Is an Uncontested Divorce for you?
Too much of what we hear today is about divorce that involves the tremendous lengths to which parties will go to in order to “get even” with each other or to get what “they want” in the form of “pay-back”. There are tremendous emotional and financial costs involved in these strategies. Divorce does not have to resort to such low tactics and can be handled in a rational and amicable manner. If you and your spouse can talk with each other in a civilized manner, putting aside your hurt feelings for the benefit of resolving your issues in a rational manner, uncontested divorce may be an option for you.
Equal Access assists in both contested and uncontested divorces with regards to filing forms. An uncontested divorce requires that you and your spouse be able to agree on all of the issues that are relevant to your issues. Those issues include custody, child support, property division, and alimony. It is within your control in Arizona to agree to an Uncontested Divorce. In fact, because of court congestion and the real fact that divorce is incredibly stressful to the parties and damaging to their children, courts generally encourage parties to settle their divorce cases and encourage uncontested divorces.
Some couples decide from the outset that they want an uncontested divorce. They do not file any papers in court and work either on their own or with a mediation service, like Equal Access, to arrive at an amicable agreement. If a divorce action has not yet been started, you have the benefit of time to work on reaching an agreement with your spouse.
Other couples decide after they have already started the court filings that they want to take a break from the legal process and work towards an agreed upon or uncontested divorce. If a divorce action is pending and you want to enter into an agreement instead of proceeding with the litigation of a divorce, we can step in and assist you.
Every uncontested divorce begins with negotiations between the parties. You will have to reach an agreement on the division of your assets, custody, support and other relevant issues. You must then decide how you would like to proceed. You can decide to stay legally separated for a period of time, or you can obtain a divorce in less than 90 days.
If you would like to remain legally separated, you can enter into a Legal Separation Agreement that contains all of the terms of your agreement. If you would like to proceed with a divorce right away, you also have to enter into an Marital Settlement Agreement that covers all of the issues relevant to your family situation.
Uncontested Divorce FAQ’s
What is an Uncontested Divorce?
An uncontested divorce is a divorce that is reached by a settlement agreement between the parties. The terms of the divorce are agreed upon by the parties rather than imposed upon them by a court.
What are the terms used to identify the parties in a divorce proceeding?
The party who files the action for divorce is called the Petitioner, while the other party is referred to as the Respondent.
What is the difference between a contested and an uncontested divorce?
Divorces are either contested or uncontested. Contested divorces are those in which the respondent disputes an issue in the case – the divorce itself, the property division, child custody, alimony, etc.
Uncontested divorces fall into two categories:
Consent Divorces – the parties agree on all major issues; and
Default causes – where the respondent fails to appear to contest the divorce or any issue in it, either because he or she chooses not to oppose it, or because he or she cannot be located. By entering into a Marital Separation Agreement you make your divorce an uncontested divorce.
What are the advantages of an Uncontested Divorce?
An uncontested divorce, the process tends to be faster and cheaper than contested cases. By agreeing upon the terms of the divorce, the parties are able to maintain control of their own futures and are not forced to live with an arrangement imposed upon them by a Judge. Parents who are able to negotiate an uncontested divorce also tend to be better able to maintain a civil relationship after the divorce because they have not been forced to engage in the “mud-slinging” that is all too often inherent in contested cases. This reduced hostility makes it easier for the parents to raise their children together after the divorce.
Uncontested divorces are almost always the cheapest way to obtain a divorce. Lawyers charge by the hour and they have nothing to sell but time. By negotiating the terms of their own agreement, parties are able to avoid the many hours it would take their attorneys to prepare court documents, prepare in court and conduct a trial. The money that is saved can be spent on helping parties start separate lives for themselves, and support their children, after the divorce.
Uncontested divorces also guarantees parties a greater degree of confidentiality. In contested cases, the details of the parties’ finances and lives must be shared with their attorneys and aired before the court. In uncontested divorce cases, although the divorce papers are public records, the disclosures and negotiations shared between the parties during their preparation of the agreement are confidential between the parties.
When is an Uncontested Divorce a bad idea?
The process of an uncontested divorce works well for parties who are relatively amicable. If you are unable to work with your spouse or reach agreements with him or her, a totally uncontested divorce is likely not for you. If you can work out most of the issues, then have the court decide the remaining contested issue, we can help.
How Do I Obtain an Uncontested Divorce?
An uncontested divorce is obtained by entering into a binding Agreement with your spouse, commencing an action for divorce and filing the Agreement and other uncontested divorce papers with the Court.
How do I obtain an agreement?
The first step in obtaining an uncontested divorce is the negotiation and preparation of an agreement. Parties can reach an agreement by direct negotiations between themselves or by negotiations that are facilitated with the assistance of attorneys or a mediator. It is also possible to use Equal Access as a divorce mediator or another mediator to reach an agreement and then to use our services to complete and finalize your divorce papers.
What happens after we reach an agreement?
Arizona permits one party to obtain a divorce based on “no-fault” (ARS 25-312.3). This type of divorce requires only that one party wants to end the marriage. Hence, the lack of any finding of fault on the part of one spouse or the other. If no answer is filed to the no-fault complaint or petition, ordinarily a divorce will be granted on a default basis.
Do I need an attorney?
Not necessarily. Arizona law allows for participants in civil cases, such as divorce, to represent themselves. In Arizona, only 10% of all cases are represented by legal counsel.
Can an Equal Access assist both parties?
Yes. Since we are not lawyers, we are not “representing” either party. We merely do the paperwork at your direction. You make the decisions…we do the paperwork.
What is a “process server”?
A process server is an Officer of the Court, licensed by the Superior Court of Arizona.
He or she delivers (serves) the legal documents to the party being served with the divorce papers (the Respondent). The process server then files a “proof of service” with the court, certifying that the other party has received the divorce papers and been properly noticed. This method insures the proper notification of the Respondent, and does not require cooperation or signature of the Respondent.
What about our debts?
Debts incurred during a marriage is presumed to be “community” debts. The court generally divides the debt equally between the parties if the parties can’t agree. If the parties agree, the court doesn’t care whether it’s 50-50 or 90-10. Any debt incurred by a spouse before the marriage remains the separate debt of that spouse.
What issues should we consider?
In reaching an agreement, you must address all issues that are relevant to the divorce including but not limited to the division of real and personal property, responsibility for debts, child support, custody, visitation, health insurance, pensions and tax issues.
How is child support calculated?
Arizona has guidelines that are used for the calculation of child support. You should be aware of the guidelines and use the same to calculate child support. This does not mean, however, that you must use the amount arrived at under the guidelines as the agreed upon amount of support. If you agree to use another figure, however, the court may object in that the agreed upon amount is not appropriate and sufficient to support your child. You can review Arizona’s child support laws here>>>
What is Physical Custody?
Physical custody is who the child lives with. If a parent has “primary physical custody”, the child lives primarily with that parent and visits with the other. If parents share physical custody, the child’s time is equally divided between the two homes.
What is Legal Custody?
Legal custody is who has the right to make important legal decisions for the child. If a parent has sole legal custody, he or she will have the right to make these decisions without any input from the other parent. If parents have joint legal custody, the parties must consult with each other and reach agreements on these issues.
How are Retirement Funds divided?
The division of retirement accounts raises complicated and sometimes substantial tax issues. So that you can be apprised of the same, you should consult with a financial planner, or an accountant before agreeing upon a division of these assets.
After you have agreed upon the manner in which a retirement account will be divided, we can assist you preparing a Qualified Domestic Relations Order (QDRO) which is typically drafted after the divorce has been concluded. QDRO’s instruct the plan administrator on how to divide the retirement account. The QDRO must be approved by the plan administrator and the parties before it is submitted to the Court for signature. After it has been signed and entered by the Court, the QDRO must be filed with the plan administrator.
What are the costs involved for filing a divorce?
Equal Access to the Law fees range from $250 to $500 depending on the complexity of your case. The filing fee is currently $236. If a response is filed, add another $191. These fees are collected by the government and are in addition to any service or legal fees or those charged by this website. For more about all court fees>>>.
If I cannot afford to pay the fees, can I have my fees deferred or waived?
Yes, you can. You must fill out an Application for Deferral of Filing Fee. You can also obtain an order to defer the service fees for the Sheriff’s Office to serve the documents for you.
Marital Settlement Agreement… What is it?
A marital settlement agreement spells out the terms of the divorce and the relationship between the two spouses after the divorce. Parties to a divorce are encouraged to enter into a written property settlement agreement containing provisions for the maintenance of either spouse, the disposition of any property owned by either spouse, the allocation of debts, and the support and custody of any minor children. The agreement of the parties is then presented to the court for its approval and a decree of dissolution is entered.
Filing a marital settlement agreement is not always required (no children or no assets) but it has many advantages. First, it prevents ambiguities. Second, it avoids court because the judge will most likely honor the written agreement if written correctly and if it covers all material aspects of the divorce. Third, it shows the court that the issues were considered carefully.
Marital settlement agreements can be entered into at any time before the final judgment.
How is child custody decided?
The parents must decide on the custody of minor children. Custody includes physical custody, i.e., where will the children live. It also includes legal custody, or who will make the important decisions regarding the children’s health, education, etc. Both physical and legal custody can be either joint or sole.
Note: Joint custody means the sharing of parental rights and duties and not just necessarily equal time.
Must I go to court?
If your divorce is uncontested and if a marital settlement agreement is filed, then in most cases, no. In that case, all of the legal documents can be filed with the court, and the judgment can be sent to you. The court could request a formal or informal hearing. At an informal hearing, the judge may ask questions about certain facts presented in the papers. At a formal hearing, the divorce case must be presented from the beginning. In most uncontested cases, however, all questions relating to the divorce are settled prior to the actual hearing (or trial). Thus the hearing (or trial) often lasts only minutes.
How can I change my name upon divorce?
Upon request, the judge handling your divorce can usually make a formal order to restore your former or birth name. Obtain certified copies of your divorce decree as proof of name change to use on your identification and personal records. You can simply begin using your former name but, be sure to have it changed on your identification and personal records (Social Security,etc).
For more on Name Changes>>>
What are the Residency requirements for filing for divorce?
The requirements for establishing residency is defined by ARS 25-312 which states the party who files must be a resident for at least 90 days.
If one spouse meets the residency requirement of a state or country, a divorce obtained there is valid, even if the other spouse lives somewhere else. The courts of all states will recognize the divorce.
What is a covenant marriage and can it be dissolved?
The State of Arizona recognizes a covenant marriage, which is a marriage that is much harder to get out of than a normal marriage. A covenant marriage entered into in Arizona may only be dissolved on the following grounds:
The respondent spouse has committed adultery.
The respondent spouse has committed a felony and has been sentenced to death or imprisonment.
The respondent spouse has abandoned the matrimonial domicile for at least one year before the petitioner filed for dissolution of marriage.
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 acts of domestic violence 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.
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.
What is the difference between “fault” and “no-fault” grounds for divorce, and how does this relate to “contested” and “uncontested” divorces?
“No-fault” means that the fault of one or both of the parties in destroying the marriage is not an issue in the divorce. Spouses obtaining a no-fault divorce usually agree on all terms of the divorce (property division, child custody, etc.). This is known as an uncontested divorce. However, if the parties cannot agree on terms, the divorce is a “contested divorce.” It is possible to agree to “no-fault” grounds, but still end up in a contested divorce due to disagreement about terms.
How are disagreements in a contested divorce resolved?
Only a judge, not an attorny, can decide all issues on which the parties cannot agree. Normally the judge must also approve agreements between the parties to make sure they are not fundamentally unfair to one party.
Can I use a Equal Access to fully resolve a contested divorce?
Yes and No. A contested divorce is sometimes beyond the scope of our divorce assistance in that we are not licensed to make court appearances. We highly recommend you obtain a local attorney to represent you for the “contested” issue. Equal Access can get you started and save you time and money if the parties can resolve many of the issues. Then, if your divorce runs into an issue that can’t be decided by the parties, have the court decide, then come back to us to finalize the paperwork.
Who pays for debts made during the Marriage?
Parties should agree which of them will pay each of their joint debts. Even so, your agreement (and even the decree of the court) is binding only between you and your spouse. Creditors are not required to honor the apportionment of joint debts in the Decree of Divorce or agreement. You can divorce your spouse but you can’t divorce your creditors. So, if the spouse who is supposed to pay fails to do so, the creditors may seek payment from the other spouse. Then he or she has to try to collect the money from the one who was supposed to pay.
What factors does the court consider in deciding claims for alimony?
Maintenance can be awarded to either spouse, if the spouse seeking maintenance:
Lacks sufficient property to provide for his or her reasonable needs;
Is unable to support himself or herself through appropriate employment;
Is the custodian of a child whose age and condition is such that the custodian should not be required to seek employment outside the home;
Lacks earning ability in the labor market to adequately support himself or herself;
Contributed to the educational opportunities of the other spouse; or
Had a marriage of long duration and is of an age which may preclude the possibility of gaining employment adequate to support himself or herself.
Marital misconduct is not a factor to be considered.
The factors to be considered are:
The contribution of the spouse seeking maintenance to the earning ability of the other spouse and the extent that the seeking spouse reduced his or her income or career opportunities to benefit the other spouse;
The time for the spouse to acquire education and training for suitable employment;
The spouse’s future earning capacity;
The spouse’s standard of living during the marriage;
The duration of the marriage;
The ability of the spouse providing maintenance to meet his or her needs while providing the maintenance to the other;
The financial resources of the spouse seeking maintenance (including marital property awarded and the spouse’s ability to meet his or her needs independently);
Any destruction, concealment, fraudulent disposition, or excessive expenditures of jointly-held property;
The comparative financial resources of the spouses including their comparative earning capacities;
The age of the spouses;
The physical and emotional condition of the spouses;
The usual occupations of the spouses during the marriage;
The vocational skills of the spouse seeking maintenance;
The ability of both parties to contribute to the future educational costs of any children; and
Any other factors the court may deem just and equitable. Awards of maintenance are to be paid through the court unless the spouses agree otherwise. Maintenance agreements may be made non-modifiable by agreement of both spouses (ARS 25-319 and 25-322).
Can I change my child’s name upon divorce?
No. A child’s name may be changed only by court petition and when it is in the best interest of the child to do so. The court will consider the length of time the father’s name has been used, the strength of the mother-child relationship, and the need of the child to identify with a new family unit (if the change involves remarriage) and balance these factors against the strength and importance of the father-child relationship. For more on Name Changes>>>
When can I remarry after divorce?
In Arizona, you can get married the day your divorce decree is made final. In the few states that do set a time limit, the period is not very long, but you would have to check the laws in your state to determine whether or not there is any restriction on your remarriage.
How common is divorce?
Divorce is common in the United States. In 1997, one out of every two married couples got divorced. Divorce affects more than 3 million husbands, wives and children every year. That’s nearly the same number of people that are born annually. One in three of all first marriages end in divorce along with 50 percent of second or third marriages. Divorce is also the number one reason homes get listed for sale.