Scottsdale Same-Sex Divorce Attorneys

What You Need to Know About Same-Sex Divorce and the Process

Same-Sex Divorce in Arizona

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Since the legalization of gay marriage, Arizona law has not entirely caught up to protect LGBTQ interests. It is important to become educated about the process to make informed decisions for yourself and your children.  Understanding the laws surrounding divorce and becoming familiar with the process will help you focus on your goals during this difficult time.

At Best Law Firm, we offer customized legal representation to meet your financial and legal needs. You may only need a little coaching and some legal advice or you may need help with developing a legal strategy to protect your assets and get custody of your children.

Whatever your goals, we will work with you to find out what outcome is most important to you and we will help you get there. Every family is different. We unbundle our legal services and offer personalized service with effective solutions.

The divorce process can feel complicated and overwhelming. This page will outline the divorce process and highlight some of the unique challenges that may arise during a same-sex divorce.

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Before You Begin

Every Maricopa county divorce requires standard documentation to begin the legal process. A Petition for Dissolution must be filed with the court and whomever filed the Petition must legally serve the opposing party. The forms can be found on the Maricopa County Superior Court Website, in our Divorce Coach Book, a document preparation service that we provide or by retaining the Best Law Firm.

It’s important to know that the court does not favor either party in the divorce. It does not matter if you file for the divorce or if you respond.

Arizona is a no-fault state, which means that a person does not need a reason for seeking a divorce.

During the divorce proceedings the person who filed for the divorce is referred to as “The Petitioner” and the person who responds to the divorce is referred to as “The Respondent”. The terms Petitioner and Respondent are only used to differentiate between the two people involved.

A legal separation is almost identical to a divorce, except at the end, you are separated and not divorced. The procedures are identical in terms of filing, costs, and the final agreements regarding finances. Financial agreements in a legal separation will become the same financial agreements in a divorce. In other words, you cannot make a decision regarding finances in a legal separation and then change your mind about the same issues in a divorce, unless both parties agree. The financial agreements in a legal separation cannot be changed in a subsequent divorce action, except by agreement of the parties.

A common question spouses have is whether they should get a legal separation instead of a divorce. The answer depends on what you are trying to achieve. If you want some financial protection or you want to continue your health insurance, a legal separation will likely accomplish both. If you want to get remarried, you need to get divorced. It is also common for a spouse to file for a legal separation to stop the debts incurred by the other spouse from becoming a community debt. When a petition for a legal separation is filed and served, each party is then responsible for any debt incurred after that service date.

How to File For Same-Sex Divorce in Arizona.

What you need to know.

In Arizona, a divorce starts when one spouse files a Divorce Petition (called a Petition for Dissolution) with the court. There are filing fees for a Petition for Dissolution and for filing a Response. Filing Fees:

Petition for Dissolution of Divorce $338

If you cannot afford these fees, you can request that the court waive or defer them.

In an Arizona divorce, once a Petition has been filed, a copy of the Petition and the related documents must then be legally served on the other spouse.

Service can be accomplished in a few different ways, including by waiver, by personal service, or by process server.

The date of service is important, because it is the date the “marital community” is deemed separated.

From the date of service going forward, the parties will no longer accumulate “community” property or debt; that is, property that each spouse has a claim to and debts that each party is deemed equally responsible for.

A Preliminary Injunction will be served along with the Petition. This stops both parties from selling community property, making changes to existing insurance coverage, and removing minor children from the state without court permission or the other parent’s written consent.

Responding to a Petition for Divorce

In an Arizona divorce, a Response can be filed after receiving a petition for divorce. The Respondent (responding spouse) has 20 days after service to file a Response to the Petition of Dissolution served within Arizona; he or she has 30 days to respond if served outside of Arizona.

Filing Fees: Response to Petition for Dissolution $269. If you cannot afford these fees, you can request that the court waive or defer them.

If the responding spouse fails to file a Response within the allowed time, the petitioning spouse may apply for a default judgment.

A spouse applies for a default judgment by filing an Application and Affidavit for Default. The responding spouse will then have 10 days to respond to the Application and Affidavit for Default.

If the spouse fails to respond, a Default Decree of Dissolution of Marriage may be obtained, which grants the divorce on the terms of the spouse who originally filed the Petition.

If both parties agree to all issues, divorce can be completed rather quickly. In an Arizona divorce, if a Response is filed and the parties are able to agree on all issues, a Consent Decree of Dissolution of Marriage setting forth all the agreements can be submitted to the court. Once the Decree is signed by the judge, the divorce is final.

What Happens After You File for Divorce

RMC

The court typically starts by scheduling a Resolution Management Conference (RMC) where the parties and their attorneys, if they are represented, go before the court for the first time. At the RMC, the court will attempt to determine if the parties have reached any agreements.

RULE 69 AGREEMENT

If there are agreements, the court may have them recorded as a formal and binding agreement. The court will also determine what, if any, services and/or orders the parties need to help conclude the matter. Those services and/or orders could include drug testing of one or both parents, mental health evaluations, vocational evaluations and business evaluations.

SETTLEMENT CONFERENCE

Next, the Court will generally schedule a settlement conference with the court’s alternative dispute resolution (ADR) services. A settlement conference involves the help of a neutral mediator who attempts to help the parties resolve the remaining issues without going to trial.

TRIAL

Last, the court will set a trial date to hear any disputed issues; if the parties are able to settle all issues before the trial date, they can notify the Court to cancel or “vacate” the trial. If the matter does proceed to trial, the court will issue a divorce decree within 60 days of the trial.

Frequently Asked Questions About Same-Sex Divorce

What if my child was conceived through artificial insemination?

A Mother in a same-sex marriage that was not the Mother who had the child through artificial insemination may not be the child’s legal parent. The Arizona Court of Appeals, Division One, recently ruled in Turner v. Korbin that the former wife of a woman who gave birth via artificial insemination is not the child’s legal parent. This ruling goes against the Arizona Court of Appeals, Division Two’s ruling in the similar case of McLaughlin v. Jones. The courts expressed different opinions as to whether Arizona’s paternity statute A.R.S.§ 25-814 shall be read gender-neutrally or as only applying to men. The Arizona Supreme Court will rule on this issue shortly to clarify the courts position on this issue.

Does being on the birth certificate establish parental rights?

A birth certificate may not be enough to establish parental rights. In a recent Arizona same-sex paternity cases, Turner v. Korbin, both Mothers were on the birth certificate but only the Mother who gave birth to the child was classified as the parent.  The court ruled Arizona’s paternity statute of A.R.S. § 25-814 was gender-specific and does not apply to woman. Thus, being on the birth certificate will simply be used as a factor in determining whether paternity has been established.

What factors may a court look at to see if same-sex paternity has been established?

Generally, a court would look at Arizona’s paternity statute of A.R.S. § 25-814 to see if a presumption of paternity has been created. However, the Court of Appeals are split on whether this statute applies to woman and the Arizona Supreme Court will decide this issue shortly.

For now, a court will weigh several factors to see if paternity has been established. One factor may be if both parents name is on the birth certificate. A court may also look to see if there is an agreement between the parents to raise the child and share custody. A court may further look to see if there have been any official adoption efforts taken by the parties to ensure the non-biological parent is still classified as a parent. Unfortunately, the standard for same-sex paternity is currently not clear and is at the court’s discretion. The more evidence you can show that you were a parent to the child the more likely the court is to award you parental rights.

How long will it take to get a divorce?

According to Arizona Revised Statute, section 25-329 and Arizona Rules of Civil Procedure 4.1(c), you must wait at least 60 days from the date your spouse was served before going to Court and having the Decree of Dissolution of Marriage entered. This assumes you and your spouse have agreed on the terms or your spouse is in default. When the spouses cannot agree on how to settle issues such as assets and debts, the length of time to get divorced can be longer. If you litigate the issues, it can take a year or longer.

Where do I file for my divorce?

There are currently four courthouse locations in Maricopa County, which are located Downtown, Northeast, Northwest and Southeast (see resource guide for other county courthouses).

What if my spouse filed and I do not want to get divorced?

You cannot stop your spouse from divorcing you but you can file a request with the court to order a one hour conciliation meeting to try and reconcile. These rules change, depending on the budget, there may be a fee associated with reconciliation. During this “time out” for 60 days, there can be no “discovery” (see glossary) taking place.

What is a Covenant Marriage?

You will most likely know if you have one of these; it is an optional type of marriage created by the state legislature that requires partners to complete marital counseling prior to marrying and to sign a special declaration to obtain a marriage license. In a covenant marriage, a legal separation or divorce may be granted only for certain reasons listed in state law. The law regarding covenant marriages can be found in Sections 25-901 through 25-906 of the Arizona Revised Statutes.

What is a divorce "Decree?"

A Decree of Dissolution of Marriage is the final order of the Court which makes each party a single person again, and includes separate orders concerning child custody and visitation, child support, division of property and debts, spousal maintenance and any other appropriate orders. The Decree is the final order of the court legally ending the marriage. Spouses are not “divorced” until the court grants the divorce and the Decree is signed by the judge. A Decree of Dissolution is a court order and can be enforced just as any other order of the Court.

What if I do not have money to pay the filing or fee?

You may request that the Court waive or postpone payment of the filing or response fees. Forms must be completed and signed by you and submitted to the Court. The forms are free of charge and are available in the office of the Clerk of Superior Court.

How much does it cost to file for divorce in Maricopa County?

The Petitioner (initiator of the divorce) must pay Maricopa County $338.00 as of March, 2010 and the Respondent pays $256.00 for filing an answer.

Can my spouse and I file for divorce together?

No, Arizona does not have a provision for any type of joint filing.

Do I need an attorney for my divorce?

Arizona law allows you to do this yourself. You are considered pro se or pro per; you must follow all the same rules as parties with attorneys. You may have to go into a courtroom but you are held to the standard of an attorney.

Can I file for a divorce in Arizona if I was not married here?

Previously, under the 1996 Defense of Marriage Act, states were not required to recognize same-sex marriages from other states. However, since the Supreme Court’s landmark decision in Obergefell v. Hodges, states are required to recognize valid same-sex marriage performed in other states.  In order to file for a divorce in Arizona under A.R.S. § 25-312, one of the married parties must have made Arizona their home state (domiciled) for at least ninety days prior to filing. However, if there are children involved in the marriage, then the children must have lived in Arizona for six months for this to be considered their home state.

Can I be awarded spousal maintenance or child support?

Yes. Same-sex couples receive the same protection as opposite-sex couples and can be entitled to awards of both spousal maintenance and child support.  In determining spousal maintenance Arizona court will look at the factors under A.R.S. § 25-319 to see if a party is entitled to spousal maintenance. If a party is entitled to spousal maintenance they will determine how much and for how long should they receive spousal maintenance. Spousal maintenance is unpredictable and at the court’s discretion. Child support is much more predictable and is determined by inserting each parties salaries, parenting time, and other child expenses into a child support calculator to determine who will pay child support and how much child support will be paid.

Is it possible to represent myself in court?

Yes, as it is not a requirement that you have an attorney to represent you in divorce proceedings. However, the same rules and procedures apply whether you have an attorney or not, which means all papers must be correctly completed and filed on time.

When is my dissolution final?

A dissolution of marriage is final after the judge or commissioner takes testimony, signs the Decree and files it with the Clerk of the Court.

I cannot afford health insurance. If I file for divorce, can my husband stop paying for it while we are in the divorce proceedings?

No. After one spouse is served with the dissolution or legal separation documents, no insurance of any kind can be canceled or modified to the detriment of the other spouse.

Who actually divorces me?

The divorce decree will be from the Judge or Commissioner assigned to your case who works for the Superior Court of Maricopa County, which is a state court.

Am I considered the "bad guy" if I file first?

Someone has to be the Petitioner and someone has to be the Respondent. There is no advantage or disadvantage to either (other than perhaps assignment of the courthouse nearest to the Petitioner).

Does it matter if my spouse was having an affair?

No, Arizona is a “no-fault state,” which means that the court does not require that one spouse prove blame or responsibility in order to end the marriage. However, in Covenant Marriage (see below), a court will not enter a decree of dissolution of marriage unless certain criteria are met. (See Arizona Revised Statute, Section 25-903 for the specific requirements).

What if I change my mind after starting a divorce?

If you and your spouse decide to stay married, the divorce case can be canceled or “dismissed” by filing a request with the Clerk of Superior Court and signed by both parties.

Who can start a divorce case?

In Arizona, either spouse can ask the court for a divorce. A divorce is not awarded to either spouse; rather, it simply changes the status of the marriage relationship.

Will I have a jury if my divorce proceeds to trial?

No, if your case is litigated, you will not have a jury. One judge will make all the decisions that the parties cannot agree on.

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