Under Arizona law, the marital community (i.e., the legal thing that allows each spouse to have an interest in the other spouse’s earnings and property accumulated during the marriage), starts on the date of marriage and ends on the date of service of the Petition for Dissolution of marriage. In Arizona, divorce litigation starts when one party in a marriage files a Petition for Dissolution and serves it on the other party.
After the dissolution petition has been served, the other side should file a Response. The parties can agree that no Response needs to be filed; however, they should also agree on deadlines for accomplishing disclosure and discovery.
At the beginning of the dissolution case it is appropriate to also file a “Motion for Temporary Orders.” It is the pleading used to tell the court that the parties require orders concerning the temporary support of the parties and their children, payment of community bills, who gets to stay in the house and who has to move out, and other similar issues. In some cases it makes sense to file the Motion for Temporary Orders at the same time as filing the Petition for Divorce, even though they are two separate documents. The Petition for Divorce tells the court that you need a divorce, and the Motion for Temporary Orders tells the court that you need help resolving some issues immediately.
"Disclosure" is required under the Arizona Rules of Family Law Procedure, and each party has an affirmative obligation to (a) explain their positions on contested issues and (b) disclose to the other side the documentation and other evidence they have in support of their positions.
“Discovery” is the term used to describe the process of gathering information about contested issues. Discovery can take several forms. It can be accomplished:
- in writing, by posing questions known as “interrogatories,”
- through the use of subpoenas and requests for information, and
- through the use of “depositions.”
In a deposition, both sides to the dispute and potential witnesses, if any, meet to allow the lawyers to ask questions that the parties and witnesses answer as sworn testimony on the record. The record is created by a court reporter, who is present for the specific purpose of taking down the questions asked of the witness and the witness’s answers to the questions.
Typical issues in divorce cases are:
- identification and distribution of community property;
- valuation of businesses, real estate and other assets;
- spousal maintenance;
- identification and confirmation of sole and separate property;
- child custody (now known as “legal decision making authority”) and parenting time;
- child support; and
- awards of attorney’s fees.
Once discovery and disclosure have been completed (i.e., all of the available evidence has been provided to each side), then the parties enter into negotiations and/or get ready for trial.
Within approximately 90 days from the date the Petition for Dissolution is filed, the court will hold a “Resolution Management Conference.” The purpose of that conference is to force the parties to identify the issues in dispute and make agreements on some of the issues, if they can, and set scheduling deadlines to help the parties try to resolve the other issues.
Since the only result that can be forced is a trial, it makes sense to get ready for trial while, at the same time, conducting negotiations. You cannot force someone to agree to a negotiated settlement; however, you can force a case to trial and get a judge to make a ruling. In most cases, it is better for the parties to try to make agreements between themselves concerning their children and their property. However, sometimes the parties simply cannot agree, and the case must go to trial.
In cases where the parties are able to agree on all of the issues without court involvement, the court will accept a “Consent Decree” prepared and filed to finalize the parties' agreements. The Consent Decree is the final order dissolving the marriage. It is written and submitted to the court without the parties having to appear in court. The Consent Decree is signed by both parties, so that the judge will know that the Consent Decree is the parties’ agreement. The judge almost always signs the Consent Decree without any additional action in court. Once a Consent Decree is signed, it is returned to the parties, and the divorce is final on the date the judge signs the Consent Decree. It is possible to obtain a divorce by Consent Decree in as little as 64 days from the date that the Respondent is served; however that does not generally happen. Resolution of most cases takes anywhere from four to six months, while some others take as long as several years.
If the parties cannot settle the issues between them, then the case must go to trial so the judge can decide and make orders on unsettled issues. Trials take place in court, and consist of the presentation of testimony, evidence, and argument on the applicable law. After the trial has been concluded, the judge has 60 days, by law, within which to make his or her decision on the contested issues tried to the court.