March 8, 2019
Arizona is a “no-fault” divorce state, meaning that a couple seeking a divorce in Arizona can experience a relatively easy and private dissolution of their marriage. While divorce is never truly easy on a couple, by allowing for a marriage to be dissolved if it is shown that a marriage is “irretrievably broken” the spouse filing for divorce does not need:
- The consent or permission of the other spouse;
- To air the couple’s “dirty laundry”;
- Spend significant time and resources gathering substantial amounts of evidence and/or a great number of witnesses to prove the other spouse’s “bad conduct.”
(Note: If a divorcing couple entered into a covenant marriage or converted their existing marriage into a covenant marriage, then the spouse seeking the divorce will have to show certain circumstances exist allowing the court to enter an order of divorce if the other spouse is not willing to consent to the divorce).
Instead of showing that one party or the other is to blame for the dissolution of the marriage, the spouse seeking the divorce must merely prove to the court by a preponderance of the evidence that the marriage is irretrievably broken. But what does this phrase “irretrievably broken” mean, and how can a spouse wanting a divorce prove a marriage is “irretrievably broken” if the other spouse will not consent or agree to the divorce?
“IRRETRIEVABLY BROKEN” IS NOT DIFFICULT TO PROVE
Consider a hypothetical couple in which the husband files for divorce from his wife. The husband files his divorce petition and declares within the divorce petition that his marriage with his wife is “irretrievably broken.” The wife, however, disagrees: she files a responsive pleading and denies that the marriage is irretrievably broken. Furthermore, she makes efforts to get the husband to dismiss the divorce petition and reunite.
When this hypothetical couple’s case reaches the court, if the husband persists in his declaration that the marriage is “irretrievably broken” the court will, in almost every case, find that the marriage is in fact irretrievably broken and the divorce should be granted. Why is this the case even if the wife wants the marriage to continue? Most courts will consider a marriage to be “irretrievably broken” if there are no real prospects for reunification for the couple.
Since a marriage obviously requires two willing participants in order to continue to exist, a court really has no other option but to grant a divorce if the husband in this hypothetical situation clearly and unequivocally states that he has no intention or desire of reunifying with his wife and believes the marital relationship to be irretrievably broken.
CAN AN ARIZONA COURT DENY A DIVORCE PETITION?
Even in a no-fault state like Arizona, a court can still deny a divorce petition if the court is not satisfied that the evidence and testimony presented to it establish that the marriage is irretrievably broken and that reunification is not likely. If the spouse filing for divorce wavers in his or her assertion about the status of the marriage – if he or she says, for instance, that there “might” be a chance things could work out or he or she “may” wish to give the marriage another chance – the court can either order the parties to attempt reconciliation through a counseling-type effort or dismiss the petition outright. Even if the divorce petition is dismissed, however, the filing spouse may usually refile the petition if circumstances do not improve and the marriage still appears to be broken.
The Monahan Law Firm, PLC is available to assist spouses seeking a divorce in Arizona, especially those whose spouses are not willing to consent to the divorce. We can also advise spouses seeking a dissolution of a covenant marriage. Contact Arizona family law attorney Patrick J. Monahan today by calling (623) 385-3190.