In Arizona, if the marriage is not a covenant marriage (see below for our discussion about covenant marriages), it does not matter whether a spouse has cheated, even though technically adultery is still a crime in Arizona, at least as of 2016. The adultery laws are rarely enforced. With the exception of those few covenant marriages that exist in Arizona, divorce is a “no fault” process, meaning that the judge will not be concerned with things like adultery, abandonment, abuse, etc., at least with regard to whether a divorce can be granted and how the assets and debts will be divided.
The judge cannot give you or your spouse more of the assets if one of you cheated. The judge cannot order you or your spouse to pay more of the debt if one of you cheated. The law is cold and objectively written: assets and debts must be divided equitably (which usually means equally) without regard to who caused the breakup of the marriage or how badly one’s spouse behaved in the marriage. The primary exception is if the judge finds that one of the following transpired:
Actual damages and judgments from conduct that resulted in criminal conviction of either spouse in which the other spouse or a child was the victim
- Excessive expenditures
- Abnormal expenditures
- Destruction of community or joint property
- Concealment of community or joint property; or
- Fraudulent disposition of community or joint property.
If any of the above are found, the judge can unequally divide the assets or the debts. But the judge still just may permit the party to be divorced even if he or she cheated and even if you do not want the divorce to proceed. And the fact that adultery took place, as stated above, will not affect the entitlement to a divorce nor how the assets are divided. As also mentioned above, if you have a covenant marriage, the adultery can enable you to obtain a divorce more quickly. Covenant marriages are rare; it is unlikely that you have one.
If you have one, you would know it, because you would have had to opt-in to the covenant marriage status. If you have a covenant marriage in Arizona, obtaining a divorce is more complicated because your situation must fit within one of the special categories for obtaining a divorce. Notwithstanding any law to the contrary, if a husband and wife have entered into a covenant marriage in Arizona the court cannot not enter a decree of dissolution of marriage unless it finds any of the following:
- The respondent spouse has committed adultery.
- The respondent spouse has committed a felony and has been sentenced to death or imprisonment in any federal, state, county or municipal correctional facility.
- The respondent spouse has abandoned the matrimonial domicile for at least one year before the petitioner filed for dissolution of marriage and refuses to return. A party may file a petition based on this ground by alleging that the respondent spouse has left the matrimonial domicile and is expected to remain absent for the required period. If the respondent spouse has not abandoned the matrimonial domicile for the required period at the time of the filing of the petition, the action shall not be dismissed for failure to state sufficient grounds and the action shall be stayed for the period of time remaining to meet the grounds based on abandonment, except that the court may enter and enforce temporary orders pursuant to section 25-315 during the time that the action is pending.
- The respondent spouse has physically or sexually abused the spouse seeking the dissolution of marriage, a child, a relative of either spouse permanently living in the matrimonial domicile or has committed domestic violence as defined in section 13-3601 or emotional abuse.
- The spouses have been living separate and apart continuously without reconciliation for at least two years before the petitioner filed for dissolution of marriage. A party may file a petition based on this ground by alleging that it is expected that the parties will be living separate and apart for the required period. If the parties have not been separated for the required period at the time of the filing of the petition, the action shall not be dismissed for failure to state sufficient grounds and the action shall be stayed for the period of time remaining to meet the grounds based on separation, except that the court may enter and enforce temporary orders pursuant to section 25-315 during the time that the action is pending.
- The spouses have been living separate and apart continuously without reconciliation for at least one year from the date the decree of legal separation was entered.
- The respondent spouse has habitually abused drugs or alcohol.
- The husband and wife both agree to a dissolution of marriage.
As long as you fit within one of those categories, you can obtain a divorce in Arizona even if you have a covenant marriage. If you do not have a covenant marriage, as stated earlier, it is very easy to obtain a divorce. However, the more important and complicated aspect of a standard divorce in Arizona is how the court will divide assets and debts and whether spousal maintenance (alimony) will be ordered. This aspect is almost never affected by whether a spouse had an affair during the marriage.
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