Getting Started
Before you jump into this article on how to file for divorce, let’s cover some basic terminology and the layout of the course.
Disclaimer:
As a reminder, this article does not contain legal advice and the attorneys that helped put it together do not represent you. This article is intended to provide legal information only. The laws and rules change often so it will be imperative that you confirm the current applicable laws and rules should you choose to represent yourself. In addition, the decision on when to file, where to file, and what to specifically include in your divorce documents can all have material legal ramifications that should be discussed with a divorce lawyer before actually filing.
Quick Educational Primer
A quick lesson on what the law “is.”
First there are statutes which are called Arizona Revised Statutes. These will be referred to in the course as statutes, or by their acronym: A.R.S. Statutes are laws created by the Arizona state legislature. There is a link down in the materials below so you can access the Arizona website to look up any of the statutes. For divorce cases, most applicable statues are in title 25. There will be additional links to the specific statutes referenced in other sections throughout the course.
Second we have “case law” which are cases known as opinions (not memorandum decisions) from the Arizona Court of Appeals or Arizona Supreme Court. These cases help explain how the statutes apply in certain circumstances, which is often needed because the statutes are not written with sufficient detail to address ALL of the various circumstances that can come up in every case. Links to the Courts’ opinions are included below for the Arizona Supreme Court, Division One of the Court of Appeals, and Division Two of the Court of Appeals.
Third, we also have court rules that are specific to family law cases such as divorce cases. The rules are called the Arizona Rules of Family Law Procedure (ARFLP). A link for the Rules is also provided below.
For this course we won’t go too deep into the law or rules, but it’s helpful to know this terminology ahead of time.
Lastly, in some sections there will be a video that summarizes the main points along with a text portion that more fully addresses the course material. Links for resources and other information are also provided at the bottom of each section. This course is laid out in a chronological order so it is important that you take this course in sequence.
Resources
Arizona Revised Statutes – Family Law
Court of Appeals Division One Case Law
Can I File In Arizona?
Before getting to where to file or what to file, we first need to cover whether you can file for divorce in Arizona at all–meaning whether Arizona courts will have jurisdiction over your divorce.
Determining whether Arizona courts will have jurisdiction is a three-step inquiry. For most people who have lived in Arizona for a long time, the inquiry will be straightforward and simple. However, before getting too far and possibly wasting some money on filing fees, it is very important to first make sure that you can file for divorce in Arizona.
Arizona Domicile
First, have your or your spouse been domiciled in Arizona for at least 90 days? A.R.S. 25-312 requires that one or both parties to the divorce be domiciled (main residence) in Arizona for at least 90 days prior to filing the petition for divorce. If one of you is in the military, then you can still file if you’ve been stationed in Arizona for at least 90 days.
Side Note: If your spouse doesn’t live in Arizona it is possible that there will be an issue of personal jurisdiction over your spouse. However, if you have lived in Arizona for more than 90 days then chances are your spouse has enough “contacts” with Arizona for the courts to have personal jurisdiction over him/her for the divorce. In this sense, a contact with Arizona could be coming to visit in Arizona, helping you move to Arizona, communications with you while you’re in Arizona about your children, marital property, etc.
Home State for Your Children
Second, is Arizona the home state of your child(ren)? For Arizona courts to have jurisdiction over your children and enter legal decision-making and parenting time orders, Arizona must be the children’s “home state” or otherwise have jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA, A.R.S. 25-1001 and on). This step is a little more complicated and has more inquiries to determine jurisdiction over your child(ren). “Home state” is defined as the state where your children have lived for 6 consecutive months with one or more parents, or a person acting as a parent. Simply put, if your children have lived in Arizona with a parent for 6 consecutive months or since birth before filing for divorce, or within 6 months before filing (meaning the children haven’t lived in another state for 6 consecutive months yet), then Arizona will have jurisdiction.
Even if another state could technically have jurisdiction based on being the “home state” it is still possible for Arizona courts to exercise jurisdiction if the other state declines jurisdiction, or the other state and Arizona decide it is best to proceed in Arizona. This is definitely the most complicated step in the filing process. For most people, this will be an easy inquiry. But, if you’re new to Arizona, or have moved around a lot in the last year or so, I suggest you read the UCCJEA statute to make sure you can file in Arizona. A link to the statute is below: A.R.S. 25-1001-1040.
Covenant or Non-Covenant Marriage
Third, do you have a covenant marriage? If no, then you can file a divorce simply by saying your marriage is irretrievably broken. If you have a covenant marriage, then you need to meet some specific requirements first. For most you, you can answer no and move on because a covenant marriage in Arizona is incredibly rare. If you have one, your marriage certificate will say covenant marriage. A “covenant marriage” in the legal sense is a very specific type of marriage.
The term “covenant marriage” in this sense does NOT refer to any religious aspect of marriage. If you happen to be one of the rare few that has a covenant marriage, either both you and your spouse have to agree to get divorced, OR one of the other requirements in A.R.S. 25-903 has to be met (which could be living apart for 2 years, adultery by your spouse, felony conviction of your spouse, or drug/alcohol abuse by your spouse). A link to A.R.S. 25-903 is provided below so the rare few with covenant marriages can review all of the possible conditions that would allow filing for divorce.
Resources:
A.R.S. 25-312 90-day requirement
A.R.S. 25-1001 et seq. All UCCJEA statutes
A.R.S. 25-1031 Child Custody Jurisdiction
A.R.S. 25-903 Covenant Marriage
Where to File Your Divorce
All divorce cases are filed in the Superior Court pursuant to A.R.S. 25-311. In Arizona, the Superior Courts are divided up by county. So, you will file in the Superior Court in your county, or technically, in the County where your spouse resides if different from your own for some reason (pursuant to A.R.S. 12-401).
Here’s a link to each Superior Court website so you can obtain the address and contact information for your County’s Superior Court.
Superior Court List:
Resources:
A.R.S. 25-311 Divorce Cases in Superior Court
A.R.S. 12-401 File where “defendant” resides
What to File
The main document you will file to start your divorce is the Petition for Dissolution of Marriage. In the next section we’ll cover what needs to go in the Petition, but for now, you just need to know that you need to file the Petition and that it is the most substantive document you need to file to get started.
Affidavit Regarding Minor Children
If you have a minor child or children in common with your spouse, you will also need to file an affidavit regarding your minor child(ren). By Arizona law, you need to verify certain information about your child(ren), most importantly, where they have resided for the last six months (remember this from the Jurisdiction section?). Under A.R.S. 25-1031 through 1038, the Court has to decide whether it will have jurisdiction over your children.
In essence, if your children have lived in Arizona for more than six months consecutively and still live in Arizona at the time you file, then Arizona will/should have jurisdiction over them to decide “custody” issues. Some people will include the contents of the affidavit in their Petition. Others will file a separate affidavit. Either way is fine so long as the information about your child(ren) is presented to the Court. If you don’t have a minor child in common with your spouse then you don’t need to file/include this affidavit.
Summons
Next, you’ll need to include a Summons. A Summons is standardized and basically informs the other party (your spouse) that a law suit has been filed (the divorce) and that there is a time frame for when a response needs to be filed to your Petition. The contents of the Summons is provided in Rule 40 (Arizona Rules of Family Law Procedure).
Preliminary Injunction
The next document you’ll need to file is the Preliminary Injunction. This document is standardized and the language required is established by Arizona law (statute). You can find the language required here in A.R.S. 25-315(A). This document is technically the first court order to be issued once you file for divorce. Be sure to read it carefully as its terms will apply to you once you file.
Notices about Creditors and Health Insurance
The next two forms you’ll need to file are Notices. One is regarding health insurance and the other is regarding creditors. Both of these are standardized documents as well. You can find the terms required for the Notice regarding creditors here in A.R.S. 25-318(H). This Notice has useful information about how the divorce will and will not impact creditors for any debts you have, and some options to find out more about your debts. The Notice regarding health insurance provides useful information regarding possible options for ongoing health insurance after the divorce, and health insurance for any minor children (sample from Maricopa County Superior Court).
Required Parenting Class
Lastly, getting back to children, if you have a minor child or children, then you’ll also need to file an Order regarding the court-ordered parenting class. This too is a fairly standardized document setting forth the requirement to take the required parenting class. By statute (A.R.S. 25-352), both parents are required to take a parenting class for the divorce to be granted. Be sure you attend a court-approved parenting class after you file.
Resources:
The Arizona Supreme Court provides some free forms you can use or use as templates for your own divorce filing. You can get the forms here:
Not all counties provide free court forms, but here are links to free forms for some of the counties that do provide them.
Maricopa County Superior Court Forms
Coconino County Superior Court Forms
Mohave County Superior Court Forms
Pima County Superior Court Forms
Pinal County Superior Court Forms
Yavapai County Superior Court Forms
The Courts’ forms above also include information and guidance on how to fill out the documents referenced in this section. The Arizona Supreme Court’s website includes a good set of instructions on how to fill out your Petition and more info about the accompanying documents discussed above–which you can find here.
What Goes in the Petition?
Deciding what to put in the Petition for Dissolution is a legal decision and so this article can only provide information on what has to be in the Petition based on the law and considerations for whether you should put in more or less after that. In other words, we cannot tell you what should be in your Petition, but we’ll cover what has to be in there, and some things for you to think about so you can decide what else to put in your Petition.
Statutory Requirements
First, let’s cover what has to be in the Petition. A.R.S. 25-314 covers what has to be in the Petition.
- The Petition needs to be “verified” meaning you sign and allege that the contents of the Petition are true.
- You need to allege that your marriage is “irretrievably broken” which basically means that counseling or other services are not going to be able to save your marriage.
- If you have a covenant marriage, then you need to allege what grounds enable you to still file for a divorce with a covenant marriage under A.R.S. 25-903.
- The birth date, occupation, and address of each party (meaning you and your spouse) and how long you’ve been domiciled in Arizona.
- The date of your marriage, where it was performed (city and state), and whether you have a covenant marriage.
- The name, birth date and address for each living minor child in common with your spouse.
- Whether you or your spouse is pregnant.
- The details of any agreements, if any, between you and your spouse regarding child support, spousal maintenance, legal decision-making (aka custody) and parenting time.
- The relief sought, which is known as the “prayer” section where you set forth the relief/orders you want the court to enter.
Now, it’s not required, but some people will include with the Petition the information contained in the Affidavit regarding Minor Children. As a reminder, this Affidavit is required if you and your spouse have minor children in common. The Affidavit can be filed separately, or its contents can be included with the Petition. If you are going to use the Court’s free forms, you will most likely file the Affidavit separately because the Courts’ forms have the Affidavit separate. If you do include the Affidavit contents in your Petition, be sure to have your signature of the Petition notarized as you would with the Affidavit.
More or Less?
Next, let’s cover the other areas you’ll need to address in the Petition and decide how much, or how little you want to say about them in the Petition. If you look at the sample form from Maricopa County Superior Court here, you’ll get an idea of what I’m talking about. In that form, there are spaces included for you to be very specific regarding the proposed division of property and debts, along with child support and spousal maintenance, among other things.
Property and debt division:
- In most free court forms, there are spaces for you to include specific items of property and debts, including cars, household items, accounts, real property, etc. If you’ve seen a petition filed by an attorney, you’ll see that there is often no specific proposed division included in the petition. Rather, in many cases the petition will simply allege that the community property should be divided equitably and separate property be allocated to the appropriate party.
- The reason attorneys do this is because there is usually not enough information available (at least to the attorney) at the beginning of a divorce to determine what is community property and what might be a spouse’s separate property. Whether you include property and debts specifically in your petition, or allege an equitable division in general is up to you. If there is something very specific that you want, you might want to include that in the Petition.
- Similarly, if you’re comfortable with everything you and your spouse own, and are confident in knowing the nature (community vs. separate) of that property, then being specific might not be a problem either. If you’re uncertain about all the property and debts you and your spouse have, and you plan on doing some discovery during the divorce, being more general can leave some options open to you.
- The property and debt division will ultimately be decided later by the Court (as well as the other issues in your divorce) and will be determined by the final divorce Decree, not necessarily what you put in the Petition. This is one of the areas where specific legal advice from an attorney would be helpful and so a consultation before you file could certainly help.
Child support:
- If you and your spouse have a minor child, or children in common, then child support will be an issue in your divorce, even if you plan on sharing equal time. The Court will ultimately have to calculate child support per the Arizona Child Support Guidelines (per A.R.S. 25-320). Most petitions will generically state that child support should be ordered pursuant to the Arizona Child Support Guidelines. It isn’t necessary to include a specific amount in the Petition, but you can if you want and have calculated child support already.
Spousal maintenance:
- You may or may not be asking for spousal maintenance in your Petition. Deciding whether you would qualify and be entitled to spousal maintenance is a legal decision. Whatever you decide, remember this: if it’s not included in the Petition, then the Court won’t grant you that relief. So, if you want to ask the Court for spousal maintenance from your spouse, you’ll need to include it in your Petition.
- That being said, you don’t necessarily need to include the amount and duration of spousal maintenance you want. Many petitions will simply allege that you qualify and are entitled to it for an amount and duration to be determined by the Court. If you think your spouse will default (meaning he/she will not respond to the divorce after being served), then there can be some benefit to being more specific on spousal maintenance (and property/debt division too) in your Petition.
Legal Decision-making and Parenting Time:
- If you and your spouse have a minor child, or children, in common, then legal decision-making and parenting time will also be at issue along with child support. Under statute (A.R.S. 25-403.01) the Court can grant joint legal decision-making to you and your spouse, or sole legal decision-making to one of you. You will need to decide which one you ask for.
- Similarly, the Court will ultimately enter a parenting schedule. A complete parenting schedule doesn’t have to be included in or with a Petition; however, it can be and several of the various court’s forms include a proposed parenting schedule to include with your Petition. Whether you include one or not is up to you, but if you plan on including one, it would be a good idea to review the statute regarding parenting plans first: A.R.S. 25-403.02. If you do include a parenting plan, be sure you meet the required elements of a parenting plan as set forth in 25-403.02(C). You can click the prior link to review those required elements. You can also review a sample parenting plan from Maricopa County Superior Court here.
Additional Issues:
- Domestic violence: You may allege whether domestic violence has occurred during the marriage, and whether it has involved the children. This is a factor the Court must consider when determining legal decision-making and parenting time.
- Drug/Alcohol convictions: Similarly, if either spouse has been convicted of a drug or alcohol related crime, the Court will have to also consider that conviction, which may impact the Court’s ruling on legal decision-making and parenting time.
- Name change: If you changed your name after you got married, you can ask the Court to change it back upon divorce.
Wrapping up the Petition
In summary, A.R.S. 25-314 provides what has to be in the Petition. After that, you’ll need to include your position on all of the issues that will be at issue in your divorce, such as custody issues (legal decision-making and parenting time), child support, property and debt division, and spousal maintenance. Whether you assert a position generally or more specifically on each of the issues in your Petition is up to you, and may depend on your knowledge and understanding of those issues when you file. Reviewing some of the blank petitions available from the courts can help you understand more what can and maybe should be included and what the end product can look like before you file.
Serving Divorce Papers
After you file your divorce papers, you will need to have them served on your spouse. This has to be carried out by a private process server (or a sheriff’s deputy) per Rule 40. It shouldn’t be difficult to find a decent process server. A simple search on the internet should result in at least a few options in your area. Generally the cost will vary around $50 to $100, although it will cost on the higher end (or even a little more) if the process server has to make multiple attempts.
Once the process server actually serves your spouse, the process server will (should) complete and file a certificate of service with the Court. Of note, the date your spouse is served is the actual date of service, not the date the process server files his/her certificate (which is usually a few days after).
Accepting Service as an Option
If your spouse is aware that you are filing and is agreeable to accept service, you can avoid a bit of headache and save a few bucks. Rather than having your spouse served, he/she can accept service by signing a document (Acceptance of Service) attesting that he/she received all of the divorce documents. A couple of points here.
The Acceptance of Service MUST be signed and notarized, or done in front of the clerk of court. Also, your spouse is not agreeing to your divorce petition by accepting service, he/she is simply acknowledging receipt of the documents. Lastly, the Acceptance of Service should specify each document individually that is accepted (e.g., Petition for Dissolution of Marriage, Summons, etc.).
When to File for Divorce?
Deciding when to file is a legal (and personal) decision that cannot be recommended here as that would require legal advice. However, we can discuss some things to consider.
Termination of the Marital Community
As a reminder, after you file your divorce papers you will need to have them served on your spouse (or have your spouse accept service). The date your spouse is served or accepts service is legally significant. While married, you and your spouse accumulate community property and debts, such as income from working. In fact, by law everything you and your spouse acquire is presumptively community property.
This changes however once you file for divorce and serve your spouse. On the date of service, your “marital community” (legal term) terminates and, assuming you follow through and actually finalize the divorce, all the property/debt you acquire after the date of service will be your separate property/debt (and the same goes for your spouse). A.R.S. 25-211.
So for example, if you are employed, then all of your wages earned after you file AND serve your spouse with the divorce papers will be your separate property. Likewise, if you charge up debts on a credit card after the date of service, those charges will presumptively be your separate debts.
Waiting to be Divorced
Another consideration is how fast you want to get divorced. After you file, there is a “cooling off” period that you must wait before you get divorced. Under A.R.S. 25-329, the Court cannot enter your divorce until at least 60 days AFTER the date of service. For most people, this time period is inconsequential as most divorces last for several months or more. However, for people that can agree on all divorce terms and/or want to get divorced right away, this waiting period may impact the decision on when to file.
Lastly, there are other considerations to think about when deciding the right time to file. For instance, it can be important to feel ready emotionally before filing. It can also be important to some people to file once all of the children have emancipated or left the house. There is rarely a completely right or wrong time to file. You’ll need to consider the legal and practical ramifications of filing, and then decide for yourself.
Resources:
A.R.S. 25-329 cooling off period
A.R.S. 25-211 community property law
Divorce FAQ for questions you’ll have after filing
Stay In Touch