Divorce Attorneys in Scottsdale, AZ

Divorce needs no introduction. Regardless of where you are in the divorce process, the most beneficial thing you can do is to understand your options, learn more about how the system works, and know the possible outcomes.

Our job is to make your divorce less stressful. We ensure our clients are always informed throughout the process. We encourage and facilitate settlement and negotiations outside of the courtroom, but when that is not possible, we get results in the courtroom.

Deciding to Divorce

Before the divorce process officially begins is the best time to meet with an attorney to learn about your options and the process. Knowledge is power and knowing what to do before you start a divorce can make the process easier. If you are the one asking for a divorce, you should make sure you are ready before you start. But keep in mind, just because you are exploring the idea of a divorce, does not mean you have made up your mind. It is not like jumping off a cliff; you can take small steps until you know if it is the right decision for you. The beginning of a divorce is reversible. If you discover along the way that you would like to reconcile with your spouse, you should try. You can stop the process any time before the court signs the final decree. This is the time to explore your options and to make sure divorce is right for you.

Questions to think about in the Decision stage:

• Do you want to try and save your marriage?
• How will your spouse react?
• Where will you live?
• Do you have enough money for expenses?
• Do you need an attorney?
• Do you need to protect your money?
• Should you file first?
• Do you know your financial situation?

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Filing for Divorce

Every Maricopa County divorce requires standard documentation to start the legal process. A Petition for Dissolution must be filed with the court and whomever filed the Petition must legally serve the opposing party. During the divorce proceedings the person who filed for the divorce is referred to as the “Petitioner” and the person who responds to the divorce is referred to as the “Respondent”.

The court does not favor either party in the divorce. It does not matter if you file for the divorce or if you respond. Arizona is a no-fault state, which means that a person does not need a reason for seeking a divorce. Terms Petitioner and Respondent are only used to differentiate between the two people involved.

Serving the Divorce Petition – In an Arizona divorce, once a Petition has been filed, a copy of the Petition and the related documents must then be legally served on the other spouse. Service can be accomplished in a few different ways, including by waiver, by personal service, or by process server. The date of service is important, because it is the date the “marital community” is deemed separated.

End of the Marital Community – From the date of service going forward, the parties will no longer accumulate “community” property or debt; that is, property that each spouse has a claim to and debts that each party is deemed equally responsible for.

Preliminary Injunction will be served along with the Petition. This stops both parties from selling community property, making changes to existing insurance coverage, and removing minor children from the state without court permission or the other parent’s written consent.

“Cooling-off” Period – Once a Petition for Dissolution has been filed and served to the opposing party, the mandatory 60-day “cooling off” period begins. This means that the soonest you can be officially divorced is 60 days from the date of service.

Response to a Petition for Divorce – In an Arizona divorce, the responding spouse has 20 days after service to file a Response to the Petition of Dissolution served within Arizona; he or she has 30 days to respond if served outside of Arizona.

*If No Response to the Petition is Filed – If the responding spouse fails to file a Response within the allowed time, the petitioning spouse may apply for a default judgment. A spouse applies for a default judgment by filing an Application and Affidavit for Default. The responding spouse will then have 10 days to respond to the Application and Affidavit for Default. If the spouse fails to respond, a Default Decree of Dissolution of Marriage may be obtained, which grants the divorce on the terms of the spouse who originally filed the Petition.

*If Both Parties Agree to All Issues – In an Arizona divorce, if a Response is filed and the parties are able to agree on all issues, a Consent Decree of Dissolution of Marriage setting forth all the agreements can be submitted to the court.

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Simplified Divorce Process

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Court Involvement in Divorce

Divorces in Arizona follow a similar path. The primary court events are outlined below:

Resolution Management Conference (RMC) – The court typically schedules an RMC to get acquainted with the case. This takes place in court (virtual or in-person) and is attended by both parties and their attorneys.

Rule 69 Agreement – At the RMC, the court will try to determine if there are already any agreements and if so, the court may have those agreements recorded as a formal and binding agreement, known as a Rule 69 Agreement. The court will also review the status and decide if there are any, services and/or orders the parties need to help conclude the matter. Those services and/or orders could include drug testing of one or both parents, mental health evaluations, vocational evaluations, and business evaluations.

Parenting Conference – If parenting issues are disputed, the Court may Order that the parties attend a parenting conference or a family assessment. Some parenting disputes may require a court appointed advisor for children.

Settlement Conference – Next, the Court will generally schedule a settlement conference with the court’s alternative dispute resolution (ADR) services. A settlement conference involves the help of a neutral mediator who attempts to help the parties resolve the remaining issues without going to trial.

Trial – Last, the court will set a trial date to hear any disputed issues; if the parties are able to settle all issues before the trial date, they can notify the Court to cancel or “vacate” the trial. If the matter does proceed to trial, the court will issue a divorce decree within 60 days of the trial.

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Finalizing a Divorce – Decree

In an Arizona divorce, your divorce decree will terminate your marriage and you will be officially divorced on the day the Court files your signed decree with the Clerk.

Depending on your circumstances, your decree may also determine child custody (known as legal decision-making and parenting time in Arizona), child support, spousal maintenance, property and debt division, responsibility for attorney fees, and changing back to prior name. If you have a minor child or children together, both parents must separately attend a court-mandated education program about the impact of divorce on children. This requirement must be completed before the court will grant a divorce involving minor children.

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 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 complex if child support is contested.

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?

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“Custody”

Somewhat confusingly, the term “custody” does not exist in Arizona family law. 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:

Parenting Time – When does each parent have the children in their care?

Legal Decision Making – Who makes major decisions (e.g. school, health, religion) about the children?

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The Most Important Concepts For Divorces Involving Custody Issues

1. The Best Interest of a Child

   The Best Interest of a Child is a standard by which a court determines what arrangements would be to a child’s greatest benefit, often used in deciding decision-making and parenting time matters.

2. Legal Decision-Making

   Legal Decision-Making refers to who makes ‘major decisions’ on behalf of the children. Major decisions include education, medical care and religion. The court can award Sole Legal Decision-making or Joint Legal Decision-making or some combination of the two.

3. Parenting Time

   Parenting Time refers to both custody and visitation. Parenting Time outlines where the children live and when they see each parent. Equal parenting time is when both parents have the children for the same amount of time. There are a variety of different parenting time schedules to satisfy these arrangements.

4. Child Support

   Child Support is a court-ordered payment paid by one parent to the other parent for the financial support of a child. The amount is calculated by Arizona’s Child Support Guidelines, which calculated in a Child Support Worksheet

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Simplified Divorce with Children Process

In a Divorce, the Court is required assign to each party their share of the assets and liabilities.

Existing Contracts.

The Court can and will assign to each party their share of the assets and liabilities. What the Court cannot do, however, is rewrite existing contracts. It can order one party to be responsible for the debt. It can include a “hold harmless” and “indemnify” provisions that require the spouse awarded the debt to pay back the other spouse if creditors of that debt come after them.

But at the end of the day, the contract signed when the parties were married is still intact. And a creditor can go after either party, regardless of what the divorce court.

This is important because there are usually two contracts in almost every marriage that can have a major financial impact on the parties: A mortgage and a vehicle loan. It’s also common to see HELOC loans. So, what can be done to protect the party who is not taking the house or the car?

Here are a few options:

1. 1. The decree should set deadlines for when certain things need to happen by, such as a deadline for refinancing the house or vehicle, removing the other spouse’s name from the title for the house or vehicle, taking their name off the insurance. Otherwise, the spouse who is not awarded the property remains on the loan and can be potentially liable in the event someone is injured on the marital residence property or in a car accident. That is a major risk financially.
   2. The Decree should set a consequence if these deadlines are not met (usually requiring the asset be sold and the equity divided).
   3. In the event a home or other major community asset is sold, the parties can agree that the funds gained from the sale are first applied to existing debts, such as credit card debts.

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Refinancing.

The easiest way to remove names from loans is for the spouse who is keeping the home, vehicle, or other property on which the community has a loan. The biggest question is always—does the person who wants to keep qualify to refinance it. This needs to be known before a divorce agreement is made. The best thing to do is to have that person prequalify. If the prequalification is conditional, then those conditions need to be known and so the parties either negotiate to meet those conditions or abandon the idea of refinancing. As mentioned above, whenever parties agree to a refinancing, there should be a deadline for when it occurs and a consequence if it is not met (usually listing the home, vehicle, or other asset for sale).

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Taxes.

Divorce has a tremendous impact on taxes from how you file to what you pay to who claims the child in what year. Here are some ways a divorce may impact your taxes:

• Filing Status. “Married filing jointly” is often the most desirable way to file your taxes because it generally contains the lowest liability of the all the filing statuses. Once divorced, you obviously can no longer file as married. You will, as part of the divorce decree, determine whether you will file jointly or separately for the last tax year in which you are married. Be aware that if filing jointly, you are responsible for all representations made on that return—in other words, if you file jointly, and your spouse lies about their income, you are also responsible for the fraudulent tax return.
• Name on Your Filing. It is common for people to change their last name as part of the divorce process. The name of your tax return must match the name on file with the Social Security Administration. Therefore, if your name changes as part of the divorce, you need to contact the Social Security Administration and update your name.
• Prior Tax Liability. If you owe taxes from any year in which you were married, both spouses could be liable on the marriage. For people who have failed to file tax returns during the marriage, this is the time to get caught up, so that the two of you can split any liability within the Decree.
• Child Support Payments. Child support payments are tax neutral. The person paying them cannot deduct them; the person receiving them does not need to report them.
• Child Tax Credit. The Parenting Plan will make orders regarding in what tax year each parent may claim each child. The ability to claim the child is usually dependent on a parent being up to date on child support.
• Child Support Arrearages. If a parent has been found by a Court to owe child support arrearages, the state of Arizona will intercept any tax return or stimulus paid that parent and apply it toward their child support obligation. Arrearages are different than the ongoing child support obligation. Arrearages mean that you have not paid prior child support amounts.
• Spousal Maintenance. Under the Trump tax law, the person paying spousal maintenance pays income taxes on the amount they pay to their former spouse. The receiving spouse does not pay income tax on what they receive in spousal maintenance.
• Qualified Domestic Relations Orders. Retirement accounts must be divided at the time of the divorce. To avoid tax penalties, spouses must use a Qualified Domestic Relations Order (QDRO) to divide any retirement asset. The QDRO must comply with federal ERISA regulations to be recognized. Those requirements are highly technical. For this reason, most people use specialized QDRO attorneys to prepare their QDRO.
• Basis of Assets. When you buy an asset, what you paid for it is your “basis” for tax purposes. When you sell it, the sell price minus the basis is your profit or loss. Profits can be taxed. Let’s give an example of how that works. Let’s say you buy your house for $300,000.00 and sell it for $500,000.00. Your basis is the $300,000.00 purchase price. Since you sold the home for $200,000.00 above your basis, you have $200,000.00 in taxable income. The value of assets on divorce is not a taxable event, meaning you don’t have to pay taxes on assets you receive in the Decree. But the divorce also does not reset the basis. Additionally, while assets are divided equally, there may be an inequitable distribution of the basis of the assets, meaning one of you could pay substantially more in taxes when selling the assets awarded to you than the other spouse.

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Social Security.

Many people will need to rely on their spouse’s Social Security benefits in order to meet their needs in their old age. While Social Security is not divided in a divorce, a divorce will impact your ability to draw on your spouse’s Social Security. Here’s what you need to know about social security and divorce:

• The length of marriage matters. The marriage has to have lasted at least 10 years for you to be eligible to draw on your spouse’s social security.
• Eligibility. In addition to the 10-year rule, to draw on an ex-spouse’s social security, you need to be at least 62 years old at the time you start drawing on the benefits (you can be under 62 at the time of the divorce), you cannot be remarried, their benefit must be greater than the benefit you would otherwise be entitled to, and you must be entitled to Social Security retirement or disability benefits.
• Remarriage. If the spouse receiving benefits from the ex-spouse remarries, they can no longer receive Social Security benefits from the ex-spouse. If the spouse whose benefits are being draw remarries, it does not affect their ex-spouse’s ability to draw on their benefits.
• Amount of Benefit. An ex-spouse is entitled to up to 50% of their ex-spouse’s benefit.
• Ex-Spouse’s Benefit Not Affected. Benefits paid to a divorced spouse do not reduce the amount their ex-spouse receives in social security.
• When Entitled to Two Benefits. Some spouses may be entitled to two benefits: Their own benefit or their spouses. In that case, they get the benefit that is the higher amount, but they do not get both benefits.
• Disclaiming Social Security. Divorces occur in state court. Social security is a federal benefit that is governed exclusively by federal law. While rare in Arizona, some Divorce Decrees may include a clause where one spouse gives up their interest in the other spouse’s social security. Such clauses are unenforceable. A divorce decree cannot divide social security benefits. State courts simply lack the jurisdiction to do so.
• Widow’s Benefit. If eligible for an ex-spouse’s Social Security benefits, a spouse may be eligible for a widow or widower’s benefit should the spouse die.

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Health Insurance.

If you are on your spouse’s health insurance, your health insurance is going to be affected by divorce. During the divorce proceedings, your spouse will be prevented from removing you from their insurance under the Preliminary Injunction, a court order that, under Arizona law, goes immediately into effect when the Petitioner (aka the person who starts the divorce in the Court) files for divorce (It is binding on the Petitioner at the time of filing, and binding on the Respondent at the time of service).

But once divorced, health insurance is something you will be responsible for. Fortunately, federal and state laws offer a stepping-stone approach to people who have recently been divorced. Whether you qualify really depends on the status of your spouse’s employer.

The federal law, known as COBRA, requires employers of 20 or more employees to offer their employees and their families a temporary extension of health coverage (18 months) under certain circumstances, including divorce. The state law, known as mini-COBRA, extends the eligible businesses who must offer this insurance to a divorced spouse to include small businesses of less than twenty (20) employees who offer health insurance as a benefit. Here is what to know about this coverage:

• People going through divorce are given the right to continue or convert their health insurance. Information regarding this option is provided in the Notice to Convert Health Insurance, which is one of the documents filed to start a divorce.
• But if you are Medicare eligible or eligible for disability benefits, your spouse’s employer will not be required to convert or continue your insurance.
• The spouse being insured is responsible for premiums and may include to include the children.
• If you want to continue or convert your health insurance following the divorce, you must contact the insurance company ASAP and start paying the premiums within 31 days of when the insurance would otherwise stop.
• If continued, the insurance company may choose to keep them on the same plan as their former spouse or convert them to a new policy.
• If converted, the new policy must be the one most similar to their old coverage unless the insured chooses a lesser policy.
• You can’t be denied a continuing or converted policy because of a pre-existing condition.

*If you are not extended health insurance through one of the COBRA laws or if you want to consider a different plan, you should be aware that divorce is one of the “life-changing events” that allows a person to obtain insurance outside the Open Enrollment Period.

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Life Insurance.

If you designated your spouse as a beneficiary of your life insurance policy and you are now divorcing your spouse, you may need to revisit your beneficiary designation on the life insurance.

In 1995, the Arizona state legislature adopted a revocation-upon-divorce law that, among other things, automatically revokes your spouse  as the beneficiary of the life insurance policy at the time of divorce. So if your spouse has been the beneficiary, and you are getting divorced, you now have no beneficiary for your life insurance policy.

So once your divorce is final, one of the first things you should do is call your life insurance company and designate your beneficiary. It can be your ex-spouse or it can be someone else. This change should be made in writing.  If you choose to keep your ex-spouse as a beneficiary, the revocation-upon-divorce law will not apply to your situation so long as you re-designated your spouse as the beneficiary after the divorce became final (that means you’ve received the Divorce Decree, signed by the judge, divorcing the two of you).

Be aware that this law does not apply to employer-provided life insurance policies. Those employer-provided benefits are governed by a federal law called ERISA, and it keeps the beneficiary you designate intact, regardless of whether you are divorced or married. This federal law overrides state law. If you have one of these plans, and you do not want your spouse to receive the proceeds, you must change the beneficiary. We recommend you contact your plan administrator ASAP to make that change.

Also be aware that in cases of spousal maintenance and child support, your spouse may require you to keep life insurance designating them as the beneficiary for the remaining amount owed for support. This is quite common. If it’s required of you, then, again, you should re-designate your spouse as the beneficiary once the divorce is finalized.

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Children’s college funds.

A divorce can affect the finances available for your child’s college education. Here’s what you need to know about how divorce might affect your child’s educational funding:

Arizona law does not require a parent pay for a child’s college education, but the parents can agree that they will pay for it. The duty to pay child support terminates either when the child turns 19 or when the child is 18 and graduates high school. Arizona law does not require a parent pay child support beyond that point, except if a child has severe disabilities.

But if you want such an agreement, an option is available to you—reach an agreement in writing with the other parent that they will fund the child’s education. If you make this agreement and put in the Divorce Decree, the Court will enforce it. *Be aware that to enforce it, you will need to file in civil court, not family court, to enforce that provision.

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529 Savings Plan.

If a 529 savings plan was started during the marriage, it must be divided in the Divorce Decree. A 529 plan has many advantages for parents looking to save for their child’s education. But despite being for the child, the 529 actually belongs to the parents. That makes it a marital asset.

The 529 will need to be divided as part of the Decree. This is usually done by designating one parent as being in control of the account and including language within the decree requiring that parent to maintain the 529 savings plan for the benefit of the child.

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Inheritance.

If your spouse is named as a beneficiary in your will or trust, that is revoked upon divorce, although you can execute a new will renaming your spouse as  a beneficiary in a will or a trust. For more information on this, see our tab on “Spouse as a Beneficiary.”

But how does divorce affect what you inherit? Divorce should not affect what you inherit. Inheritances are exempt from the community property laws in Arizona, so when it comes to your inheritance, it should not matter whether you are married or not.

However, Divorce can impact your inheritance, if you “commingle” your inheritance with community funds. Let’s say, for example, you inherited $10,000.00 from your grandmother and you put that money into the account where your money and your spouse’s paycheck goes, that $10,000 is going to be considered community property.

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Spouse as a Beneficiary.

During a marriage, spouses commonly list each other as beneficiaries on various financial instruments, including wills, trusts, IRAs, 401(k)’s, etc. Upon a divorce, a law may or may not automatically change the beneficiary on these financial documents. Here’s how those various financial instruments are treated during a divorce:

• Wills. Ex-spouse is automatically removed as a beneficiary but will remains valid. Ex-spouse is automatically disqualified from being a personal representative, guardian, or trustee. To add ex-spouse back into a will or into a fiduciary position, a new will must be executed.
• Living Trust-Marital Property Trust. Each spouse is considered to have predeceased the other. If a spouse dies before trust is dissolved, their one-half share of community property (and any of their separate property) is distributed as if there was no surviving spouse.
• Living Trust-Separate Property Trust. Ex-spouse disqualified as a beneficiary and as acting as a trustee. Like a will, if the person wants their   ex-spouse to remain a beneficiary or trustee, they must re-execute the trust.
• Estates without Wills or Trusts. Many people die without either a will or a trust. The legal term for this is that they died “intestate.” Who receives their estate follows state law on intestate succession. An ex-spouse does not receive anything under the state’s intestacy laws.
• Power of Attorney. Ex-spouse automatically removed as an agent. Power of Attorney may remain intact if another person is designated as alternate agent.
• IRA’s. Under Arizona law, the divorce disqualifies ex-spouse as a beneficiary. But there can be some gray areas here if the IRA administrator is never informed of the divorce, and if a long period of time has passed since the divorce and death, permitting an argument the IRA owner intended to keep ex-spouse as beneficiary.
• 401(k). A 401(k) falls under ERISA, a federal law that trumps state laws. Unlike Arizona’s law that removes an ex-spouse as a beneficiary, ERISA has no such law. Therefore, an ex-spouse remains the 401(k)’s beneficiary. The beneficiary designation must be changed if the 401(k) owner wants a different result.
• Pension. Pensions also fall under ERISA. Therefore, if an ex-spouse is designated as the beneficiary, they remain the beneficiary.
• Federal Retirement Plans. Again, these fall under ERISA. Therefore, if an ex-spouse is designated as the beneficiary, they remain the beneficiary.
• Life Insurance. An ex-spouse is automatically removed as the beneficiary of a life insurance plan unless it’s employer-provided insurance in which case the beneficiary remains. The Court can, however, order that one spouse maintain a life insurance for the benefit of the other spouse, particularly if there’s spousal maintenance or child support award that may be owed.

Remember this is contingent on there being a divorce. If a spouse dies before the divorce is finalized, the beneficiary designations remain unchanged. If a couple is legally separated, the beneficiary designations remain unchanged.

 

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Bankruptcy.

Divorce and bankruptcy proceedings should not coincide with each other. Either wait to divorce until after the bankruptcy is complete or wait to file bankruptcy after the divorce is complete. Be aware that there are risks associated with both options and some debts cannot be discharged in a bankruptcy, including spousal maintenance, child support, and attorney’s fees owed from a child custody

For example, let’s say Spouse A and Spouse B owe $100,000.00 on a loan. If they file for bankruptcy together before the divorce, this debt can be discharged for both of them, but both of them also have a bankruptcy on their record.

So let’s say they opt to wait until after the divorce. The divorce court orders Spouse B to be solely responsible for the $100,000 debt. After the divorce, Spouse B files for bankruptcy, and the debt is discharged. What do the creditors do? They come after Spouse A for the full $100,000.00. They can do so even though the divorce court assigned the debt to Spouse B and the debt was discharged. This is because the Courts cannot change the terms of existing contracts.

*If you are considering a bankruptcy and a divorce, this is something that should be discussed with a bankruptcy attorney.

Someone may choose to quit a good job because their spouse got a promotion in a new city. A couple may decide one of them should stay home to raise the children. Someone else may forego pursuing a degree to support their spouse as they earn theirs. These are all choices that make sense as long as the couple stays together.

Then comes the divorce. And suddenly, one spouse is faced with a reality they had not prepared for—providing for themselves on their own. It can be challenging to transition back to the workforce and in some cases, it may not even be possible. That’s where spousal maintenance may come in. On the other side, being forced to pay spousal maintenance can feel unfair. Not only are they getting divorced, but now they must pay their spouse, even though their spouse is already getting a lot of the benefits and financial assets based on the overall division of property.

Arizona has tried to balance these two positions through creating a spousal maintenance system that allows dependent spouses to transition to their independence.

How Spousal Maintenance is Decided

The law permits spousal maintenance (or alimony as it’s called in other states) for several reasons—to help maintain the lifestyle the parties enjoyed during the marriage, to account for the role a spouse’s took during the marriage (i.e., helping their spouse fulfill career ambitions by staying home to save on childcare costs), but the reason that is most likely to be reflected in a spousal maintenance order is to transition the receiving spouse to becoming self-sufficient.

Arizona law attempts to balance these interests. The state legislature has built numerous considerations into the spousal maintenance laws, and as of July 2023, there are finally Spousal Maintenance Guidelines and a calculation used for spousal maintenance awards outlined in ARS 25-319 Maintenance.

Before the court adopted the Self-Sufficiency Calculator, spousal maintenance was one of the most-litigated issues in a divorce. Even with the new guidelines, spousal maintenance is not automatic, and it is an extremely complex issue. The calculation has taken a once gray area and attempted to solidify the standards. If you think your divorce is one in which spousal maintenance may be an issue, we urge you to consult with an attorney to understand the rules.

Some Questions to Consider:

• How will the potential recipient spouse support themselves after the divorce?
• How long will it take the potential recipient spouse to become self-sufficient?
• For both payor and recipient, what amount is needed each month to meet your reasonable needs?
• Are the expenditures the spouse is claiming reasonable?
• What kind of training or work experience might the potential recipient spouse need to become financially independent? And how long will that take?
• What is the monthly principal payment on the community mortgage(s)?
• What opportunities did the potential recipient spouse forego for the benefit of the family or the potential paying spouse’s career?

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Eligibility and Entitlement

Just because there is a new calculator available does not mean the lower or non-earning spouse is automatically eligible or entitled to spousal maintenance. In fact, the eligibility for spousal maintenance has not changed.  A party requesting spousal maintenance must still meet at least one of the factors under A.R.S. § 25-319(A). See Ariz. Sp. M. Guidelines § 1(D) (affirming that A.R.S. § 25-319(A) controls eligibility). See id. (If a court determines that the requesting spouse is not eligible for spousal maintenance, there is no requirement to use the Spousal Maintenance Calculator). The calculator is not meant to be used to prove an award is warranted. Entitlement to a spousal maintenance award means that if a spouse is eligible and the calculator provides a figure and duration, the requesting spouse is entitled to the payments.

Steps and Determining Factors

Once eligibility is determined, the new Guidelines require Courts to use the Spousal Maintenance Calculator and go through the below factors and steps to determine how much should be owed.

• Family size. The family includes both spouses and any child who meets the following criteria: One of the parents has a legal responsibility to pay for the child, and that parent is actually paying child support. This may include an adult child who has special needs that render the child incapable of supporting themselves.
• Combined spousal maintenance income. What will count as income is rather expansive—essentially any income a spouse receives with only a few exceptions that cover items such as money exchanged between the parties pursuant to a Court order and certain military disability benefits. The Court can also attribute income to someone who is unemployed or underemployed.
• Family’s average monthly mortgage principal. The Court will look at what’s been paid on the principal of the mortgage in the last twelve months and divide that by twelve.
• Calculate Expenditures. Using the numbers yielded in the prior three steps, the Calculator will do this automatically.
• Calculate the amount of spousal maintenance. The calculator will then provide a range for how much spousal maintenance should be.
• Determine the duration range. The Guidelines provide a range for how long spousal maintenance should last based on the length of the marriage.
• Determine the final award. In reviewing the expenditures and the ranges for the amount and duration of spousal maintenance, the Court will determine a number.

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Spousal Maintenance Process in Arizona

Requesting Spousal Maintenance

For spousal maintenance to be an issue, one of the spouses needs to request it in either the Petition or the Response to the Petition. If neither party requests it in one of those documents, it cannot be ordered.

Affidavit of Financial Information

The Affidavit of Financial Information (AFI) is a document that both parties need to fill out when spousal maintenance is at issue. It becomes a critical document in a spousal maintenance case where the focus is often on what the receiving spouse needs to meet their reasonable needs and whether the paying spouse can afford to pay spousal maintenance and meet their reasonable needs.

Discovery and Disclosure

The other components of spousal maintenance include what the potential receiving spouse will be receiving in property from the divorce, what their earning capacity is in the market, whether they’ve reduced their opportunities for the benefit of the other spouse. On the other side, the Court will be interested in whether the potential paying spouse can afford to pay spousal maintenance. Discovery and disclosure help the parties get the information they need to make a risk assessment and determine whether they want to settle or go to trial.

Vocational Evaluation

In situations where a spouse has not worked for a while or has just started working, there is often a debate over what that spouse’s earning potential might be. A vocational evaluation is a meeting with an expert who is trained in determining what someone’s earning capacity is in the market. It is commonly ordered in these situations.

Mediation

It is often advisable to try mediation once all the relevant information has been exchanged. The purpose of mediation is to see if the parties can reach an agreement that works for both people. Additionally, the parties can agree to make spousal maintenance non-modifiable; the Court on its own cannot order that.

Trial

If the parties cannot reach an agreement on spousal maintenance, the court must decide. The court can only decide after a trial. 

Legal separation is almost identical to a divorce in every way except one: You are still married at the end of it.

Otherwise, the process and issues are the same: The community property needs to be separated, what happens with the children need to be decided, and the court must rule on whether one party is entitled to child or spousal support from the other party. The only difference is you are still married at the end of the proceedings.

Some people think that just because they are living apart, they are legally separated. That is not a legal separation. You are still married, and still accumulating marital property in the eyes of the law. A legal separation can only happen through the Courts.

As for separating the parties financially, legal separation is the strongest option for people who don’t want to live under community property laws but want to remain married. The reason why legal separation is stronger in this regard than a postnuptial agreement is because a postnuptial agreement is more easily set aside or overturned.

Both parties must agree to a legal separation. If either party wants to convert the legal separation into a divorce, they may do so. If at a later date the parties want to divorce they can begin that process.

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Considerations for a Legal Separation

If you are considering legal separation, here are some questions to consider:

• Why is legal separation preferable for you over a divorce?
• What is it that you wish to accomplish with a legal separation?
• Will your spouse be agreeable to doing a legal separation instead of a divorce?
• Do you need to remain on your spouse’s benefits?
• What assets of your spouse’s will you lose if you choose to legally separate instead of continuing your marriage under the community property laws?

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Separation vs Divorce

The most common reasons why people choose to seek a legal separation over a divorce are:

1. To Stay on a Spouse’s Benefits

   Many employer benefits, including health insurance, are only available to an employee’s spouse and not to an ex-spouse. This is particularly true with health insurance. So legal separation is often used as a method to separate the parties while allowing one spouse to remain on the other’s spouse’s benefits. If this is your situation, you should speak with your employer’s human resources director to see how legal separation would affect spousal benefits.

2. To Avoid Liability

   Sometimes, a spouse begins to make reckless financial or personal decisions. Arizona is a community property state, so if your spouse gets sued, you are equally liable. But if you are legal separated, the community property laws, including those regarding liability, no longer apply.

3. To Separate Finances

   Some people believe spouses should share finances; others believe spouses are better off keeping their finances separate. Legally separating removes spouses from the community property laws of the state. You should also be aware that post-nuptial and pre-nuptial agreements can accomplish the same, but those documents are subject to challenge at the time of divorce.

4. For Religious/Moral Reasons

   Some people do not believe in divorce, and a legal separation is a way for them to split without ending their marriage.

5. For Emotional Reasons

   A legal separation is a smaller step to take than a divorce. A divorce has finality to it. While that is also true of legal separation when it comes to dividing up finances, the marriage remains intact. And it can be easier emotionally to say, “we’re separating” than it is to say, “we’re divorcing.”

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Legal Separation Process

A legal separation follows the same process of a divorce. There must be a Petition, Service, and a Response. If the two spouses come to an agreement, they can submit a Consent Decree to the Court for approval, just like a divorce.

Both parties must agree to a legal separation.

After a legal separation. If you decide after being legally separated to divorce, you can file for divorce by filing a Petition. It will need to be served. The focus will be strictly ending the marriage; however, if there are modifiable provisions (commonly, child custody, child support, and spousal maintenance) in the Legal Separation Decree, modification of those terms can be brought as part of the divorce action.

An annulment is a court order declaring that a marriage was never legally valid, effectively dissolving it from its inception. It is a “legal fiction,” meaning that although the marriage did occur in fact, the law treats it as though it never existed. An annulment may be granted when a marriage is either void (not legally permitted) or voidable (has a defect that makes it legally invalid). Despite this legal fiction, certain realities of the annulled marriage may continue to exist: the court may still divide community property acquired during the marriage, and under Hodges v. Hodges, if a recipient of spousal maintenance remarries, that right terminates upon remarriage and cannot be revived if the subsequent marriage is later annulled.

This process looks so easy on TV: You’ve been married a short while, realize you’ve made a mistake, get an annulment, and the next day, you’re no longer married.

Annulments don’t work like that in real life. There is so much misinformation surrounding annulments that the best way to explain is to dispel some of these myths:

Myth #1: If you have a marriage of short duration, you can get an annulment.

The truth: Annulments are only available when the marriage itself is
“void of voidable;” i.e., the marriage is defective. That means you have to have a reason for why the marriage was not valid in the first place.

Some common examples of grounds for an annulment are that one of the spouses was already married, one of the spouses was tricked into marrying the other spouse, one of the spouses lacked the mental capacity to marry, the parties did not intend to get married, one of the spouses was too young to marry, the spouses are first cousins under the age of 65, or one of the spouses refused to consummate the marriage.

Legally, the length of the marriage technically doesn’t matter, but realistically, it matters. Judges are more likely to annul a shorter marriage than a longer one. That means the longer you wait to start annulment proceedings, the less likely you are to be granted one.

Validity of marriage: If you have questions about whether you have a valid marriage, you should meet with an attorney. Briefly, here are a few principles regarding the validity of a marriage:

• A marriage that is valid where it took place is valid in Arizona unless recognizing the marriage violates public policy (e.g., if two first cousins got married in a state where it was legal, Arizona would not recognize that marriage because first cousins marrying is illegal in Arizona, with some exceptions).
• A marriage that was not valid where it took place may be recognized as valid in Arizona if the marriage would have been valid under Arizona law.
• If the person marrying the couple lacked the authority to do so, the marriage may still be valid if one party believed the officiant had the authority to perform the marriage.

Myth #2: If you get your marriage annulled, there is no community property to be divided.

The truth: Property acquired by either spouse during a marriage is community proper. The annulment does not change that.

In accordance with A.R.S. § 25-302(B), Court must divide the property in the marital community as part of the annulment.

That’s not such a big deal if you’re annulling a marriage of couple months or even a year, but if you’re annulling a marriage of five years or more, it can be complicated.

Myth #3: You can get an annulment even if you just moved to Arizona.

The truth: An annulment has the same requirements as a divorce: At least one party must live in Arizona for 90 days prior to filing.

How to Know if Something is Community Property or Sole and Separate Property

During a divorce, figuring out if something is community property or sole and separate property is typically pretty simple. However, some property can be hard to classify. The following questions can help determine if an asset is part of the marital community or owned solely by one spouse.

1. When was the property acquired?

This is generally the key question for every piece of property. A basic tenet of community property law is that property acquires its status as community or separate at the time of its acquisition. Lawson v. Ridgeway, 72 Ariz. 253 (1951). The law in this regard is simple:

• If it was acquired during the marriage, the presumption is that it is community property. See R.S. § 25-211(A).
• If it was acquired before the marriage or after the date a divorce petition was served on the responding party, the presumption is that it’s separate property. See R.S. § 25-213.

The “presumption” concept can introduce complexities into the analysis. This is a gray area because with only limited information, the analysis is not complete. Other factors might change whether the property is considered community or separate.

2. Was the property acquired by gift or inheritance?

If the property in question was gifted or inherited, then it is not community property, even if it was acquired during the marriage. Such property can become community property if it is not kept separate from the other community property.

(Technically, the law says “by gift, devise, or descent,” but the only difference between the “devise or descent” is whether the property received was inherited through a will or not, so to simplify, the more familiar term “inherit” was used.)

3. For real property (i.e., your house or other real estate), did both parties sign the contract? Did either party sign a disclaimer deed or a quitclaim deed?

Under A.R.S. § 25-214(C), either spouse may acquire, manage, control, or dispose of community property, except for certain transactions that require both spouses’ signatures to become community property. Most commonly, this occurs when a married couple finances a home in one spouse’s name alone. In that situation, the spouse who is not part of the mortgage may end up signing a disclaimer deed that forfeits their ownership interest in the house. But even though the house is owned by only one spouse, the other will still be entitled to some of the proceeds of the house through what is called a community lien. See Drahos Calculation.

The other, less common situations in A.R.S. § 25-214(C) that require both parties’ signatures to become community property include a guaranty, surety, or indemnity contract. For simplicity’s sake, think of a guarantor or surety as a co-signer. An agreement to indemnify is where a spouse promises to another person or entity: If you get sued, I will make you whole.

4. Was the sole and separate property kept separate from community property, or was it commingled?

Commingling occurs when separate property and community property are mixed together. When funds become commingled, there is a presumption that the whole account is community property. For example, let’s say a wife inherits $20,000 from her aunt. When she receives the money, it is her sole and separate property. But she then deposits the inheritance into a joint account where her and her husband’s paychecks are deposited. At this point, the property is commingled and presumed to be community property.

Commingling cannot happen with real property. As the Arizona Court of Appeals wrote, “You cannot mix Black Acre with White Acre and obtain Gray Acre.” Potthoff v. Potthoff, 128 Ariz. 557, 562 (App. 1981). Separate real property remains separate so long as the other spouse’s name is not added to the deed.

5. If commingled, can the property be separated?

The legal process of identifying separate property within commingled assets is called tracing. If the property can be traced, the property can remain separate. But when it becomes impossible to tell what part of the property is community and what part is separate, you cannot make a good-faith argument to trace portions of it.

Tracing can become impossible when there are hundreds or thousands of transactions to account for. Using the inheritance example from the previous question, after the wife deposits her $20,000 inheritance into their joint account, both she and her husband deposit their paychecks into that account, they pay their monthly bills from it, and they use it to pay for vacations, groceries, gas, etc. Between the time of the inheritance and the divorce, they may have hundreds, if not thousands, of transactions going in and out of that account. That makes it impossible to trace because you cannot identify what money went where. Since the inheritance was commingled, the entire account is considered community property.

In comparison, let’s say the wife deposited her $20,000 inheritance into a joint money market account with her husband. Then, they made three deposits of community funds totaling $6,000, and the husband made a withdrawal of $3,000. While there may be an argument over whether the husband was withdrawing the wife’s inherited funds or community funds, at the very least, we can trace out $17,000 of the wife’s inheritance as sole and separate property.

6. Is there a prenuptial or postnuptial agreement?

Prenuptial and postnuptial agreements can allow a married couple to decide whether something is community property or separate property. Arizona law allows spouses to opt out of the community property laws for part or all of their property through a prenuptial (before the marriage) or postnuptial agreement (during the marriage). As long as the Agreement itself is valid and not unconscionable, any property described in that Agreement will be divided in accordance with the Agreement.

During the divorce, couples can also decide how to classify their property with a Separation Agreement or Rule 69 Agreement.

A Property Settlement Agreement (PSA) in a divorce is a contract that divides a couple’s property, assets, and debts.

All couples getting a divorce must divide their property in accordance with A.R.S. § 25‑318 but using a Property Settlement Agreement (PSA) is not required. In divorces with limited community property, the parties often include the division of property within the Consent Decree itself. But in divorces with significant community property or if additional language to divide or protect assets is required, the Property Settlement Agreement is used to incorporate protective language to more clearly define the property division and the rights involved. PSAs give the parties (and their lawyers) an opportunity to detail the specifics of the property division; including the ability to more specifically identify the property being awarded, set deadlines for its division and/or sale, and add language that more fully protects the parties. The PSA includes schedules that assign specific assets and debts to each spouse.

A PSA contains four types of provisions:

1. Awards of Property. This determines which spouse gets which asset. The most common type of assets to be divided are homes, businesses, vehicles, bank accounts, pensions, IRA’s, 401(k)s, stocks, and jewelry.
2. Assignment of Debts. This determines which spouse will be responsible for paying which community debt.
3. Spousal Maintenance. If thre is an agreement regarding spousal maintenance, (including an agreement for no spousal maintenance), the terms of that agreement will be included.
4. Protective Language Provisions. These provisions are largely standard across PSAs, but they serve important legal purposes.

Some other things to be aware of with PSAs:

• The Agreement is usually a separate document from the Consent Decree, but it will, at a minimum, be referenced in the Decree and the division contained therein ordered by the Court. The significance of that court order will depend on whether the Agreement is merged with the Decree or is incorporated but not merged. If merged, it is a Court order that cannot be modified later without extraordinary circumstances. If it is not merged, it is a contract, enforceable and modifiable under contract principles. An enforcement may take the parties to civil court rather than family court.
• If the Property Settlement Agreement is challenged, the person challenging it must prove that the terms are unfair. The person challenging it will likely request a Sharp hearing.
• The PSA assigns the debts only between the two spouses; it does not change existing contracts or a creditor’s ability to seek payment from the spouse who is not assigned the debt. For example, if the divorce decree assigns a VISA debt to Husband, VISA can still come after Wife to collect that debt if Husband does not follow through on his responsibility to pay the debt. The protective language of the PSA will not stop VISA from doing this, but it will require Husband to repay Wife for anything VISA collects from her.