Every Petition for Dissolution of a Non-Covenant Marriage should contain a statement alleging that “the marriage is irretrievably broken.” But what does that mean? In Arizona, this is the threshold issue that the Court must address in determining whether to grant or deny a divorce in a non-covenant marriage. Despite how important the concept is, it gets surprisingly little attention in actual practice.
Arizona is a no-fault state. That means that a party to a non-covenant marriage wanting to get a divorce does not have to show infidelity, addiction, abandonment, lengthy separation, or any other specific reason for why they want to be divorced. They only have to show that the marriage is “irretrievably broken.” Generally that means that the party does not believe that the marriage could be fixed or restored (even if the Court provided counseling services at no cost – known as the Conciliation Court program).
There are different rules when spouses are parties to a covenant marriage. Spouses in a covenant marriage would have obtained (or converted to) a specific type of marriage license that had the effect of restoring fault rules upon divorce. A very small percentage of marriages are covenant but you can usually be certain about whether your marriage is a covenant marriage by looking at your marriage license – it will typically state the word “covenant” right on it. Parties to a covenant marriage must have grounds for a divorce that are more specific than simply stating the marriage is “irretrievably broken.” Some examples of statutorily-recognized reasons to dissolve a covenant marriage are a responding party’s commission of adultery, perpetration of physical or sexual abuse, their abuse of drugs or alcohol, or that the parties have been residing separate and apart for a certain length of time. Alternatively, if the parties agree to a dissolution of marriage, that is also a recognized reason.
In a non-covenant marriage, how do you prove that your marriage is irretrievably broken? Very simply, in fact. At the start of testimony at a final divorce hearing, the petitioning party will be asked by the Court, or their attorney if represented, if they believe the marriage is “irretrievably broken with no possibility of reconciliation.” That party will generally answer, “yes,” and that will be the end of the story. In other words, the Court will generally take that party’s word for it that there is no way the marriage could be restored. In most instances, by the time of a final divorce hearing, the other party will agree that the marriage is broken. If there is disagreement between the parties about whether the marriage is irretrievably broken, the Court must hear testimony on the issue. That happens very, very rarely. If the parties are proceeding by agreement by what is called a “Consent Decree,” the document itself will contain the “irretrievably broken” language necessary for the Court. Consequently, in the vast majority of cases, simply stating that the marriage is, in fact, irretrievably broken, is the only thing the Court has to hear.
This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice, please feel free to contact family law attorney Lindsay A. M. Olivarez at www.udallshumway.com or contact an attorney in your community.