In Arizona, Does it Matter Who Files for Divorce First? 

Clients often ask, “Does it matter who files for divorce first?”  The short answer is that it makes little legal difference who starts a divorce case by filing a Petition for Dissolution of Marriage.

Arizona is a “No Fault” State

First, a bit of history: In days long since passed, in order to end a marriage in Arizona, a Husband or Wife was required to provide a legal basis for the divorce. An example would be a Wife that charged her Husband with cruelty, and a Husband that counterclaimed with a charge of adultery. This, of course, required the Family Court to listen to testimony and consider evidence related to every variety of marital misconduct. The Arizona Legislature changed the Family Law statutes to eliminate the need to provide a reason for ending a marriage. Thus, Arizona joined the cadre of states known as “no fault” divorce states since it is no longer a legal requirement that one of the spouses provide the Court with a reason for divorce. Now, all of the states offer some version of a “no fault” divorce filing, though the majority of states still allow you to go the “fault route” and provide a reason for the divorce, if you choose.

Why does this matter? As Arizona is a “no fault” state, there will not be any inferences drawn on who is the filing party, or why they are filing. The filing spouse does not have the burden to prove a reason for the divorce. The only question to be answered is whether the marriage is irretrievably broken with no reasonable prospect of reconciliation. It is, however, critical to consider that the requests within a Petition and how the Petition is served can create a tone for the remainder of the process.

Win the Race to the Courthouse, Pay More Money

The unfortunate reality is that it can be more expensive to get divorced than it is to get married. The cost to obtain a marriage license in Maricopa County is currently $76.00. The cost to file a Petition for Dissolution in Maricopa County is $338.00. If your spouse files the Petition for Dissolution and you need to file a response, then you will be paying $269.00. Thus, it can cost eight times as much to end the marriage then to create it. The party that loses the race to the courthouse saves $69.00. This is one of the few differences between being the filing spouse and the responding spouse.

What About a Joint Filing?

In some states, spouses can jointly file one Petition in uncontested cases. The spouses’ settlement agreement is typically already prepared and filed jointly with the Petition. Arizona does not allow joint filings in divorce cases. Spouses are treated similarly to a plaintiff and a defendant in a civil lawsuit. This is also true at the time of trial. The Petitioner presents his or her case to the Court first, followed by the Respondent. This can be a minor procedural advantage depending on the nature of the case.

Forever the Petitioner

The spouse that files his or her Petition will forever be known as the “Petitioner.” The non-filing spouse will be called the “Respondent.” These titles do not change regardless of any future requests made after the initial paperwork is filed with the Court.

There are a few subtle differences in being a Petitioner and a Respondent. It is far more important that before any Petition is filed, you are prepared. If you have questions about the dissolution process in Arizona, you should speak with an experienced Arizona family law attorney who can review your case and guide you through the process.

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 regarding Does It Matter Who Files for Divorce First, or other family law issues, please feel free to contact Jonathan D. Brooks at 480.461.5300, log on to udallshumway.com, or contact an attorney in your area. Udall Shumway PLC is located in Mesa, Arizona and is a full service law firm. We assist Individuals, families, businesses, schools and municipalities in Mesa and the Phoenix/East Valley.