Divorce & Legal Separation
How to Prepare for Divorce: A Guide to Make Divorce Slightly Less Overwhelming
1. Research Your Options
First and foremost, anyone considering divorce should make sure it is the right choice for their individual circumstances. Divorce is a life changing decision. Even when there is no reasonable prospect of reconciliation between spouses, there are several choices to be made. One of the earliest is to decide between divorce and legal separation. Procedurally the two options are very similar in Arizona. The most obvious difference is that at the end of a legal separation, the parties remain legally married. You might be thinking, well what is the point? One of the most important benefits of legal separation is that it allows spouses to continue to share marital benefits like health insurance. It also may be an option for individuals whose religious or personal beliefs prohibit divorce.
If you decide divorce is right for you, there are more choices to make. You can litigate a divorce, which means you file a petition in family court and if you and your spouse cannot agree to everything, the judge will hold a trial and decide any remaining issues. Alternatively, you can try mediation. Mediation is a method of alternative dispute resolution where you and your spouse voluntarily agree to meet and try to settle all of the issues in your case. A professional mediator, usually an attorney or former judge, helps to facilitate settlement. The effectiveness of mediation largely depends on the reasonableness of the spouses which sometimes can be difficult to predict. Even people who are normally rational may succumb to the emotions that often accompany the end of a marriage. Another potential disadvantage of mediation is that it can be fairly expensive and resolution is not guaranteed. While we mediate cases for affordable flat fees, most traditional mediators charge an expensive hourly rate. If you and your spouse are unable to reach full agreement after mediation, that money may have been wasted.
2. Gather and Organize Documents
No matter how you decide to proceed with a divorce, it is important to gather documents early in the process. This is especially true in contentious cases where one spouse may try to conceal or misrepresent the value of assets, including bank and financial accounts. Sometimes a spouse may be able to obtain copies of important documents or other information before alerting the other spouse to the prospect of divorce.
If litigation is required because you and your spouse do not agree to everything, you will be required to exchange a potentially significant amount of documents and information. Rule 49 of the Arizona Rules of Family Law Procedure establishes the minimum disclosure requirements for family law cases. Either spouse can request even more information from the other spouse by issuing discovery requests. But at the very least you should expect to exchange statements from financial accounts, W2s or other tax forms, documentation for all property and debt, and the names and contact information for any witnesses you may call during the litigation.
3. Inventory Property
This step is pretty important and it is often critically overlooked during the chaos preceding a divorce. Arizona is a community property state; this means that property acquired by either spouse during the marriage is presumed to belong to both spouses. Community property is equitably divided during divorce. If the parties cannot agree to property division, the family court will assign to each spouse a share of the property. Usually, but not always, this share is an equal half.
All of this probably sounds simple and maybe even intuitive. But one issue we frequently encounter is proving the existence and value of personal property. This is because spouses often physically separate when one decides to file for divorce. If a spouse leaves the marital home without documenting (photographing is great) valuable personal property, it becomes one spouse’s word against the other’s at court. Imagine you left the home quickly to escape an uncomfortable situation and were unable to take photographs of a collection of valuable items. You might not have any way to prove (1) those items exist and (2) how much they are worth. Without this evidence, the family court may not be able to apportion to you an equitable share of the items or their value.
When one spouse files for divorce, the court issues a preliminary injunction. The injunction makes it unlawful for either spouse to dispose of, transfer, destroy, or sell any community property. Practically speaking, it can be exceedingly difficult to enforce this and even more difficult to quantify damages if one spouse sells or removes community property from the marital residence in violation of the preliminary injunction. It is very important for anyone considering divorce to make a comprehensive inventory of personal property. We usually recommend itemizing anything you think is worth more than $100. Photographs of the items that depict condition, manufacturer, model, or any other pertinent information can be even more helpful.
4. Make a Budget
Divorce can be really expensive even when completed amicably without attorneys. A two-income household may become two one-income households. You should project your expenses and create a post-separation budget. This may help you resolve questions of property division, too. For example, it may be too expensive or impractical to maintain the marital residence after separation. The monthly budget also may help resolve questions of spousal maintenance if either spouse is eligible under A.R.S. § 25-319(A).
5. Consult with a Divorce Attorney
Although this step is totally optional, it will help you better understand the divorce process, timeline, your rights and obligations, and what to expect. No sales pitch because we will be the first ones to tell you that not every case requires an attorney. But our experienced divorce attorneys can answer all of your questions conveniently by telephone during a free consultation. Just discussing your situation with an attorney may provide invaluable peace of mind even if you intend to proceed without representation.