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ARIZONA STATE SENATE
Fifty-Fifth Legislature, Second Regular Session
AMENDED
FACT SHEET FOR s.b. 1383
dissolution of marriage; annulment
Purpose
Outlines a method for parties to terminate legal separation and restore their status as legally married. Creates a summary consent decree for dissolution of marriage or legal separation where both parties may file a combined petition for a lower filing fee or jointly withdraw. Specifies the Superior Court's ability to call a conciliation conference and third parties' rights regarding legal decision making and parenting time. Requires the Supreme Court to establish guidelines for determining and awarding spousal maintenance
Background
Current statute allows for either party to a marriage to initiate a proceeding for dissolution of marriage, annulment or legal separation. The petitioner must allege that the marriage is irretrievably broken, that one or both parties desire to live separate and apart and, in the case of a covenant marriage, that statutorily prescribed requirements for the dissolution or separation have been met (A.R.S. § 25-314).
Conciliation court services are overseen by the Superior Court for married parties who are considering or who are in the process of divorce. Either party may invoke the jurisdiction of the court. The outcome of the court is to either: 1) preserve the marriage by effecting a conciliation between the parties; or 2) amicably settle the controversy between the spouses to avoid further litigation over the issue (A.R.S. § 25-381.09).
The superior court, in a proceeding for maintenance, may grant a maintenance order if it finds that the spouse seeking maintenance meets outlined requirements related to being unable to be self-sufficient for a variety of reasons. Maintenance order amounts and duration are determined by the superior court without regard to marital misconduct. Statute outlines 13 relevant factors to take into consideration, including standard of living during the marriage, the ability for the spouse paying maintenance to meet their own needs while paying maintenance and the financial resources of the party seeking maintenance (A.R.S. § 25-319).
There is no anticipated fiscal impact to the state General Fund associated with this legislation.
Provisions
Summary Consent Petition and Decree
1. Allows parties to jointly elect to proceed with a dissolution of marriage or legal separation action as a summary consent decree proceeding if a comprehensive settlement of all issues is reached before either party initiates formal dissolution of marriage or legal separation proceedings.
2. Requires parties proceeding with a summary consent decree proceeding to file a combined petition and response for dissolution of marriage or legal separation which states that formal service of process is waived and all issues are resolved by agreement.
3. Establishes that the filing fee for the summary consent decree is half of the filing fee for the combined filing fee for a petition and answer, together with any additional filing fees assessed by the county, is the filing fee for the summary consent decree.
4. Requires parties to submit to the court all required final settlement documents, including their written agreements and proposed decree, within 60 days after the date of filing.
5. Prohibits the court from entering the final decree earlier than 60 days after the date of filing.
6. Allows either party, at any time before entry of the decree, to submit a notice of intent to withdraw from the summary consent decree agreement, which is then considered a withdrawal from an agreement in accordance with the Arizona Rules of Family Law Procedure.
7. Requires the court to dismiss a case if the parties jointly withdraw from the summary consent decree agreement.
Filing of Petition
8. Removes the statutorily prescribed title for a dissolution of marriage proceeding and requires a proceeding for dissolution of marriage, annulment or legal separation to be filed in accordance with the Arizona Rules of Family Law Procedure.
9. Removes the requirement that:
a) an initial pleading in any dissolution of marriage or legal decision-making and parenting time proceeding be denominated a petition; and
b) a responsive pleading be denominated as a response.
10. Removes a prohibition against a decree of dissolution or of legal separation from being awarded to one of the parties and removes the requirement that the decree instead provide that it affects the status previously existing between the parties in the manner decreed.
Dissolution of Marriage
11. Requires the court to make a finding as to whether a marriage is irretrievably broken if, by petition or otherwise:
a) both parties state under oath or affirmation that the marriage is irretrievably broken; or
b) one party states under oath or affirmation that the marriage is irretrievably broken and the other party does not deny it.
12. Requires the court, in the case that one party denies under oath or affirmation that the marriage is irretrievably broken, to hold a hearing to consider all relevant factors as to the prospect of reconciliation and either:
a) make a finding as to whether the marriage is irretrievably broken; or
b) continue the matter for not more than 60 days where either party or the court may order a conciliation conference and at the next hearing the court must make a finding as to whether the marriage is irretrievably broken.
13. Allows the court, at the request of either party or on its own motion, to order a conciliation conference.
14. Determines that a finding that a marriage is irretrievably broken is a determination that there is no reasonable prospect of reconciliation.
Decree of Legal Separation
15. Allows the parties to terminate the degree of legal separation at any time after entry of a final decree of legal separation that has not subsequently been converted into a decree of dissolution of marriage.
16. Requires the stipulated order to be filed under the same case number as the legal separation action and must include:
a) that both parties agree to terminate the legal separation, desire to restore their status to legally married and that they do so intelligently, voluntarily and without any compulsion;
b) that the marital community is re-formed on entry of the stipulated order thus terminating the decree of legal separation as if the parties became married on entrance of the termination order, at which time the legal separation no longer exists;
c) that any property awarded to either party as sole and separate property under the terms of the decree of legal separation are the sole and separate property of the acquiring party;
d) that any property acquired or debts incurred from the date of the entry of the decree of legal separation through the date of termination are the sole and separate debt of the incurring party;
e) that any property payments due from one party to the other under terms of the decree of legal separation are deemed waived, unless otherwise specified in the termination order;
f) that any parenting orders entered in the decree of legal separation no longer apply;
g) that any provisions for child support or spousal maintenance entered in the decree of legal separation no longer apply and each party is waiving any claims to child support or spousal maintenance, except for sums owed to the state for assignments of right support or unless otherwise agreed; and
h) that both parties acknowledge that termination of the legal separation does not impact the rights of creditors that may have relied on the terms of the decree of legal separation.
Pleadings
17. Requires the verified petition in a proceeding for dissolution of marriage, annulment or legal separation to allege that the marriage is void in addition to irretrievably broken and that both parties desire to live separate.
18. Includes, as a defense to a petition in a proceeding for annulment, that the marriage is not void.
Preliminary Injunction
19. States that both parties in all actions for dissolution of marriage, annulment or legal separation are enjoined from removing any child of the parties from Arizona, rather than from the jurisdiction of the superior court, while a child resides in Arizona and without the prior written consent of the parties or the permission of the court.
20. Removes the ability for either party, as part of a motion for temporary maintenance or support or by independent motion accompanied by affidavit, to request the court to issue a temporary restraining order or preliminary injunction for:
a) excluding a party from the family home or from the home of the other party on a showing that physical or emotional harm may otherwise result; or
b) providing other injunctive relief proper in the circumstances.
21. Removes the ability for the court to issue a temporary restraining order without notice to the other party only if it finds that irreparable injury will result to the moving party if no order is issued until the time for responding has elapsed.
22. Removes the stipulation that a bond is not required in the instance of a temporary restraining order without notice unless the court deems it appropriate.
23. Removes the ability for the court, on the basis of the showing made and in conformity with the disposition of property and maintenance, to issue a preliminary injunction and an order for temporary maintenance or support in amounts and on terms just and proper in the circumstances.
24. Removes the ability for the court to make temporary orders respecting the property of the parties as necessary.
25. Removes that a temporary order or preliminary injunction:
a) does not prejudice the rights of the parties or of any child that are to be adjudicated at the subsequent hearings in the proceeding;
b) may be revoked or modified before final decree on a showing by affidavit of the facts necessary to revocation or modification of a final decree;
c) that provided for equal possession of liquid assets of the marital property does not prejudice either party's claim for temporary maintenance, child support or attorney fees; and
d) terminates when the final decree is entered or when the petition dissolution, legal separation or annulment is dismissed.
26. Removes the stipulation that the remedies provided in statute regarding preliminary injunctions for enforcement of the preliminary injection are in addition to any other civil or criminal remedies available, including civil contempt of court.
27. Removes the stipulation that the use of one remedy provided in statute regarding preliminary injunctions does not prevent the simultaneous or subsequent use of any other.
28. Removes the definition of liquid asset used for the purposes of preliminary injunctions as:
a) cash;
b) traveler's checks;
c) cash in financial institutions; or
d) lottery winnings.
Temporary Orders & Definitions
29. Allows either party in a proceeding for dissolution of marriage, legal separation or annulment, or for maintenance or support following a dissolution of marriage by a court that lacked personal jurisdiction over an absent spouse, to move for temporary orders seeking:
a) an order for equal possession of the liquid assets of the marital property;
b) temporary spousal maintenance;
c) temporary legal decision-making and parenting time of a child common to the parties;
d) temporary support of a child, natural or adopted, common to the parties entitled to support;
e) exclusive use and possession of the family home or the home of the moving party;
f) exclusive use and possession of other property of the parties;
g) an interim award of attorney fees and costs; or
h) other relief deemed necessary pending final resolution of the issues of the parties.
30. Requires a party who seeks an order for equal possession of liquid assets to file a motion that is accompanied by an affidavit setting forth:
a) the factual basis for the motion;
b) the amounts requested; and
c) the liquid assets of the parties if appropriate.
31. Requires the court, if an order for equal possession of liquid assets is granted, to provide the order that existed as of the date of the petition for dissolution, legal separation or annulment was served, unless the court finds that there is good cause not to divide those assets.
32. States that the court's division of liquid assets held by financial institutions does not invalidate applicable law or any provision of an account agreement that assesses penalties against the account holder for premature or unscheduled withdrawals of account monies.
33. States that an order for equal possession of the liquid assets of the marital property does not prejudice any final division of the marital community.
34. Specifies that temporary order rules do not eliminate the application of the preliminary injunction.
35. Allows the court to issue a temporary order without requiring notice to the other party only if it finds, based on the moving affidavit or other evidence, that irreparable injury will result to the moving party or a minor child of the parties if an order is not issued until the time for responding has elapsed.
36. Exempts the requirement for a bond in the case of a temporary order unless the court deems it appropriate.
37. Stipulates that a temporary order:
a) does not prejudice the rights of the parties or of any child that are to be adjudicated at subsequent hearings in the proceedings;
b) may be revoked or modified before the final decree;
c) that provided for equal possession of the liquid assets of the marital property does not prejudice either party's claim for temporary maintenance, child support or attorney fees; and
d) terminates when the final decree is entered or when the petition for dissolution, legal separation or annulment is dismissed.
38. Defines liquid asset used for the purposes of temporary orders as:
a) cash;
b) traveler's checks;
c) nonretirement funds in financial institutions;
d) lottery winnings;
e) cryptocurrency; and
f) coins and precious metals.
Maintenance Order Guidelines
39. Includes, in how a spouse may qualify for a maintenance order, whether the court finds that the spouse is the parent, rather than the custodian, of a child whose age or condition is such that the parent should not be required to seek employment outside of the home.
41. Allows the court to award spousal maintenance only for a period of time and in an amount necessary to enable the receiving spouse to become self-sufficient, rather than for a period of time as the court deems just.
42. Requires the amount of spousal maintenance resulting from an application of the guidelines to be the amount of spousal maintenance ordered by the court, unless the court finds in writing that applying the guidelines would be inappropriate or unjust.
43. Requires the Supreme Court to base the guidelines and criteria for deviation from the guidelines on all relevant factors currently outlined in statute, considered together and weighed in conjunction with each other.
Miscellaneous
44. Replaces child custody or custody with legal decision-making and parenting time or, when applicable, legal decision-making when referencing:
a) the requirement that the court make provisions regarding support in the instances of dissolution of marriage and legal separation;
b) pleading requirements regarding support agreements in a verified petition dissolution of marriage, annulment or legal separation; and
c) requirements, bindingness, incorporation and maintenance of a separation agreement.
45. Includes annulment to the dissolution of marriage or legal separation when referencing:
a) instructions that each be filed in accordance with the Arizona Rules of Family Law Procedure;
b) pleading requirements in a verified petition for each;
c) requirements, bindingness and incorporation into a separation agreement;
d) disposition of property;
e) requirement for a statement from the petitioner to be served to the respondent and within the statement requirement itself; and
f) the court requirement for release of a credit report.
46. Makes technical and conforming changes.
47. Becomes effective on the general effective date.
Amendments Adopted by the House of Representatives
1. Includes, in how a spouse may qualify for a maintenance order, whether the court finds that the spouse is the parent, rather than the custodian, of a child whose age or condition is such that the parent should not be required to seek employment outside of the home.
2. Requires the Supreme Court to establish guidelines for determining and awarding spousal maintenance.
3. Allows the court to award spousal maintenance only for a period of time and in an amount necessary to enable the receiving spouse to become self-sufficient rather than for a period of time as the court deems just.
4. Requires the amount of spousal maintenance resulting from an application of the guidelines to be the amount of spousal maintenance ordered by the court, unless the court finds in writing that applying the guidelines would be inappropriate or unjust.
5. Requires the Supreme Court to base the guidelines and criteria for deviation from the guidelines on all relevant factors currently outlined in statute, considered together and weighed in conjunction with each other.
Senate Action House Action
JUD 2/3/22 DPA 8-0-0 JUD 3/2/22 DP 8-0-0-2
3rd Read 2/14/22 28-0-2 3rd Read 3/17/22 54-4-2
Prepared by Senate Research
March 22, 2022
ZD/HW/sr