Introduction
Family law attorneys do much more than divorces. But, for most family law lawyers, that area remains one of the most common “actions” we help our clients take.
During our first meeting, I ask them why they are here-why they need my services. When our visit is for a divorce, either to file for one or because their spouse has, usually the first story from my client is a description of what has led to the divorce-the “why” a divorce is happening, often focused on “who” caused it.
This account may include descriptions of financial irresponsibility, lack of involvement with parenting, significant differences in parenting approaches, disinterest in the relationship, infidelity, religious differences, and on. It may include a description of all the efforts my client has made to keep the marriage intact, without ultimate success. Sometimes, the background may even include accounts of domestic violence toward my client or their children.
In other words, my client starts with an account of who (usually the other spouse) is to blame for the marriage coming to an end. Whose “fault” it is.
That word “fault” is important in this context, because Arizona, like most states now, is a “no-fault” divorce state. For most marriages, the court’s threshold inquiry is not why the marriage failed, but whether it has failed beyond repair. Under Arizona Revised Statutes § 25‑312, a court must enter a decree of dissolution if it finds that the marriage is irretrievably broken, meaning there is no reasonable prospect of reconciliation. Understanding what evidence is legally relevant-and what is not-is essential for litigants, attorneys, and judges alike.
Important clarification here: Many behaviors that may not be relevant to whether the legal standard for divorce is met MAY BE relevant to other issues, like those affecting the children, or the financial issue of marital waste, and more. This article does not address those separate issues.
This article examines the legal standard for an irretrievably broken marriage in Arizona, the types of facts courts consider in making that determination, and the many issues that-while emotionally charged-are legally irrelevant to meeting the statutory standard. This article addresses what the “no fault” standard for divorce actually means.
The Legal Standard: A.R.S. § 25‑312
Arizona Revised Statutes § 25‑312(A)(3) requires the court to find that “the marriage is irretrievably broken” before granting a divorce. The statute explicitly defines this as a determination that “there is no reasonable prospect of reconciliation.”
In most cases, the standard is easily satisfied. If both spouses state under oath that the marriage is irretrievably broken, the court must make that finding. If one spouse alleges that the marriage is irretrievably broken and the other does not deny it, the court likewise proceeds with dissolution.
Only when one spouse affirmatively denies under oath that the marriage is irretrievably broken does the court conduct a hearing to assess whether reconciliation is reasonably possible. Even then, the court may continue the case for no more than sixty days and may order conciliation services, but must ultimately make a finding on the issue.
What Is Relevant to Establishing an Irretrievably Broken Marriage
- A Spouse’s Sworn Testimony That the Marriage Cannot Be Repaired
The single most important piece of evidence is credible testimony-by one or both spouses-that they believe the marriage cannot be saved. Arizona courts generally give significant weight to a spouse’s subjective belief that reconciliation is impossible. In practice, courts rarely deny a divorce when even one party credibly testifies that the marital relationship is beyond repair.
- Length and Nature of the Marital Breakdown
While not strictly required, evidence that the parties have experienced a sustained breakdown in the marital relationship can support a finding that the marriage is irretrievably broken. Relevant considerations may include prolonged emotional disconnection, ongoing conflict, or repeated unsuccessful attempts at reconciliation. These facts go directly to whether a reasonable prospect of reconciliation exists.
- Failed Reconciliation or Counseling Efforts
If the parties have attempted marriage counseling, conciliation court, or other reconciliation efforts without success, that history may be relevant-particularly when one spouse denies that the marriage is irretrievably broken. The statute expressly authorizes courts to consider such efforts when evaluating whether reconciliation is reasonably possible.
- Unilateral Desire to End the Marriage
Arizona law does not require mutual agreement to divorce. A marriage may be irretrievably broken even if one spouse wishes to remain married. The relevant inquiry is not whether reconciliation is theoretically possible, but whether there is a reasonable prospect of reconciliation in light of the parties’ current positions. Courts routinely find a marriage irretrievably broken based on one spouse’s firm and credible intent to end the relationship.
What Is Not Relevant to Establishing an Irretrievably Broken Marriage
- Fault or Marital Misconduct
Because Arizona is a no‑fault divorce state, fault is legally irrelevant to establishing that a marriage is irretrievably broken. Allegations of adultery, substance abuse, abandonment, cruelty, or financial misconduct are not required-and, standing alone, add nothing to the irretrievability analysis. The court does not assign blame for the marriage’s failure.
This is a critical distinction for litigants accustomed to fault‑based divorce systems. While misconduct may be relevant in other contexts (such as child custody or waste of community assets), it is not necessary to prove that a marriage is irretrievably broken.
- Which Spouse “Caused” the Divorce
Closely related to fault, the question of who caused the breakdown of the marriage is legally irrelevant. Arizona courts do not inquire into moral responsibility for the marriage’s demise when determining irretrievability. The law focuses exclusively on the present viability of the marital relationship, not its historical origins.
- Objections Based on Religion, Morality, or Personal Beliefs
Personal, moral, or religious objections to divorce-no matter how sincerely held-do not prevent a court from finding that a marriage is irretrievably broken. The legal standard is secular and pragmatic. If the evidence shows no reasonable prospect of reconciliation, the court must grant the divorce regardless of subjective beliefs about the sanctity of marriage.
- Practical or Financial Hardship Caused by Divorce
Arguments that divorce will create financial hardship, emotional distress, or logistical difficulties do not bear on whether a marriage is irretrievably broken. These concerns are addressed separately through spousal maintenance, property division, and parenting orders-not through denial of dissolution itself.
Special Consideration: Covenant Marriages
An important exception exists for covenant marriages. If the parties entered into a covenant marriage, A.R.S. § 25‑312 requires the court to find one of the specific fault‑based grounds listed in A.R.S. § 25‑903, unless both spouses agree to the divorce. In such cases, irretrievable breakdown alone is insufficient.
However, covenant marriages are relatively rare, and most Arizona divorces involve standard, non‑covenant marriages subject to the no‑fault framework described above.
Conclusion
Even with the “no fault” concept in hand, it is hard for a person to let go of the circumstances that triggered the end of what was once a relationship so strong that it led to marriage. Even at trial over other disputed issues, clients still want the judge to hear what happened. It is a good reminder to judges and lawyers that the “system” is a legal one, but relationships are not governed by law. They are governed by emotions, and, in a divorce, those emotions are running high.
Over time, our society started to recognize that there was likely more harm than good in having parties in court blaming each other for why their marriage is ending. The determination was made, in law, to allow individuals to exit marriages that no longer function, without proving why it happened, and thus ending the need to put it all on display, for the “world” (and especially their kids) to see. In Arizona, establishing that a marriage is irretrievably broken is intentionally straightforward-a credible assertion by either party that the marriage is irretrievably broken and that a divorce should be granted is all that is needed.