Many Arizona residents preparing themselves for a divorce find themselves looking at court forms and filing procedures and wondering, “Wait – why would a divorce go to trial?” The answer is usually a combination of the core areas on which the divorcing partners struggle to agree as they disentangle their formerly shared lives and the legal requirements of Arizona divorce, under which certain questions must always be decided before the former spouses can go their separate ways. Unfavorable outcomes at the initial divorce trial are a common – though not always sufficient – cause of divorce appeals, which will not pause the dissolution of the marriage but can hold up the resolution of some of the disputed issues in a way all parties find frustrating. To schedule a consultation with an Arizona divorce attorney and discuss your personal situation in detail, call Sullivan Shick PLC at (480) 284-2644 or (623) 915-0944 in Glendale.
What Is a Divorce Trial?
Divorces, broadly speaking, may be either contested or uncontested. A divorce is considered uncontested if the spouses pursuing the divorce are able to reach an agreement on all of the matters that must be addressed in the court order dissolving their marriage. When the parties are unable to reach an agreement out of court on any one of the necessary issues, the question must instead be decided by the judge overseeing the case, before the divorce can be finalized. This scenario typically leads to court hearings in which each side presents arguments in favor of their own preferred outcome on each of the contested issues – otherwise known as divorce litigation, or a divorce trial.
Types of Divorce Decrees in Arizona
Arizona is a somewhat unusual state in that it provides distinct forms for divorce depending on when and to what extent the spouses have been able to reach a consensus. If the parties are able to agree on all essential matters prior to the divorce filing, they may submit a Summary Consent Decree with the court in their jurisdiction. If one spouse files for divorce, but the parties are able to reach an agreement before the conclusion of the divorce proceedings, then they have the opportunity to instead file a formal Consent Decree – a broadly similar document, although the (non-summary) consent decree is more likely to be reached through negotiation facilitated by the spouses’ participation in divorce mediation or another form of alternative dispute resolution (ADR).
Spouses are not eligible to file a petition for consent decree if they have been unable to reach consensus on all of the required issues (generally related to the disposition of property and the division of parental responsibilities, if applicable); however, if one spouse files a request for divorce in Arizona and the other party does not respond to service of process within the designated timeline, the Superior Court of Maricopa County provides instructions for requesting the court to proceed with a default decree. An Arizona family law attorney with Sullivan Shick PLC may be able to advise you if you are considering a petition for default decree.
How Do You Win a Divorce Trial?
After finding the answer to “Why would a divorce go to trial?” many spouses approaching the divorce process then find themselves wondering how they can win in court if their divorce case does end up going to trial in Arizona. The specifics will always depend on the factors present in the individual case. However, two of the most common areas of disagreement that can lead to a divorce trial are the division of marital property and the determination of child custody (usually referred to in Arizona as legal decision-making and parenting time). The strategies that are most often useful for success differ between these two dominant areas of dispute.
Division of Marital Property
Arizona is what is known as a “community property” state, which means that, with few exceptions, debts and assets acquired during the marriage are presumed to belong equally to both spouses. In a divorce, therefore, the default assignment of marital property is to divide both ownership of assets and the responsibility for debts evenly between the spouses, in what is sometimes called a “50/50” split.
Community vs. Separate Property
Property that either spouse owned, as well as debt either spouse took on, prior to the marriage is generally regarded as “separate” property and not eligible for distribution between the spouses according to community property rules, and the same applies to property obtained during the marriage if the property meets certain exemption criteria. Generally speaking, exemptions are based not so much on the nature of the property but on the means by which it came into one spouse’s possession.
Property that comes into the possession of either spouse during the marriage may be regarded as separate if:
- The property was a gift given to one spouse only
- The property was an inheritance or devise, and only one of the spouses was designated as the heir or beneficiary
Certain financial activities can trigger what is known as a “co-mingling” of assets (or debts) that may convert separate property into marital property, so consider discussing the particulars of your situation with an Arizona divorce attorney if you have questions.
Proving Separate Property
Because the presumption in Arizona is that all marital property should be divided evenly between the spouses in the event of a divorce, much of the legal strategy for disputing the division of property in an Arizona divorce trial is often centered on developing arguments to prove that specific assets or liabilities are separate vs. marital. Spouses may not like to hear it, but often both parties have a reasonable case to make in their own favor; the reality is that, in many marriages, property that belongs to either is used for the good of the whole family, and property that belongs to both spouses may be used for the benefit of either. Whether this activity constitutes co-mingling in a particular case can be a difficult question, and an Arizona divorce attorney will frequently recommend recruiting the expertise of a financial analyst or forensic accountant to help clarify key points as you build your case.
Parenting Time and Decision-Making Responsibility
The allocation of parental rights and responsibilities can be a question even more fraught than the division of marital property in an Arizona divorce. The Arizona courts provide a guide, called “Planning for Parenting Time,” that divorcing spouses can use as a starting point, but it is not unusual for the soon-to-be-divorced co-parents to struggle with the idea that they will soon have to divide time with their children. Consequently, child custody disputes frequently make their appearance in divorce trials.
ARS § 25-403 establishes that parenting time allocations must be determined in accordance with the “best interest of the child” standard. As a result of this emphasis, the primary strategy for achieving the degree of child custody you want will usually be demonstrating to the judge overseeing the case that spending time with you is in your child’s best interest. There can be many different ways to achieve this goal, depending on the circumstances; an effective strategy can sometimes result in years of more-or-less harmonious co-parenting. Given the extraordinary emotional impact of child custody concerns, however, it is no surprise that child custody decisions that adversely affect either parent are among the most common motives for seeking divorce appeals.
Schedule a Divorce Consultation
At Sullivan Shick PLC, we know that divorcing spouses may have many questions about the changes that are about to overtake their lives. One of the most common of these questions is, “Why would a divorce go to trial?” Get the answer to that question and learn more about the Arizona divorce process, as well as the options divorced Arizonans have for pursuing divorce appeals, in a personalized consultation with one of our attorneys. You can reach our offices by calling (480) 284-2644 or (623) 915-0944 in Glendale. We look forward to serving you.