Divorce with Minor Children in Arizona
How We Can Help With Your
Divorce with Children in Arizona
Getting a divorce with children follows the same process as a divorce, with a few extra steps. If you and your spouse can agree on how to share Parenting TimeThis is what it sounds like—this is when it’s the parent’s time with the child(ren). See A.R.S § 25-401(5). Prior to 2012, it was known as physical custody.Read more about Parenting Time and make decisions regarding the children, the process can be smooth and short in duration. But Arizona’s laws, rules, and procedures can become complicated if you and your spouse have different ideas with how your children should be raised. It can become even more intensive if Child SupportBy law, every person has a duty to support their biological or adopted children. See A.R.S § 25-501(A). This applies without or without a court order. The term “child support,” though, generally refers the Court-ordered amount one parent is required to pay to the other parent.Read more about Child Support is also needed and contested.
Simplified 10-Step Process
Divorce with Minor Children in Arizona
What to Consider in a Divorce with Children
When a divorce involves minor children you need to consider the following:
- Where the kids will live?
- What the parenting time/visitation schedule be?
- How will decisions regarding the children be made?
- Who will pay for what?
- How will you communicate with your ex?
Somewhat confusingly, the term “custody” in family law does not exist. The Arizona legislature changed this law in 2013 because of the common misconceptions and confusion surrounding the term. The important thing to remember about “custody” is that the two basic questions to be determined regarding children in a divorce are:
- When does each parent have the children in their care?
- Who makes major decisions (e.g. school, health, religion) about the children?
Most important concepts
Divorces Involving Custody Issues
Questions? We have answers.
Divorce in Arizona FAQs
How soon can I get divorced?
The quickest timeline for a divorce is a little more than two months, and it requires both parties to be in agreement. That is because of a 60-day Waiting PeriodUnder Arizona law, you must wait sixty (60) days from the date of service (i.e., the date the party who didn't file the divorce is formally served with the paperwork) before the divorce can be completed. This is implemented by the Legislature as a matter of public policy to…Read more about Waiting Period that is put in place under Arizona law. On this timeline, one spouse files the Petition for DissolutionA document that starts a case to end a marriage, i.e., the paperwork that starts the divorce.Read more about Petition for Dissolution, the paperwork that starts the divorce. Then they serve the other spouse (when things are amicable, this is done by giving your spouse the paperwork, and having them sign a notarized document that they received it, and this is then filed with the Court. That service date is important because it starts the sixty-day waiting period. At the end of the Waiting PeriodUnder Arizona law, you must wait sixty (60) days from the date of service (i.e., the date the party who didn't file the divorce is formally served with the paperwork) before the divorce can be completed. This is implemented by the Legislature as a matter of public policy to…Read more about Waiting Period, the two of you can file your Consent DecreeWhen the parties agree on all issues in a divorce, they draft and submit a Consent Decree. The Consent Decree should contain all the parties’ agreements on all the outstanding issues. Where children are involved, a Parenting Plan must be included with the Consent Decree. If…Read more about Consent Decree (and Parenting PlanThis is the Court order that contains the legal decision-making and parenting time orders. It sets forth the parenting time schedule and includes the other custody orders.Read more about Parenting Plan, if you have children, and a Property Settlement AgreementThis is a document that is part of the Divorce Decree. It divides up all the property. It gives substantially more protection and convey stronger title than do similar provisions made in a Consent Decree alone.Read more about Property Settlement Agreement, if appropriate). These are the documents that divorce you, contain your agreement, and divide your property and decide what happens with your child. Once the papers are signed by the judge, you are divorced.
Will I be able to stay in my house?
If you want to stay in the house, you will need to get your spouse to agree to it, and you will need to buyout your spouse’s interest in the house. Unless a Disclaimer DeedA legal document that once signed at the time of purchase by a party waiving all interest to real property current or future. This is commonly signed in a marriage when the parties buy or refinance a home and take the loan out in just one spouse’s name because the other spouse…Read more about Disclaimer Deed has been signed, your spouse is entitled to half of the Net equityThe difference between the value of the asset and what is owed on the asset plus any closing costs. It is generally synonymous with equity. Frequently, a divorcing couple is ordered to split the net equity. For example, if they owe $300,000.00 on the home and sell it for…Read more about Net equity in the home. To figure that out, you need to how much your home is worth and what is owed on the mortgage (in some cases, a home EquityEquity is a principle that permits the Court to apply certain principles in order to achieve a just and fair result. The applications the Court may employ are called equitable defenses. Arizona’s family law courts are courts of equity. Atkinson v. Atkinson, 405 P.2d 919, 921…Read more about Equity line of credit or a LienA legal claim made against a debtor's property. Generally, this comes in the form of a judgment that is then recorded on property the debtor owns. For example, if a judgment creditor gets a judgment of $10,000.00 in child support arrearages, and the judgment debtor owns a home…Read more about Lien on the home may impact the net equity). For example, if your home is worth $400,000, and there’s $200,000 left on the mortgage, the Net equityThe difference between the value of the asset and what is owed on the asset plus any closing costs. It is generally synonymous with equity. Frequently, a divorcing couple is ordered to split the net equity. For example, if they owe $300,000.00 on the home and sell it for…Read more about Net equity is $200,000, and you will need to pay your spouse $100,000 to buy out their interest. In most cases, you will need to show you are pre-qualified for a refinance. Most lenders can work with you to include the buyout as part of the refinance.
My spouse managed all the finances during the divorce. How do I know what is out there?
Before we can divide the marital property, we need to know what property is out there. The primary way we learn this is through DisclosureFollowing Rule 49, this is when you provide documents, evidence, and information regarding your case to the other side. Any evidence you want to use must be disclosed to the other side. Disclosure is not filed with the court.Read more about Disclosure and DiscoveryGoverned by Rules 51 to 65 of the Arizona Rules of Family Law Procedure, this is the formal process of acquiring information that you need to put on your case. This includes options like interrogatories (written questions), depositions, subpoenas, and Requests for Productions.…Read more about Discovery. Under the rules of procedure, both parties are required to make extensive disclosures of their assets and debts. You can request additional information via discovery—a process that allows you to use different tools to find money. For example, if you believe your spouse is not forthcoming regarding their salary, you can SubpoenaThis is a discovery tool where a party can demand a person to appear as a witness or hand over documents. A subpoena is a form that party fills out and takes to the Court where it will be stamped as a court order through the recipient of the subpoena or the other party may…Read more about Subpoena their employer for their pay history. There are numerous DiscoveryGoverned by Rules 51 to 65 of the Arizona Rules of Family Law Procedure, this is the formal process of acquiring information that you need to put on your case. This includes options like interrogatories (written questions), depositions, subpoenas, and Requests for Productions.…Read more about Discovery tools—depositions, subpoenas, InterrogatoriesThis is a discovery tool where one party sends the other party questions for that party to answer under oath. There is generally a 40-day deadline for the responding party to answer and return their answers to interrogatories. See ARFLP Rule 60.Read more about Interrogatories, requests for production, requests for admission, etc. You should speak with an attorney to learn your options regarding discovery and your duties under the disclosure rules.
My spouse started a business, can I get it in the divorce?
Maybe, unless an exception applies, you are an owner of the business because it was started during the marriage. Under Arizona law, it does not matter whether your name is on the business because it was started during the marriage, it is part of of the Community PropertyThis is property that belongs equally to both spouses. It includes any property, asset, or liability either party acquires during the marriage with the exception of property acquired by gift or inheritance. Parties can opt out of community property laws with a prenuptial…Read more about Community Property and needs to be divided as part of the divorce proceeding. There are a few exceptions: Where the business was inherited or gifted to your spouse or where or a prenup or postnup is in place, then the business may not be community property.
Can I get an annulment?
You can get an annulment if you entered into a marriage that is either an illegal marriage or became VoidableWhen something it is voidable, it remains enforceable unless and until one party takes action to void it. For example, if one party fraudulently tricks the other party into marrying them, their marriage is valid until the deceived party seeks an annulment in the Court.Read more about Voidable due to some defect in the marriage that occurred at the time of marriage. If you have only been married a short time and you realized you made a mistake, it may not be enough to get an annulment. The best way to figure out if you qualify is to meet with a divorce attorney.
Can I stop a divorce once it starts?
Yes, you can stop a divorce at any time during the process if your spouse has not been served or has not filed a Response, and you were the filing PartyAn individual, entity, or the state that either brings the lawsuit or is required to respond to the lawsuit. See ARFLP Rule 3(f).Read more about Party. But if the divorce has “officially” started, meaning, your spouse has been served or filed a Response, the two of you would have to agree to stop the divorce. If you and your spouse decide to stay married, the divorce case can be canceled or “dismissed” by filing a request with the Clerk of Superior Court and signed by both parties.
If my divorce was never finalized and I got remarried, what happens to my second marriage?
If your first divorce was never finalized, your second marriage is not legal. You will have to annul your second marriage and finalize the divorce from the first marriage before you can get re-married. Once the divorce is final, you can remarry your current spouse.
Do I have to go to Court to get a divorce?
You must go through the Court to get divorced. But, when parties are in agreement, the paperwork can be drafted by an attorney who will file it once it is signed by the parties. In that case, the Court will still open and close a case, but neither party will have to set foot in the Courthouse.
But if you cannot come to an agreement regarding your divorce, a judge will have to make those decisions for you.
Do I need an attorney for my divorce?
You are permitted to represent yourself in a divorce, but you are held to the same standard as an attorney. In other words, there is no excuse for not knowing the law or the rules. For that reason, if you do represent yourself, it may still be worthwhile to meet with an attorney and receive advice.
You may “need” an attorney if the other side has one. The rules and laws are complex, and people who represent themselves against an attorney are at a severe disadvantage. In contrast, if both parties are unrepresented, it is an even playing field; and, in that situation, hiring an attorney could give you an advantage.
Does it matter who files first for divorce?
It does not matter who files first or starts the divorce. One spouse must be the PetitionerThis term refers to the person or party who filed the original lawsuit. Defined in the rules as, “The person or entity [who] files the first petition.” ARFLP Rule 3(f)(1). In family law matters, some people develop an emotional attachment to being the Petitioner vs the Respondent…Read more about Petitioner and the other spouse must be the RespondentThis term refers to the person or party on the receiving side of the original lawsuit. Defined in the rule as “any opposing party other than the petitioner.” ARFLP Rule 3(f)(2). See also Petitioner.Read more about Respondent. There is no advantage or disadvantage to either (other than perhaps assignment of the courthouse nearest to the Petitioner).
Learn More About Divorce with Minor Children in Arizona
Divorce with Minor Children in Arizona Terms
Community Property
This is property that belongs equally to both spouses. It includes any property, asset, or liability either PartyAn individual, entity, or the state that either brings the lawsuit or is required to respond to the lawsuit. See ARFLP Rule 3(f).Read more about Party acquires during the marriage with the exception of property acquired by gift or inheritance. Parties can opt out of Community PropertyThis is property that belongs equally to both spouses. It includes any property, asset, or liability either party acquires during the marriage with the exception of property acquired by gift or inheritance. Parties can opt out of community property laws with a prenuptial…Read more about Community Property laws with a Prenuptial AgreementAn agreement made between two people prior to the marriage that can determine how they will hold property during the marriage and determine how property will be divided and how spousal maintenance will be ordered in the event of a divorce. In other words, it allows spouses to opt…Read more about Prenuptial Agreement or by getting legally separated. One commentator defined community property as the “system whereby the wealth which [the spouses] possess is common, belonging to both by halves.” Vaughn, “The Policy of Community Property and Inter-Spousal Transactions,” 19 Baylor L. Rev. 20 (1967).
Consent Decree
When the parties agree on all issues in a divorce, they draft and submit a Consent Decree. The Consent DecreeWhen the parties agree on all issues in a divorce, they draft and submit a Consent Decree. The Consent Decree should contain all the parties’ agreements on all the outstanding issues. Where children are involved, a Parenting Plan must be included with the Consent Decree. If…Read more about Consent Decree should contain all the parties’ agreements on all the outstanding issues. Where children are involved, a Parenting Plan must be included with the Consent Decree. If property is involved, a Property Settlement Agreement is also commonly used. The parties review the documents, and once everyone is satisfied with the language, the parties sign it in front of a notary. If they are represented, their attorney also signs it. Once the Court signs it, it becomes an order of the Court and the parties are officially divorced.
Court-Appointed Advisor (CAA)
This is a professional appointed by the Court, usually either a psychologist or a social worker, whose role is to interview the parties, the children, and RelevantAs defined by Black’s Law Dictionary, “Logically connected and tending to prove or disprove a matter in issue; having appreciable probative value — that is, rationally tending to persuade people of the probability or possibility of some alleged fact.” (Black’s 11th ed., 2019).…Read more about Relevant witnesses and make a recommendation to the Court regarding the custodial issues of legal decision-making and parenting time. They are primarily used to investigate situations where the FitnessThis means the parent can safely watch the child. In Troxel v. Granville, the U.S. Supreme Court defined a fit parent as who “adequately cares for his or her children.”Read more about Fitness of one or more parents is At IssueSomething the Court must decide, e.g., “At issue is whether Mother violated the Preliminary Injunction …" is the same as saying “The Court must decide whether Mother violated the Preliminary Injunction.”Read more about At Issue; however, best interests attorneys are generally preferred over CAA’s in cases where abuse is alleged. They are appointed under Rule 10.1 of the Arizona Rules of Family Law Procedure.
Dissolution
This is the Court’s word for a divorce. It means the marriage is dissolved or terminated and each party is now a single person. Arizona treats DissolutionThis is the Court’s word for a divorce. It means the marriage is dissolved or terminated and each party is now a single person. Arizona treats dissolution and divorce synonymously (in some other jurisdictions, a dissolution is when marriage ends by mutual agreement, and a divorce…Read more about Dissolution and divorce synonymously (in some other jurisdictions, a dissolution is when marriage ends by mutual agreement, and a divorce is where the parties don’t agree to end the marriage).
Legal Decision-Making
This is the right to make decisions on behalf of the child when it comes to decisions involving the child’s health, education, religion, or personal care. It does not include the right to dictate the child’s Parenting Time ScheduleThis is an agreed upon schedule of the dates and times that each parent will spend with the children. Holidays, weekends, when and where exchanges will happen.Read more about Parenting Time Schedule or place conditions on the other parent’s time. See A.R.S. 25-401(3).
Parent Information Program (PIP)
This is a mandatory class that anyone going through a newly started custody case must complete before final TrialA court hearing in which evidence and testimony are taken, and the Court makes a final determination of the issues raised in a petition. Trials and evidentiary hearings are somewhat synonymous, but the difference is one of scope: Evidentiary hearings are more limited in scope…Read more about Trial or before the Court issues a Parenting PlanThis is the Court order that contains the legal decision-making and parenting time orders. It sets forth the parenting time schedule and includes the other custody orders.Read more about Parenting Plan. Under state law, the Court is not supposed to award parenting time to anyone who has not completed the course. The course is available online and takes generally four hours to complete. Make sure you are using a Court-approved provider.
Parenting Plan
This is the Court order that contains the legal decision-making and parenting time orders. It sets forth the parenting time schedule and includes the other custody orders.
Parenting Time
This is what it sounds like—this is when it’s the parent’s time with the child(ren). See A.R.S § 25-401(5). Prior to 2012, it was known as Physical CustodyThis is an outdated term in Arizona family law. It has been replaced with the term “parenting time,” which generally describes the schedule of which parent has the child. See Parenting Time. See Parenting Time.Read more about Physical Custody.
Petition for Dissolution
A document that starts a case to end a marriage, i.e., the paperwork that starts the divorce.
Sole Legal Decision-Making
If the court orders sole legal decision-making, the parent with the sole legal decision-making authority makes all decisions related to the child’s health, education, religious upbringing, or personal care.
Don't Take Our Word For It,
See What Our Clients Have To Say.
Contact State 48 Law
We offer in-person, video, and phone consultations.