You may have been thinking about filing for divorce, but your spouse has told you that they will never “give” you a divorce. They may even have left the state thinking that will prevent you from filing for dissolution of the marriage. The good news is that Arizona does not require that your spouse agree to a divorce. If your spouse threatens to not “give” you a divorce, know that in Arizona this is likely to be an idle threat without any basis in the law.
Under Arizona law, to obtain a divorce you must be able to prove that your marriage is “irretrievably broken.” This is a legal term meaning that one sees no possibility of reconciliation between you or your spouse. In short, it is not necessary to have your spouse agree to the divorce or to allege the specific difficulties that arose during the marriage to obtain a divorce in Arizona, just that at least one party can state that the marriage is irretrievably broken.
In addition, you may file for divorce in Arizona, even if your spouse leaves the state. Provided you have met the residency requirements for living in Arizona for 90 days, you can file for divorce here even if your spouse lives in another state. Discuss with your attorney the facts that will need to be proven and the steps necessary to give your spouse proper notice to ensure that the court will have jurisdiction (that is the power to decide your case) over your spouse. Your attorney can counsel you on whether it is possible to proceed with the divorce.
But what if you no longer even have a current address for your spouse? Arizona law allows you to proceed with a divorce even if you do not know the current address of your spouse. First, take action to attempt to locate your spouse. Contact family members, friends, former coworkers, or anyone else who might know your spouse’s whereabouts. Utilize resources on the Internet that are designed to help locate people. You may even consider hiring an investigator.
Let your attorney know of the efforts you have made to attempt to find your spouse. Inform your lawyer of your spouse’s last known address, as well as any work address or other address where this person may be found. Once your attorney attempts to give notice to your spouse without success, it is possible to ask the court to proceed with the divorce by giving notice through publication in a newspaper.
Although your divorce may be granted following service of notice by publication in a newspaper, you may not be able to get other court orders such as those for spousal support or child support without giving personal notice to your spouse. Talk to your attorney about your options and rights if you do not know where your spouse is living.
About the Authors:
Bob Schwartz is a Member in our Phoenix office. Bob has been practicing law for over 40 years, specializing in family law. He is a member of the American, Arizona and Maricopa County Bar Associations. He is admitted to practice in the federal courts of New York, Arizona, Ninth Circuit Court of Appeals, and the U.S. Supreme Court. Mr. Schwartz is a fellow of the American Academy of Matrimonial Lawyers and past president of the Arizona chapter. He serves as a judge pro tem for the Superior Court of Maricopa County in family court matters. He is a certified family law specialist by the State Bar of Arizona; is a frequent lecturer on family law and related matters; and, former member of the State Bar Family Law Advisory Commission. Mr. Schwartz has tried numerous complex business valuation cases as well as complex custody cases. He has testified as an expert in family law matters. Bob co-authored the Divorce in Arizona book. He may be reached in our Phoenix office at 602-285-5020.
Marlene Pontrelli is a Member in our Phoenix office. Marlene is a certified specialist in family law. Her practice focuses on all aspects of family law including dissolution, post-dissolution, paternity, child custody and child support matters. She is admitted to practice in California and Arizona. She is a member of the State Bar’s Family Law Practice and Procedure Committee and is a judge pro tem for the Superior Court of Maricopa County in family law. She has extensive trial and appellate experience including appearing before the Arizona Court of Appeals, Arizona Supreme Court and Ninth Circuit Court of Appeals.
Ms. Pontrelli has written several books, including as a co-author of the Divorce in Arizona book. She is a frequent lecturer in the area of family law and has conducted workshops throughout the country. Ms. Pontrelli is also an adjunct professor at The Sandra Day O’Connor School of Law at Arizona State University, where she teaches the family law class. Marlene may be reached in our Phoenix office at 602-285-5081.