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Legalities of Separation: What You Need to Know Before Separating

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Going through a divorce can be one of the most stressful and difficult things a person will ever experience. It is not something that anyone plans for or expects to happen. However, researchers have found that typically marriages have about a 50% chance of divorce. Not only is this process extremely difficult because of the financial, emotional, and familial elements at play, it is extremely stressful because it is a step into the unknown. For most people getting a divorce, this is something they have never been through before. What is the first step to take when you have arrived at the conclusion that it is time to go forward? What are the legal grounds for separation? Today, we answer these questions and more as we explore the legalities of divorce.

Almost always, it is advisable to talk to a lawyer before proceeding with any step in the divorce process. Every case is unique because of the situation, assets, and relationships involved. For that reason, it is to receive specific, individualized advice regarding your situation.

Legalities of Divorce- Filing A Petition

The first step in beginning a formalized divorce process is filing a divorce petition. Typically, this petition is called a “Petition for the Dissolution of Marriage.”  The exact parameters of this petition will depend on where you live. The filing fee is paid directly to the Clerk of the Court.  In Maricopa County the filing fee is $341 for the initial petition and $270 for the response. 

If you are unable to afford the filing fee and are able to show financial hardship, you can apply to obtain a fee waiver from the court.

Once you have filed a petition for divorce, it is necessary to give notice to your spouse. You can request that your spouse sign a waiver or you can have them served. If you opt to have them served, most attorneys use private process servers or a sheriff’s department. The cost of such a service ranges between $40-$100 depending on the area. In the case of waivers, there are two options. The first option is a waiver of service. In this instance, your spouse acknowledges that they are aware of the lawsuit while waiving the requirement that they receive formal notice. In the second instance, your spouse can choose to waive the requirement of initial notice as well as the of future notice for any hearings. Both options will save you some money in the divorce process, with the second option saving you significant time in the long run.

Legalities of Divorce- Grounds for Divorce

As of 2010, all 50 states allow no-fault divorces. These days, no-fault divorces are the most common form of divorce. However, this was not always the case. Before the institution of no-fault divorces, it was necessary to show that one party was at fault for the breakdown of the marriage.

Legalities of Divorce- Temporary Orders

In many divorces, there are pressing issues that need to be addressed before the divorce is finalized. Examples of such issues may include spousal support, child custody, or child visitation. These issues can be addressed through temporary orders. There are no additional requirements for establishing temporary orders after filing for a dissolution of marriage or divorce.

Primary Divorce Issues

Assets, debt, personal property, and child custody are among the primary issues which are addressed during the divorce proceedings.

Arizona is a community property state.  This means that property and debts acquired during the marriage are deemed to be community property.  The statute that talks about community property is A.R.S. §25-211.  Most often, marital debts and property will be divided equally by the court unless there are exceptional circumstances, like waste of marital assets on a third party.  This is typically when someone alleges that an affair partner has, along with one spouse, “wasted” marital assets.

A.R.S. §25-211 also says that gifts and inheritances are not community property.  Property is typically divided based on the preferences of the couple.  However, it is common that people will argue over property they ultimately don’t want – only because tensions and emotions are high.

Another major divorce issue is children:  Children are an indivisible, high-stakes asset in a divorce, and they require ongoing cooperation.  Arizona largely tends to lean toward equal parenting time where possible and feasible.  However, 50/50 isn’t the default in every single case.  The Arizona statute concerning parenting plans at A.R.S. §25-403.02 says that subject to certain factors, parents should be awarded “maximum” parenting time.  In a contested custody case, a court has to analyze the “best interest factors” at A.R.S. §25-403. 

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