Uncontested Divorce

Providing Uncontested Divorce in Scottsdale and Phoenix, AZ

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Uncontested Divorce

What is an uncontested divorce?

An uncontested divorce is a procedure available in some states where spouses who agree on the terms of the divorce can file together. Arizona does not have the uncontested divorce procedure. That does not mean, though, that divorces have to be contentious. In fact, many couples in Arizona file after first reaching agreements on all issues in the divorce.

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Four Steps in Reaching an Uncontested Divorce

In a divorce with children, the parties must address five issues: the division of property, spousal maintenance (a.k.a. alimony), legal decision-making, parenting time, and child support (In most states, “legal decision-making and parenting time” are called custody). In a divorce without children, the parties must only address division of property and spousal maintenance.

 While some people choose to reach agreements without ever speaking with someone who is licensed to practice law, we recommend mediating instead. In our experience, many individuals learn of issues they had not considered before in mediation. We have also seen many self-represented fail to include required information in their Decrees that cause them to be rejected by the Courts or fail to divide something that should be divided. We have seen other parties not know the procedure to divide more complex assets, like retirement accounts.   For these reasons, we recommend the parties mediate to reach full agreements.

Parties can mediate before or after starting the divorce process.

After agreements are reached, the best practice is to write those agreements into a document that both parties sign. In mediation, those agreements are compiled into the Memorandum of Understanding that both parties sign before the mediation concludes. These agreements are binding on each party and are likely to be upheld by a Court should one party try to back out of the agreement.

The Petition for Dissolution is the document that must be filed with the Court to start the divorce. The Court also requires an additional 5-7 documents be filed along with the Petition (the number varies, depending on whether the parties have minor children in common). After the documents are filed, they must be served on the other party. When the parties have already reached agreements, service can be accomplished by having the “responding” party sign an Acceptance of Service.

The next step is for the parties to put their agreements into a Consent Decree. When the parties have children, the parties should also submit a parenting plan. Additionally, where assets are being divided, a Property Settlement Agreement should also be prepared. Once these documents are prepared and reviewed and approved by both parties, both parties can sign and notarize the documents. The documents can then be submitted to the Court as soon as sixty (60) days after the Acceptance of Service was signed. It usually takes a week or two for the judge to sign the Consent Decree and return it to the parties. Once the judge signs the Consent Decree, the parties are divorced.

Other Low-Conflict Ways To Get Divorced

This is where one party files for divorce (a.k.a. the “Petitioner”), and the other party (a.k.a. the “Respondent”) does not respond. Twenty days after the Respondent is served, the Petitioner can file for a default. The Petitioner must prepare a Default Decree, and, in most cases, attend a hearing. When a divorce proceeds by default, the Petitioner gets everything they are requested (limited by what the Petitioner listed in the Petition).

In our experience, we do not recommend going by default, as it carries substantial risk for both parties. In our practice, we have seen many Petitioners who could not get the Court to accept their default decree. We’ve seen people have to return to court as many as four times over an eight-month period to attempt to get their “quickie” divorce finalized. Additionally, many Petitioners contact us because they omitted something in the Petition that they now want to be included in the Decree. This is difficult to correct.

More commonly, we receive panicked calls from Respondents who were divorced by default—and the terms were not what they expected. We have had parents alarmed over the parenting plan the Court approved. In some cases, we have even had to file emergency petitions to undo default parenting plans. We have had parties who frightened over unfair financial terms. In a few cases, we have even seen parties financially ruined by the terms the spouse they trusted imposed on them. Once default has occurred, it is difficult and expensive to overturn. We have seen so many horror stories happen with defaults that we strongly advocate against the practice of proceeding by default.

Mediation is the far more-preferable way to get divorced. Many of our mediations reach full agreements in one two-hour session. Our mediators will ensure that all the vital considerations of a divorce are made and that the agreements are amicable. Mediation allows both parties to be a part of the conversation and part of the solution. Both parties agree to what is occurring.

Frequently Asked Questions

What is an uncontested divorce?

An uncontested divorce is an option in some states (but not in Arizona) where the parties can file together for divorce. And it will be granted.

Does Arizona allow for uncontested divorces?

No, not in the technical sense of the term “uncontested divorce.” That is, Arizona does not allow parties to file together. Of course, parties are welcome to reach agreements and submit those agreements to the Court in a document called a “Consent Decree,” but the Consent Decree can only be filed with the Court 60 days after service of the initial divorce papers has occurred.

What is the Arizona equivalent for an uncontested divorce?

The equivalent is to reach agreements and to submit a Consent Decree to the Court for the judge’s signature.

What do we do if we want to get divorced but don’t want to go to Court?

You reach agreements outside of Court. This is where a mediation is particularly helpful. You can reach full agreements on all issues before even filing.

If we reach agreements, do we have to go to Court?

No. In fact, if you use Best Law Firm to mediate and draft your documents, then it is likely that neither spouse will ever have to step foot in court.

What if we agree on everything? Do we still need to file something?

You will still need to file a Petition for Dissolution (the paperwork that starts the divorce), have it served on your spouse, and prepare a Consent Decree (the paperwork that finishes the divorce and divorces you) that both of you agree to and sign. The Consent Decree is then submitted to the Court for the judge to sign.

If we reach a full agreement in mediation, are we divorced?

No. The parties still must prepare a Consent Decree and file it with the Court.

If we agree on everything, do we still need to be mediate?

We recommend mediating because you likely have not thought of everything. Our mediators are well-versed in Arizona law regarding divorce and can ensure that you have considered all the issues that need to be addressed and reached agreements. Additionally, our mediator will draft up a Memorandum of Understanding that will memorialize your agreement (i.e., put your agreement in writing) and can be used to draft your Consent Decree.

What if the judge refuses to sign off on our agreements?

In our experience, judges almost always sign the Consent Decree the parties submit. On the rare occasions where a judge does not sign the Consent Decree, it is because the parties did not include something that is required to be in the Consent Decree. This again is where it is advantageous to use Best Law Firm because we know the requirements for what needs to be included in a Consent Decree.

What is the advantage of mediating with Best Law Firm?

Our mediators are knowledgeable, fair, insightful, and courteous. Our mediators know all the issues that need to be addressed in a divorce. Our mediators also know Arizona law related to a divorce as well as common and/or creative resolutions to difficult questions. Our mediators have experience both representing clients in a divorce proceeding and mediating with people going through the divorce. Our mediators are experienced in helping people reach agreements even when disputes are heated.

What happens if we file the Consent Decree without filing a Petition for Dissolution?

The Consent Decree will be rejected by the Clerk of Court. There must be a case pending for the Court to sign a Consent Decree. Additionally, under Arizona law, the earliest the parties can file a Consent Decree is sixty (60) days.

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