The Summary Consent Decree Process Compared to the Standard Arizona Divorce Process
The Summary Consent Decree is the nearest equivalent to an uncontested divorce process in Arizona. While not technically an uncontested divorce, for couples who have reached mutual agreement on the terms of their divorce, it offers a streamlined procedure, allowing the parties to file all required documents for divorce at the same time.
The Summary Consent Decree process is relatively new—the Legislature enacted A.R.S. § 25-314.01, the law permitting the Summary Consent Decree, in 2022. That same year, in response to the new law, the Arizona Supreme Court created a new family law rule, ARFLP Rule 45.1, to accommodate the new law.
Benefits of the Summary Consent Decree Process
The law makes the divorce process more convenient and a little bit quicker than the traditional paperwork route for amicable couples.
- The process is less contentious.
- You only need to file documents once.
- There is no requirement to “Serve” the other party.
- The fees are the same for both parties. (The traditional process costs more to file for divorce, than to respond.)
- There are no court hearings.
- The 60-Day “Cooling Off” Period starts on the Date of Filing, potentially making the process quicker.
- Saves money on legal fees.
Process Differences
The differences between the two processes are mostly procedural, as detailed in the following chart.
| Summary Consent Decree | Standard Divorce Process | |
|---|---|---|
| Must the parties reach agreements on all issues before filing? | Yes | No |
| What is the first filing? | Combined Petition and Response | Petition Only |
| Are the Petition and Response filed separately? | No. The Petition and Response must be in the same document. | Yes |
| Must service be waived? | Yes | No |
| Must the filing resolve all matters? | Yes | No |
| When does the 60-day cooling off period begin to run? | On the day of filing | On the date of service |
| Who pays filing fees? | Both parties split the combined Petition and Answer fee 50%, unless agreed upon between spouses. | The Petitioner pays the Petition fee; the Respondent pays the Answer fee. |
| Does the Preliminary Injunction apply? | Yes | Yes |
| When does the Preliminary Injunction go into effect? | Upon filing, it is in effect for both parties | Upon filing for the Petitioner. Upon service for the Respondent. |
| When can final documents be filed? | With the initial documents or anytime thereafter. | Once the 60-day waiting period is completed. |
| When can the Court sign the final documents? | Once the 60-day waiting period is completed | Once the final documents are filed. |
| Estimated time, start to finish, if all goes well? | Approximately 10 weeks | Approximately 12 weeks |
| Minimum number of filings? | One (if final documents are filed with the Petition-Response) | Three (Petition, Acceptance of Service, Final Documents including Decree) |
Potential Issues with the Summary Consent Decree Process
What is most unique and potentially concerning in the Summary Consent Decree process is a party’s ability to withdraw from the agreement before the agreement is “entered.” The Summary Consent Decree process begins when it is signed by the judge and filed by the clerk.
There is an interesting discrepancy between the statute and the rule that lawmakers need to work out. The statute uses the word “shall” when stating the Notice of Intent to Withdraw “shall” be considered as a withdrawal from the agreement. This suggests that a withdrawal is automatic.
But the rule says, “If the court allows a party to withdraw.” In lawyer’s language, that means it’s discretionary—i.e., the judge can choose to let someone withdraw or not.
That is a big difference, and one that has not yet been resolved, so it remains an open question.
Which interpretation prevails turns on the question of whether the statute is procedural or substantive. Generally speaking, because of the Arizona Constitution vests the Arizona Supreme Court with exclusive authority over procedural rulemaking when a procedural statute conflicts with a rule, the rule wins out. Duff v. Lee, 250 Ariz. 135, 138, ¶ 12 (2020). “When a rule and statute conflict, the rule will govern if the matter concerns a procedural right, and the statute will govern if the matter concerns a substantive right.” Patterson v. Mahoney, 219 Ariz. 453, 456, ¶ 11 (App. 2008).
However, there may yet be a reason why the statute wins out. Arizona courts have long held that divorces are statutory actions, and the Courts only have the authority imparted to them by statute. Van Ness v. Superior Court of State in & for Maricopa Cnty., 69 Ariz. 362, 365 (1950).
Every divorce is unique. If you’re unsure which approach is best for you, we recommend you consult with an experienced family law attorney.
Related Pages and Posts
Divorce Process in Arizona – State 48 Law
Glossary and Family Law Legal Terms in Arizona
Top 5 Ways to Save Money During Your Divorce When You Have an Attorney – State 48 Law Blog
