In states, such as Arizona, that are considered “no-fault” divorce states, neither spouse is required to prove that the other is “at fault” in order to be granted a divorce. Accordingly, factors such as infidelity, cruelty, or abandonment are not necessary to obtain a divorce in no-fault states. The only ground for the divorce is that the marriage is “irretrievably broken.” This ground is stated in the initial Petition.
If you are responding to the Petition for Dissolution of Marriage and also believe the marriage is irretrievably broken you can simply agree in your response. But what do you do if you do not agree with the allegation and you believe there is hope for reconciliation? You can dispute in your response that the marriage is irretrievably broken. In such circumstances, the court will then take evidence on this issue at the final hearing. While it is virtually impossible to show that the marriage is not irretrievably broken unless both parties agree, there are some steps that can be taken.
If you are responding to the Petition for Dissolution and believe that there is a basis for reconciliation, you can file a petition for a referral to conciliation services. Conciliation services is available in some courts as a means to put the divorce action on hold until there is an opportunity to meet with a court representative and determine whether there is the ability to repair the marriage. For example, if the reason the parties are divorcing is due to disputes over financial issues, it may be that putting in place a financial plan and having both parties agree to the financial plan will avoid the necessity of obtaining a divorce. If a Petition for Conciliation Services has been filed, no action can be taken with respect to the divorce until a notice is obtained from Conciliation Services that conciliation efforts have failed.
If testimony regarding whether the marriage is irretrievably broken is required all that is needed is testimony from one party stating that efforts at reconciliation were made, that those efforts were not successful, that further attempts would not be beneficial, and that the marriage is therefore irretrievably broken.
The judge may ask for information regarding the nature of the problems that led to the divorce or the type of reconciliation efforts made, such as using conciliation services, or counseling with a therapist or clergy member.
There is one caveat unique to couples married in Arizona with respect to “no-fault” divorces. If the parties have a “covenant” marriage, certain other requirements must be met. A covenant marriage is one where the parties agree that they are committed to each other and will take all reasonable efforts to preserve the marriage and be bound by the law in Arizona related to covenant marriages. This parties can declare this desire to enter into a covenant marriage on the application for a marriage license. A husband and wife may also, after marriage, convert the existing marriage to a covenant marriage. If your marriage is a covenant marriage, the basis and timing for obtaining a legal separation or a divorce are limited. If you have a covenant marriage, speak to your attorney about the grounds and timing for terminating your marriage.
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.