2022 Amendments to Title 25

Senate Bill 1383 was signed by the governor on June 14, 2022 and becomes effective on September 24, 2022 (90 days after the legislature adjourned sine dine). The bill amends several sections of chapter 3, adds new section 25-314.01 and repeals and replaces section 25-316. All of the substantive changes are detailed below.

Most important changes for practitioners

If you’re short on time, here are the most important changes you need to know about:

  • New procedure for cancelling a legal separation: If the parties are legally separated and later reconcile, there is a new process for terminating the legal separation decree. Any property awarded to either spouse in the legal separation decree or acquired during the period of legal separation remains separate, unless stated otherwise. You also have to address what happens to property payments and support payments that were ordered in the legal separation decree but haven’t been fulfilled.
  • Formal adoption of summary consent decree process: The summary consent decree process that was being trialed in Maricopa County is now codified in § 25-314.01. But there are some changes—the filing fee is now 50% of the combined petition and response fee, and the decree can be submitted to the court earlier than 60 days (but cannot be entered until after 60 days).
  • Minor changes to temporary orders: Provisions regarding temporary orders have been moved to § 25-316. “Physical or emotional” harm has been deleted as a requirement for exclusive use of property, and there is now specific authority for exclusive use and possession of other property, not just the marital residence. The definition of “liquid assets” now includes cryptocurrency and “nonretirement funds in financial institutions.”
  • Spousal maintenance guidelines: The new § 25-319 authorizes the supreme court to establish spousal maintenance guidelines, and limits the court to awarding maintenance “only for a period of time and in an amount necessary to enable the receiving spouse to become self-sufficient.” The court may deviate from the guidelines if the application is inappropriate or unjust (like child support). The actual guidelines haven’t been created yet.

If a statute has been amended but isn’t mentioned below, it’s because the changes are only cosmetic—e.g., changing custody to legal decision-making and parenting time, or adding annulment to divorce and legal separation.

25-311. Jurisdiction; filing of petition

Pleadings now controlled by ARFLP: Previously, § 25-311 delineated how a pleading would be captioned (“in re the marriage of…”) and said that a decree of divorce or legal separation affected the legal status of both spouses, and could not be awarded to only one of the parties. That language has been removed and replaced with a reference that all proceedings will be “filed in accordance with the Arizona Rules of Family Law Procedure.”

25-312. Dissolution of marriage; findings necessary

Irretrievable breakdown finding: The definition of “irretrievable breakdown” has moved from § 25-316 to § 25-312 (but haven’t changed).

Required findings: Previously, one of the required findings under § 25-312(A) was that the court “has considered, approved and made provision for child custody, the support of any natural or adopted child common to the parties of the marriage entitled to support, the maintenance of either spouse and the disposition of property.” Now that language has been moved under its own subsection (E) and states that the court “shall make provisions for….” So it’s no longer a required finding, but the court still has to do it. I’m not sure there’s any substantive difference. The amendment also replaces child custody with “legal decision-making and parenting time.”

25-313. Decree of legal separation; findings necessary

Required findings: Same change as above—replaces “has considered, approved or made provisions for child custody…” with “shall make provisions for legal decision-making and parenting time….”

NEW Procedure for converting legal separation to divorce: There is now a formal procedure to terminate a legal separation and restore the parties to their previous state of un-separatedness. The parties must file a stipulated order under the legal separation case number stating the following:

  1. That both parties agree to terminate the legal separation, that they desire to restore their status to legally married and that they do so intelligently, voluntarily and without duress, coercion or undue influence.
  2. That on entry of the stipulated order terminating the decree of legal separation, the marital community is re-formed as if the parties became married on the date of the entry of the termination order, at which time the legal separation no longer exists.
  3. That any property awarded to either party as sole and separate property under the terms of the decree of legal separation as well as 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 property of the acquiring party and the sole and separate debt of the incurring party.
  4. That any property payments due from one party to the other under the terms of the decree of legal separation are deemed waived, unless otherwise specified in the termination order.
  5. That any parenting orders entered in the decree of legal separation under chapter 4 of this title no longer apply.
  6. That any provisions for child support or spousal maintenance entered in the decree of legal separation no longer apply. Except as to any sum owed to the state pursuant to section 46-407 and unless otherwise agreed, each party is waiving any claims for amounts that may remain due and owing from the time period in which the support provisions under the decree of legal separation were in effect.
  7. 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.

If you’re terminating a legal separation, be sure to address the following in the termination order:

  • Whether any property awarded to either spouse in the legal separation decree is being restored to community or joint property.
  • Reserving the right to any property payments ordered in the legal separation decree, lest they be waived.
  • Reserving the right to any overdue support payments owed at the time the termination order is entered.

[If the parties are legally separated, terminate the legal separation, and then subsequently get divorced, would a spousal maintenance award be based on the length of the original marriage, or only from the date of the termination order?]

[This process may also provide an avenue to have the court formally adopt the terms of a separation agreement—in the form of a termination order or PSA incorporated into a termination order.]

25-314. Pleadings; contents; defense; joinder of parties; confidentiality

Adds annulment to the list of petitions that can be filed under chapter 3, article 2, and specifies that the only defense to an annulment petition is that the marriage is not void.

25-314.01. Summary consent petition and decree

NEW This is an entirely new section that provides statutory authority for the summary consent decree process that was being piloted in Maricopa County. To use the summary consent decree process, the parties must:

  • File a combined petition and response for divorce or legal separation, stating that formal service of process is waived and that all issues are resolved by agreement. The filing date is also the date of service, since both parties are signing the initial petition/response.
  • Pay a reduced filing fee, which is 50% of the combined fee for a petition and answer, “together with any additional filing fees assessed by the county.”
  • The parties may submit their consent decree to the court anytime after the combined petition and response is filed, but the court still has to wait the required 60 days under § 25-329 before signing the decree.
  • At any time before the entry of the decree, either party may file a notice of intent to withdraw from the summary consent decree process, which shall then be considered “as a withdrawal from an agreement in accordance with the Arizona Rules of Family Law Procedure.” If the parties jointly withdraw from the summary consent decree agreement, the court will dismiss the case.

[What does it mean that a withdrawal from the summary process is considered “a withdrawal from an agreement in accordance with the Arizona Rules of Family Law Procedure.” Does that mean the party challenging the agreement has the burden under Rule 69? Instructions unclear.]

25-315. Preliminary injunction; effect

Subsections (C) through (G) have been deleted from § 25-315, re-worked and inserted into § 25-316, discussed below. The remainder of § 25-315 regarding the preliminary injunction remains the same, other than minor grammatical corrections.

25-316. Temporary orders; definition

Section 25-316 used to contain information about the irretrievable breakdown finding. Those provisions have moved into § 25-312 and this section is now all about temporary orders.

Types of temporary orders: In a proceeding for divorce, legal separation or annulment, a party may request the following types of temporary orders:

  1. An order for equal possession of liquid assets of marital property.
  2. Temporary spousal maintenance.
  3. Temporary legal decision-making or parenting time.
  4. Temporary child support.
  5. Exclusive use and possession of the family home or the home of the moving party.
  6. Exclusive use and possession of other property of the parties.
  7. An interim award of attorney fees and costs.
  8. Other relief deemed necessary pending final resolution of the issues of the parties.

The provision regarding exclusive use no longer refers to “physical and emotional harm” that may otherwise result if one party isn’t granted exclusive use.

Interestingly, the amendment deletes the change-in-circumstances requirement for modifying temporary orders—now it just says that a temporary order “may be revoked or modified before the final decree on a showing by affidavit of the facts necessary to revocation or modification of a final decree under section 25-327.”

NEW Liquid assets: The amendment expands the definition of liquid assets to include the following:

  1. Cash
  2. Traveler’s checks
  3. Nonretirement funds in financial institutions
  4. Lottery winnings
  5. Cryptocurrency
  6. Coins and precious metals

Previously, the definition only included cash, traveler’s checks, cash in financial institutions and lottery winnings.

[The definition of liquid assets now clearly includes brokerage accounts, which can often be substantial and tricky to divide. Cryptocurrency can also be difficult to divide, and few judges and attorneys understand how it works.]

25-319. Maintenance; guidelines; computation factors

Subsection (A) has been reformatted for clarity. “Unable to be self-sufficient through appropriate employment” has been replaced with “lacks earning ability in the labor market that is adequate to be self-sufficient”—which I suppose is the same thing? “Custodian” has also been replaced with “parent.” Perhaps no substantive changes, but one could argue that “parent” is a broader category than “custodian.”

NEW Spousal maintenance guidelines: The amendment authorizes the supreme court to establish guidelines for determining an award of spousal maintenance, and limits the court to awarding maintenance “only for a period of time and in an amount necessary to enable the receiving spouse to become self-sufficient.” The amount and duration determined by the guidelines is the presumptive amount unless the court finds that application of the guidelines is inappropriate or unjust.

[We’ll see what the spousal maintenance guidelines look like. But the bigger change in my opinion is limiting maintenance to “a period of time and [] an amount necessary to enable the receiving spouse to become self-sufficient.” There is no longer any doubt that spousal maintenance is intended to be rehabilitative, rather than compensatory for one spouse’s non-monetary contributions to a marriage.]

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