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Originally Posted On: https://thevalleylawgroup.com/blog/az-divorce-types/
No-Fault Divorce vs. Fault Divorce
Divorce can be an incredibly complicated and emotionally trying time for anyone. Depending on the circumstances, a divorce can also be a rather lengthy and contentious process that can cause additional financial strain if not handled properly. Whether one spouse is specifically at fault for having committed wrongdoing that directly resulted in their partner seeking a divorce or the couple realizes that their marriage is irretrievably broken with no chance of reconciliation, there are options available.
Regardless of the reasons, an experienced divorce attorney can ensure both parties involved can begin moving forward with their lives. The right legal professionals offer the greatest chance of reaching an agreeable settlement without needing to proceed to a trial. Unfortunately, having the court make the final decision is sometimes unavoidable.
Let us explore Arizona’s unique divorce laws and walk you through the major differences between no-fault divorce and at-fault divorce.
What Is No-Fault Divorce?
A no-fault divorce is a type of divorce where either spouse is able to file for divorce without needing to prove fault or wrongdoing by the other party, like abuse or adultery. The only requirement of the petitioner or spouse who is filing for divorce is that they confirm that the marriage is irretrievably broken or that the spouses have irreconcilable differences and, therefore, have no chance of reconciliation. If the other spouse rejects the statement that the marriage is irretrievably broken, then a family court judge can hold a formal hearing to determine their ruling on the case. However, in many cases, the court may view the objection itself as an irreconcilable difference.
Arizona is generally recognized as a modified no-fault divorce state, which means that divorcing couples need not prove fault while divorcing in the state, with one major exception. Covenant marriage is only available in Arizona, Louisiana, and Arkansas, and it has strict requirements for marriage as well as divorce. Couples in a covenant marriage must prove one party was at fault for breaking one of the covenant rules to divorce.
What Is an At-Fault Divorce?
An at-fault divorce refers to a divorce where a spouse files a divorce petition based on the grounds of fault or wrongdoing committed by their partner.
Matrimonial offenses often stated as reasons for divorce commonly include the following:
- Adultery
- Incarceration
- Abandonment
- Abuse (physical, emotional, or sexual)
- Mental illness
- Addiction (alcohol or illicit substances)
In divorce cases where fault has been established, the filing spouse may be awarded increased alimony payments and a larger share of the divided marital property and assets. This can make an at-fault divorce an attractive option for spouses who feel that they have been victims of wrongdoing in their marriage. While Arizona is not a fault divorce state, a judge may consider higher alimony payments or alter property division if the at-fault spouse spent an inordinate amount of money on the affair, addiction, or other situations.
Differences Between At-Fault and No-Fault Divorce
The primary difference between these two types of divorce is that an at-fault divorce requires proof of responsibility or wrongdoing in order to dissolve the marriage. Meanwhile, a no-fault divorce only requires one of the spouses to file a divorce petition because they feel that there are irreconcilable differences. No other proof of wrongdoing is needed.
No-fault divorces are generally less contentious, given that only one spouse is required to state that the marriage is irretrievably broken instead of having to prove wrongdoing. In a fault divorce, one spouse may disagree with or try to cover up evidence in order to fight back, often creating a more difficult situation. Determining fault is also an extra step that is not needed in a traditional, no-fault marriage.
Benefits of an Arizona No-Fault Divorce
There are a few significant advantages to a no-fault divorce:
- The divorcing couple is not forced to spend money on legal fees, investigations, witnesses, and other resources in order to prove fault.
- There is generally much less animosity and resentment displayed between the spouses since they are able to retain their privacy by not exposing fault.
- No-fault divorces are typically resolved much faster than at-fault divorces.
- Since no-fault divorces are simpler, processes like the division of complex assets can go more smoothly.
- No-fault divorces do not require the couple to spend time proving fault, so more time can be spent on processes like the division of assets and child custody.
- Some reason that no-fault divorces, due to their simplified nature, put abused spouses and children at less risk than lengthy, contentious fault-based divorces.
Arizona Divorce Laws
Arizona is a no-fault state when it comes to divorce, which means that either spouse can file for divorce without having to prove fault, like abandonment or adultery. The only requirement of the spouse filing for divorce is that they confirm that the marriage is irretrievably broken and, therefore, has no chance of reconciliation. If the opposing spouse rejects the statement that the marriage is irretrievably broken, then a family court judge can hold a formal hearing to determine their ruling on the case. However, the grounds of irreconcilable differences are still valid even if only one spouse believes the marriage should end, so the judge will often rule in favor of the no-fault divorce.
As mentioned, Arizona has some rather unique divorce laws compared to those of many other states, particularly when it comes to covenant marriages. Here are some of the most important divorce laws in Arizona that you should know if you are considering a divorce:
Covenant Marriage Laws
A covenant marriage is a legally binding contract between two people who agree to commit to each other for the rest of their lives. Arizona is one of only three states that legally recognize covenant marriages. Covenant marriages are intentionally much more difficult to dissolve because of the magnified commitment the spouses make to each other for life, which is oftentimes highly influenced by their faith or moral convictions. Therefore, the spouse who wishes to divorce must prove that the other spouse has broken that commitment.
Property Division Laws
In Arizona, any property and assets that were acquired during the course of the marriage are considered community property. Therefore, they are subject to equal division between the two spouses. Any property or assets acquired by either spouse prior to the marriage or after the divorce petition is filed would be considered separate or sole property and not subject to division.
Similar to the division of property and other assets, any debts obtained by either spouse during the course of the marriage or for the benefit of the marriage are subject to equal division.
Serving Divorce Papers in Arizona
Once the dissolution of marriage has been filed by one of the spouses, the papers must be served to the other spouse, either by mail, a process server or sheriff, or publication. In Arizona, the petitioner must serve the respondent with the divorce papers within 120 days of filing for divorce. The respondent legally has 20 days to file an answer with the court, or 30 if they do not reside in Arizona.
If they fail to do so within the 20-day period, then the other spouse can file for a default judgment with the court, which would potentially grant the divorce completely under the terms laid out by the filing spouse.
Residency Laws
For a divorce to be legally recognized in Arizona, at least one of the spouses must have been a resident in the state for at least 90 days prior to their filing for divorce.
Child Custody
The court will consider a number of factors when determining a ruling regarding parenting time, and Arizona’s term for physical custody. The child’s relationship with each parent, their current living situation, finances, and more can factor into the resolution of a child custody case. If the child is old enough, their wishes can also factor in the decision. Regardless of the specific elements that are being considered, the overall best interest of the child is always the top priority for the court when making a final determination.
Can a Spouse Prevent a Court From Granting a Divorce?
A spouse cannot prevent the court from granting a no-fault divorce since the court generally views objecting to the other spouse’s divorce petition as further confirmation of irreconcilable differences. However, a spouse is able to prevent the court from granting a divorce in at-fault divorce cases. This can be done by convincing the court that the claims of fault or wrongdoing are false.
Here are some of the common defenses used to oppose at-fault claims in divorce cases:
- Condonation – This refers to a spouse giving their approval of their partner’s activities. For example, one spouse may argue that their partner did not object to their adultery, therefore condoning the behavior and not being valid grounds for an at-fault divorce.
- Provocation – This can occur when one spouse encourages the other spouse to commit a certain act. For example, one spouse may seek an at-fault divorce on the grounds of abandonment, but their partner may claim that the spouse acted in a way that provoked the abandonment in the first place.
- Connivance – Similar to entrapment, this refers to one spouse intentionally setting up a situation so that their partner commits wrongdoing.
- Collusion – Some states legally require a separation period before a no-fault divorce can be finalized. If either spouse attempts to hurry the process or forego the separation period by manufacturing a ground for divorce, then that is called collusion.
It should be noted that the above defense strategies are seldom used. This is because the majority of courts will grant the divorce, given that most judges do not advocate for forcing couples to stay married when they do not wish to be any longer.
Divorce FAQs
Do I Need an Attorney if I Plan to Get Divorced?
If you are considering divorce or have fully decided to take that step, an attorney can be a valuable resource. Though there is no requirement to work with a divorce attorney, it is most often recommended to get their professional support. An attorney has the skill, experience, and familiarity necessary to work with the Arizona Family Court to ensure an agreeable outcome to your divorce. In addition, an attorney can ensure your divorce proceeds smoothly while you move on with your life.
In a No-Fault Divorce, Does it Matter Who Files First?
No, it does not matter which spouse files first for a no-fault divorce. Only one spouse is legally required to petition for divorce on the grounds of irreconcilable differences between the couple.
What Is No-Fault Divorce?
No-fault divorce is a type of divorce where either spouse is able to file for divorce without needing to prove fault or wrongdoing, like abuse or adultery. The only requirement of the petitioner or spouse who is filing for divorce is that they confirm that the marriage is irretrievably broken or that the spouses have irreconcilable differences and, therefore, have no chance of reconciliation.
Can a No-Fault Divorce Be Contested?
Legally, yes, a no-fault divorce can be contested. If the other spouse rejects the statement that the marriage is irretrievably broken, then a family court judge can hold a formal hearing to determine their ruling on the case. However, in many cases, the court may view the objection itself as an irreconcilable difference and reject the contest.
What Does Irreconcilable Differences Mean in a Divorce?
In a divorce, irreconcilable differences mean that there is no chance of reconciliation between the spouses and that their marriage is irretrievably broken. Irreconcilable differences are typically the only grounds for divorce used in no-fault divorce cases.
Whether you’re contemplating a divorce or your spouse has already filed a petition for dissolution of marriage, it’s paramount to the outcome of your case that you speak with a trustworthy family law attorney who has direct experience handling similar kinds of divorce cases in your state. They will be able to help you navigate the complicated legal process and secure a just resolution while ensuring that your individual rights are continuously upheld throughout the proceedings.
At The Valley Law Group, our experienced and compassionate team of family law attorneys understands the emotional attachments and highly personal stakes associated with a divorce case. We are committed to negotiating diligently on your behalf and to helping you understand the various legal options available to you in your individual case.
Contact our firm today to schedule a consultation and learn more about how we can help you achieve the most favorable outcome possible under your unique circumstances.
