Divorce, Annulment, Dissolution and Legal Separation

Sixty percent of first marriages now end in divorce, according to published statistics. For second marriages, the failure rate jumps to 70%. It is little wonder, then, that Arizona courts have seen a sharp increase in the number of family law cases in recent years.

When a marriage fails, either spouse may petition the superior court to obtain a decree of annulment, a decree of dis­solution, or a decree of legal separation. A marriage may be termi­nated either by a decree of annulment or a decree of dissolution (commonly called a “divorce decree”).

Dissolution proceedings are much more common than annulment pro­ceedings, due to the difficulty in obtaining an annulment (dis­cussed below). A decree of legal separation does not terminate the marriage, but it does terminate the spouses’ community property rights and obligations.

Three Types of Proceedings

Annulment

To grant an annulment, the court must find an impediment exists that renders the marriage “null and void.” Arizona statutes give little guidance on this require­ment, but case law indicates that lack of capacity and fraudu­lent intent each constitute sufficient grounds for annulment. In one case, an annulment was granted where a spouse suffered from chronic alcohol abuse. In another case, an annulment was granted where a spouse suffered from manic-depressive disor­der. The courts found in those cases that the conditions at issue interfered with the legal ability of the parties to enter into the marital relationship. In that annulment renders the marriage null and void, the marriage is deemed never to have validly existed.

Dissolution

A proceeding to dissolve a marriage, by contrast to a proceeding for annulment, presumes the exist­ence of a valid marriage. At the conclusion of a dissolution proceeding, the once valid marriage is terminated and the husband and wife are “divorced.”

Legal separation

An action for legal separation requires the same findings and results in the same orders as an action for dissolution of marriage. The difference, however, is that the marriage is not terminated. This option is typically used by persons not wanting to terminate their marriage for legal, moral or religious reasons, but still desirous of terminating their marital community. The termination of the marital com­munity terminates the parties’ community property rights and obligations.

Starting the Proceeding

In order for the court to acquire jurisdiction over a mar­riage, at least one spouse must have been a resident of Arizona for 90 days immediately prior to the filing of the action. A pro­ceeding to terminate a marriage or for legal separation must be brought in the superior court in the county in which the couple resides. If one spouse resides outside the state, the action must be brought in the county in which the filing party resides.

Except in cases involving covenant marriages, it is not appropriate to allege the fault of a party as a reason to terminate the marriage, only that the marriage is “irretrievably broken.” If a husband and wife have entered into a covenant marriage, the court cannot enter a decree of dissolution or a decree of legal separation unless it finds the existence of one of the conditions set forth in the Covenant Marriage Act (such as adultery, imprisonment for a felony, abandonment or sexual abuse).

Cooling-off Period

In any action to terminate a marriage or for legal separa­tion, the parties must wait at least 60 days from when service of process is completed until they can obtain the final decree. This is the statutory “cooling-off period,” and is intended by the legislature to prevent a married couple from making a decision to terminate their union in the heat of marital discord.

In contested cases—where the parties are disputing property division, support, custody or visitation—the time necessary to conclude the case will be much longer than the cooling-off period. The time it takes to conclude a contested family law case will depend on the pace at which the case is prosecuted and, ultimately, the trial court’s calendar.

Contested Cases

The judge to whom the case is assigned decides all con­tested issues in a family law case. There is no right to a jury trial in Family Court.

In any of these proceedings, the court has broad power to divide and distribute property. This includes the power to impose a lien upon the separate property of a party to secure payment of child support, spousal maintenance, or any interest of the other spouse in the marital property.

Arizona law requires the Family Court judge to divide community property “equitably” between the parties. This does not necessarily mean that the division will be equal, however. Nor does the division have to be “in kind”—one spouse can be awarded certain assets and the other spouse awarded different assets. The division, nonetheless, must be a substantially equal division in the absence of a compelling reason to the contrary.

Illustration: The parties in a dissolution action own a house having a net equity value of $300,000, and a business having substantially the same value. The Family Court judge may award the house to the wife and award the business to the husband, or visa versa. This would be a substantially equal division of the assets in question, but would not be a division in kind.

Waste (Wrongful Dissipation)

Wrongful dissipation (waste) or destruction of community property by one spouse may be a reason for an unequal divi­sion, as a means of ensuring equitable treatment of the innocent spouse. Accordingly, if a spouse hides, conceals or destroys property belonging to the marital community, that spouse can expect to be awarded less than half of the remain­ing assets when the court divides the parties’ property.

Ten Common Misconceptions About Divorce

The spouse who files for divorce first has an advantage.
No. The spouse who files the divorce petition is known as the “petitioner.” The other spouse is the “respondent.” The petitioner has no substantive advantage over the respondent in the divorce proceedings.

If my spouse has an affair, I will be able to use evidence of the affair to get a better settlement in my divorce case.
No. Ari­zona is a no-fault state. This means that evidence of marital misconduct, except to establish grounds for dissolution in a covenant marriage or to show how the conduct may affect the chil­dren for custody purposes, is irrelevant in a divorce case.

If I voluntarily leave the family home while the divorce is pending, I will lose some property or custody rights.
No. It is often better for one spouse to set up a separate residence while the divorce is pending. That spouse does not lose any of his or her legal rights by doing so.

If I get an order of protection, I can prevent my spouse from seeing the children.
No. An order of protection does not cover custody or visitation rights. Only the judge in the divorce case can award custody and visitation.

The judge will prefer the mother over the father in awarding child custody.
No. The judge is not allowed to consider a parent’s gender when making child custody decisions. The test for child custody is always: what is in the best interests of the children?

If I am awarded custody, the judge will let me live in the family home with the children until they finish high school.
Not usually. The judge may order that the family home be sold and the pro­ceeds divided between the parties. It is often unfair to permit one spouse to live in the home for an extended period of time after the divorce, especially when the other spouse remains obligated on the mortgage.

If we are awarded joint custody, the children will spend equal time with each of us.
Not necessarily. Joint custody does not necessarily mean joint physi­cal custody. It is, however, the public policy of Arizona that absent evidence to the contrary, it is in a child’s best interest to have substantial, frequent, meaningful and continuing parenting time with both parents.

If we are awarded joint custody, neither of us will be required to pay child support to the other.
No. The court will order the payment of child support in joint custody cases, despite the fact that each par­ent has legal custody of the children. However, because one of the factors used to determine the amount of child support is the actual time spent by each parent with the children, the amount of child support tends to be less in a joint custody case.

Alimony (spousal maintenance) is awarded to the wife in most divorce cases.
No. Spousal mainte­nance is not awarded in most divorce cases, prima­rily because each spouse typically is able to support himself or herself without it. Moreover, spousal maintenance can be awarded to either the husband or the wife.

If an asset is titled in my name, such as a checking account, it will be awarded to me in the divorce.
Not necessarily. The court will look to see how an asset was acquired to determine whether it is community or separate property. The way in which an account is titled is irrelevant for purposes of this determina­tion. If an asset is acquired during the marriage, except by inheritance or gift, it will generally be deemed community property.