
A legal separation agreement will resolve custody, alimony, child support and continued health care issues.
After a legal separation is filed, neither spouse is legally responsible for the debts of the other nor entitled to a share of after-aquired property.
Most couples who get legal separations usually go back to court for a divorce.
Legal separation is often preferred by people who disapprove of divorce for religious reasons or who are older couples wishing to separate but continue to have some benefits of marriage.

Caveat: Without a court Decree of Legal Separation, physically living apart, for any length of time, does not mean the parties are legally separated. A court action must be filed by one of the parties, just as in a divorce. Thus, if one of the parties has concerns about limiting their exposure for financial actions of the other party, but is unsure that a divorce is necessary at the time, a legal separation may be a solution. Also, if the parties desire to live separately but religious beliefs restrict the parties from seeking a divorce, a legal separation may provide the relief desired. In addition, a legal separation may allow a spouse to remain insured through the other spouse’s insurance.

Caveat: Remember, a legal separation is not a divorce, so until you are…don’t try to remarry.

Simplified or Special Dissolution of Marriage Procedures: Acceptance and waiver of service is allowed. In addition, Arizona law expressly encourages separation agreements. Also, dissolution of marriage petitions may be heard before a court commissioner if an appearance and waiver is filed. (ARS 25-317; and Arizona Rules of Civil Procedure; Rule 4(f); and Arizona Rules of the Supreme Court; Rule 91].

Mediation or Counseling Requirements:
Prior to filing for dissolution of marriage, either spouse may ask the court to order mediation for the purpose of a reconciliation to save the marriage or to obtain an amicable settlement and avoid further litigation. After a dissolution of marriage has been filed, either spouse may request that the dissolution of marriage proceedings be transferred to the Conciliation Court for mediation. Official forms for requesting this transfer are available from the clerk of any Superior Court. In addition, if one spouse denies that the marriage is irretrievably broken, the court may delay the case for up to 60 days and order the spouses to attend a conciliation conference. (ARS 25-312, 316 and 381.09 et seq).

Paternity:
If a child(ren) is born to parents who are not married to each other, a paternity action, instead of a divorce/legal separation action, is the legal document for the court to address any unresolved issues of child custody, visitation and support. If a dispute arises as to whether the alleged father is the child’s biological father, the court will order genetic testing. However, even if the parties agree who the father of the child is, in order to establish specific court orders related to the children, a action must be filed first so as to establish paternity, then any unresolved issues can go forward. ARS § 25-806

Spousal Support/Alimony:
In Arizona, certain spouses may be entitled to ongoing financial assistance from their former spouse after the divorce. Arizona courts refer to this as “spousal maintenance”, or commonly referred to as spousal support or alimony. Spousal maintenance can be requested by either husband or wife. Eligibility is based on several factors, two of which include the length of the marriage and the ability of the requesting spouse to reasonably support him/herself. Although no required amount or duration of spousal maintenance is provided for in Arizona law, Maricopa County courts have adopted a set of discretionary guidelines to assist both the parties and the Court in determining appropriate spousal maintenance amount and duration. These guidelines, however, are just that. The court, in its sole discretion, may award less or more than the guidelines indicate.ARS § 25-319

Orders of Protection:
In the worst of situations the need for protection from an angry, violent or vindictive spouse or partner will rear its ugly head. An Order of Protection, while not guaranteeing a person’s safety from another, does provide a remedy when another person refuses to respect rights and boundaries. While Orders of Protection are used against spouses, relatives and certain others, Injunctions Against Harassment are used in other cases to provide safety. ARS § 25-315

Child Support:
Arizona uses the “income shares” model for establishing child support amounts. In other words, child support is paid based on the income earning ability of both parents ARS § 25-320 et seq. This is different from simply ordering a parent to pay a percentage of his/her income to the other parent for child support. For more details on Arizona child support, go to the Arizona Supreme Court and click on the link entitled “Guidelines” or click on “Child Support Calculator”. Caveat: Equal Access cannot and does not guarantee the accuracy of any information contained or derived from the use of the Arizona Supreme Court’s website.

The court may order either or both parents of a child to pay an amount reasonable and necessary for the support of any minor child of the marriage, without regard to marital fault. Arizona has established child support guidelines which set the presumptive correct amount of support owed. Any deviation from the guidelines must include a written finding by the court that the application of the guidelines would be inappropriate or unjust. Factors the courts will consider in deviating from the guidelines include:

The financial resources and needs of the child;
The financial resources and needs of the custodial parent;
The financial resources and needs of the non-custodial parent;
The standard of living the child would have enjoyed had the marriage not been dissolved;
The physical and emotional condition of the child, and the child’s educational needs;
Excessive or abnormal expenditures, destruction, concealment or fraudulent disposition of community property;
The duration of visitation and related expenses.

An order of child support must also include the assignment of responsibility for providing medical insurance for the child and responsibility for payment of any non-covered medical expenses ARS 25-320.

Property Issues:
Arizona is a community property state, like 8 others in the US. Community property is defined as “anything acquired by the parties during the marriage, except by gift, devise or inheritance to one of the parties alone”. If an asset was acquired or accrued during the marriage, the fact that it is titled in one party’s name is not particularly important – it’s still a community asset owned by both parties. The parties to a marriage may change the nature of that asset, for example via a written agreement called a prenuptial, and a court may uphold that agreement. A common example of this occurs when one spouse signs a Quit-Claim Deed to a community home to the other party, often making the home the sole and separate property of the other spouse (with the exception of the increase in value). ARS § 25-211 et seq

In a disputed matter, Arizona courts will equitably divide community property in a divorce action. Although equitably often means equally,or 50-50, the court can decide that some other proportion is fair in a given circumstance. In an undisputed matter, the parties can divide the property in any manner they deem fair…90-10 is fair, as long as they both agree.

Separate property is retained by the owner of the property. Any property acquired by either spouse outside of Arizona shall be deemed to be community property if the property would have been community property if acquired within Arizona. Community or marital property (property acquired during the marriage) is divided and awarded equitably. Marital misconduct is not considered in the division. The court may consider excessive or abnormal expenditures of community property; and any destruction, concealment, or fraudulent disposition of community property in making the division. The court may place a lien upon a spouse’s separate property in order to secure payment of child support or spousal support. (ARS 25-318)

Custody Issues:
Custody, when used referring to children, has several different meanings. More commonly, people think in terms of legal custody and physical custody. Many people hear misinformation regarding custody and the effects custody designations have on parental rights. In Arizona, legal custody refers to who has decision-making authority in certain areas. For example, when one parent has sole legal custody, it means that party has decision-making authority in three areas: where the children go to school, to church and those decisions involving medical care. But, having sole legal custody will not give that party authority as the non-custodial parent’s rights to visitation.

If parents have joint custody, it means that the parents share decisions in the three areas listed above, not that the parents necessarily have equal time with the child. When parents with joint custody cannot reach an agreement, a mediator is often used to help develop a compromise.

Physical custody refers to where a child actually lives. If a parent is designated primary physical custodian, it means that the child will reside most of the time with that parent. Normally, the primary physical custodian receives child support from the other parent. ARS § 25-401 et seq

Spouse’s Name:
A spouse’s former or maiden name may be restored upon request. (ARS 25- 325).

Premarital Agreements:
The agreement must be in writing and signed by both parties and is enforceable without consideration. The agreement will not be enforceable if the party can prove either that he or she did not execute the agreement voluntarily, the agreement was unconscionable when executed, and before execution of the agreement the spouse was not provided a fair and reasonable disclosure of the property or financial obligations of the other spouse, did not voluntarily waive any right to the disclosure of this information, and did not have adequate knowledge of these obligations. If a provision of the agreement modifies or terminates spousal support which causes that spouse to be eligible for public assistance, the court may order the other spouse to pay support. If the marriage is determined to be void, the agreement is enforceable only to the extent to avoid an inequitable result. (ARS 25- 202).

Modifications:
As time goes on, circumstances often change following a court order. For example, when a parties income changes, child support or spousal maintenance may need to be adjusted accordingly. On occasion, a different primary physical custodian could be designated. In these instances , we are responsive to your needs. ARS § 25-327 et seq

Grandparent Rights:
Arizona law allows grandparents certain rights. In many cases, the court decides what specific arrangements involving grandparents are best for a particular child. In these instances , we are responsive to your needs ARS § 25-409 et seq.

Child Relocations:
When the primary physical custodial parent moves, the non-custodial parent may object to the move. Arizona statute addresses this frequently issue but the statute does not address each case’s specific set of facts. Under certain circumstances a parent may move out of state with the child. Child relocation disputes can become complex as competing factors and interests evolve. As a result, a contested hearing is often needed to determine whether the child can move, future child visitation arrangements and which party is responsible for transportation costs. ARS § 25-408

Equal Access to the Law offers low cost, mistake-free legal document preparation as it relates to many areas of a family law case. We assist clients in divorce, annulment, legal separation, paternity, spousal support, orders of protection, child support, property issues, custody issues and post-decree modifications. We also assist in most emergency matters on short notice, as well as other family law matters, such as grandparent rights and applications for relocating minor children of the marriage.

If we can help resolve any or all of the above areas, please call for a free consultation…we can help!

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