Researchers have found that the stressfulness of divorce is second only to the death of a spouse. In addition to the stress caused by the breakup of the relationship, “fear of the unknown” as to the divorce process can cause sheer panic. While only marital reconciliation can alleviate the stress brought on by the marriage breakup, an understanding of the divorce process can often help calm the rattled nerves of those contemplating divorce or in the midst of a divorce case.
Navigating the potentially perilous waters of a divorce case is best left to an experienced divorce attorney, but the basic course a divorce case follows is surprisingly simple to understand. In every Utah divorce case, the ultimate goal is to obtain a court order called a “decree of dissolution of marriage.” This is the document that ultimately ends the marriage, and in most instances, there are only two ways to secure this decree – by (1) settlement or (2) going to court. When the husband and wife agree on the issues, they may obtain a divorce decree without ever setting foot in the courthouse. When the husband and wife do not agree on one or more issues which must be addressed in the divorce decree, they must appear before a judge, present evidence, and let the judge rule on the disputed matters.
Arizona divorce cases involve up to about six categories of issues, which again must be resolved either by settlement or by a judicial decision. These issues include: (1) dissolution of the marriage, (2) custody and parenting time of children (if applicable), (3) spousal maintenance (or alimony), (4) child support (if applicable), (5) division of assets and debts, and (6) miscellaneous issues including income tax filings and responsibility for attorneys’ fees.
1. Dissolution of the Marriage. In most Utah marriages, neither party is required to prove fault in order to obtain a divorce. As long as one spouse believes the marriage is irretrievably broken, the divorce will be granted. It is extremely rare in Arizona for spouses to argue over whether a divorce should be granted. In almost every case, the husband and wife agree to dissolve their marriage and do not take this issue before the judge.
2. Child Custody and Parenting Time. When divorcing spouses have minor children together, child custody is an issue which must be addressed in the divorce decree. What most people commonly refer to as “child custody” really consists of two components: (a) decision making or legal custody, and (b) parenting time, or the schedule of time the children will spend with each parent. In most Utah cases, shared decision making or joint legal custody is appropriate. If there has been a history of substance abuse or domestic violence during the marriage, it may be appropriate for one parent to have decision making authority, or sole legal custody. The schedule of time the children will spend with each parent can vary greatly from case to case. In some cases, it is appropriate for the children to spend equal time with each parent. In other cases, it is appropriate for the children to live primarily in one parent’s home and to have frequent, shorter visits with the other parent. Child custody decisions by judges are primarily governed by Arizona Revised Statutes § 25-403.
3. Spousal Maintenance or Alimony. In Utah, what is commonly known as “alimony” is called “spousal maintenance.” Whether one spouse should receive spousal maintenance from the other spouse depends on the property allocated to each spouse, the length of the parties’ marriage, the age of the parties and their children, the respective earnings or earning abilities of each party, and whether one spouse has contributed to the educational opportunities of the other spouse. Determining whether one spouse should receive spousal maintenance from the other spouse is governed by A.R.S. § 25-319A. If it is determined by agreement or court decision that one spouse is entitled to spousal maintenance from the other, the amount and duration of spousal maintenance is determined by looking at a number of factors, including the comparative earning abilities of the parties, the standard of living established during the marriage, the duration of the marriage, and all other relevant factors, including those listed in A.R.S. § 25-319B. In shorter marriages of less than five years, spousal maintenance is generally not appropriate. Qualified attorneys can advise clients regarding spousal maintenance, but court decisions on spousal maintenance issues can be very unpredictable.
4. Child Support. When children are involved, one parent may need to pay child support to the other parent. In order to “run” the calculation and determine the resulting child support amount, several variables must be determined, including the amount of each parent’s gross monthly income, the cost of supporting children not common to the parents (children from former relationships), the cost of medical insurance and work-related day care expenses, and the parenting time schedule.
5. Division of Assets and Debts. To divide assets and debts, the assets and debts must first be categorized as either community or sole and separate. Sole and separate property primarily consists of assets one spouse owned before the marriage or gifts or inheritances received by one spouse during the marriage. In the absence of a premarital agreement, community property is generally everything acquired during the marriage by the labor and industry of the husband and/or wife. Sole and separate property is allocated to the spouse who owned the property before the marriage or who received the property during the marriage by gift or inheritance. Community property is generally divided equitably, or substantially equally, between the husband and wife, regardless of which spouse actually earned the funds used to purchase the community property.
6. Miscellaneous. Almost all issues involved in a divorce case fall into the five categories above. Other minor issues sometimes need to be addressed, such as how income tax filings, tax liabilities and refunds will be handled for the years in which the divorce is filed and/or finalized. In addition, sometimes one spouse will seek recovery of his or her attorney’s fees from the other spouse, and under certain circumstances, it may be appropriate for one spouse to pay some portion of the other spouse’s attorney’s fees and litigation expenses.
Although this article is only meant to be an overview, understanding the basic divorce process can alleviate some of the stress most people feel at the beginning of their divorce cases. Absent marriage reconciliation, the conclusion of every divorce case is a signed decree of dissolution of marriage. That decree, or court order, will address all of the applicable six (6) categories of issues outlined above. When the parties reach an agreement on all of these issues, the decree of dissolution of marriage can be prepared by the parties or their lawyers and can be signed by the judge without any court appearance required. If the parties fail to agree on one or more of these issues, the judge will decide that issue and enter a decree of dissolution of marriage following presentation of evidence at a court trial. For a more detailed explanation of the divorce process, a person should consult with an experienced and qualified divorce lawyer.
