Frequently Asked Questions & Legal Terms
To begin the divorce, a Petition for Dissolution of Marriage, i.e., the petition, must be filed by one person. The petition must be served on the person’s spouse by a process server authorized in Arizona. As an alternative to personal service, the person receiving the petition may sign an Acceptance of Service which acknowledges receipt of the petition.
After service or signing the Acceptance of Service, the person receiving the petition must file a written response within 20 days if served in Arizona, or 30 days if served outside of Arizona. If a person does not respond to the petition at all, a default will be entered and the divorce decree can be entered without further notice to that person.
There is a 60-day waiting period before a divorce decree may be signed by a judge. This time starts to run from the date the person is served or accepts service.
If a response is filed to the petition, then the case must be scheduled for a trial before a judge, who will hear the case and decide the issues and grant the divorce. The parties may enter into a written agreement and submit that to a judge instead of having a trial.
A divorce may not be granted by mail. At least one person must attend a final hearing at which time a judge signs the divorce decree. Once the decree is signed, it is filed with the Clerk of Court immediately and the divorce is final. There is no further waiting period.
Before beginning a divorce, it is always wise to consult with an attorney, whether you will be retaining an attorney initially or instituting the divorce action on your own.
It is important for you to be informed about the applicable laws that pertain to your specific situation. You also will want to discuss with the attorney the specific facts relating to your situation so that the attorney may provide advice and counsel on what options are available for you going forward.
In Arizona, a divorce is called a “Dissolution of Marriage” proceeding. Arizona residents who have lived in Arizona for more than 90 days may petition the court for a dissolution of marriage. If both parties and all minor children have resided in the state for more than six months, Arizona will have jurisdiction over the divorce, property, custody, and support. In most cases, in order for Arizona to have jurisdiction over child custody matters, the children involved must have lived in Arizona for at least six months.
If you have lived in Arizona for more than 90 days but your spouse has never lived here, the court may grant a dissolution of the marriage, upon proper service on your spouse, and divide property and debts in Arizona. If your spouse never lived in Arizona, the court cannot order your spouse to pay child support or spousal maintenance, or to pay debts.
The only ground for obtaining a divorce in Arizona is that the marriage is irretrievably broken and cannot be saved. The popular term is “no-fault” divorce. If the marriage is a covenant marriage, grounds for a divorce may be required.
Legally, there is no preference given to the initial filer in a divorce action. However, there may be some distinct practical benefits in being the person planning the filing.
A party to a divorce is not legally required to have a lawyer. If you and your spouse agree on all issues, and have one attorney draft the appropriate pleadings and documents, the divorce can be processed. However, an attorney can represent only one of you. Divorcing spouses should never, ever be represented by the same lawyer under any circumstances. There are a number of options available for couples that have decided to end their marriages, and it is indeed possible to save time and money, but having one lawyer for both parties is not one of them. Having one lawyer represent both you and your spouse is a recipe for disaster, and is in fact, impermissible according the Arizona Rules governing the ethical behavior of attorneys.
Never to allow a spouse to persuade you that a divorce can be equitably handled by sharing one attorney. Both of you will come out losers. Before he or she signs the final pleadings and documents, the unrepresented spouse should ask another lawyer to review them.
A legal separation is also an order entered by a court. The legal procedure for obtaining a legal separation is the same as for a divorce.
A decree of legal separation means that the parties live apart, but neither party can remarry. The decree of legal separation, similar to a divorce decree, also divides the property and debts, provides for support (if appropriate), and ends the community for purposes of community property or debts.
Very few legal separations – as opposed to divorce – are pursued, because there are very few reasons to do so. A Decree of legal separation accomplishes the same resolution of issues as a divorce Decree: child custody and access, child support, spousal maintenance, asset distribution, debt allocation and responsibility for attorneys’ fees. Notably, a legal separation does not sever the marital status, so neither party can thereafter legally marry someone else. If one of the spouses wants to convert the legal separation to a divorce, it will be converted. This can occur whether a Decree of Legal Separation has been entered or not.
Child Custody is determined by a judge according to the factors set forth in the statute. The applicable statute is Arizona Revised Statutes §25-403.
The factors the judge considers are the wishes of the parents and the child (if old enough to express a preference); the interaction of the child with the parents and siblings; the child’s adjustment to home, school, and community; the mental and physical health of the parents and the child; which parent is more likely to allow frequent and meaningful contact with the other parent; which parent or parents have provided primary care of the child; and the nature and extent of coercion or duress used by a parent in obtaining an agreement for custody.
Joint legal custody means the parents jointly make major decisions about the children such as religion, education, health care, and residence. Sole custody means one parent makes these decisions.
With either joint legal or sole legal custody, there must be an arrangement for the time-sharing of the child or children.
The access plan is the most critical document in a custody negotiation. The Court will generally abide by the agreement of the parents, if the plan is in the best interests of the children. If the parents cannot agree, the Court will listen to the evidence and determine a plan. Sometimes, with an access schedule issue, the Court will order a settlement conference, conciliation services counseling and/or parenting conference. A parenting conference would then produce a report recommending an access plan for the Court’s consideration.
A parent is entitled to visitation with a child unless there is a finding by the judge that such visitation will endanger seriously the child’s physical, mental, moral or emotional health.
Conciliation Services is a separate division of the court consisting of trained family counselors and mediators that are available to assist litigants going through a divorce or other family disputes to assist in resolving those disputes without the necessity of a trial. Conciliation services are offered free to the public.
Of course, but it may not be with the children. Barring an agreement between you and the other party, you will normally need a Court order to allow you to permanently relocate with the children. Your first act should be to review the divorce decree, if it has been issued. Certainly, relocating with the children without the other parent’s written consent during the pendency of a divorce action is prohibited without Court approval. Since such a shift of the children would normally have a profound negative impact on the children and the other parent, you would carry a high burden in persuading the Court that such a relocation is best.
In a word: equitably. Many sub-issues revolve around the general topic of asset distribution and debt allocation. Some of the elusive factors to consider are whether the asset or debt is community or separate, incurred for the benefit of the community, community contributions to separate property, prenuptial agreements, purpose of the acquisition of the asset or incurring of the debt, and other factors.
Community property is property acquired by either spouse during the marriage, except by gift, inheritance or as income from property owned prior to the marriage.
In a dissolution of marriage, the community and jointly owned property is divided “equitably” between the parties. Generally, equitably is defined as equally. Community property may be waived by a pre-marital agreement.
Separate property is property owned before the marriage, inheritances, gifts, and income from separate property. In a dissolution of a marriage, each party is awarded his or her separate property.
Debts incurred during the marriage are also generally community debts, even if only one of the spouses signed for the debt. The exceptions are debts incurred for the purchase of real estate, leases and guarantees on debts which must be signed for by both spouses. Community debts are the obligation of both of the spouses and both are liable for them in the event of a dissolution of marriage. The judge or the parties can allocate responsibility for payment of the community debts in a dissolution of marriage decree. However, the other spouse may still be liable to the creditor for the debt if it is not paid, as a contract liability.
That depends on various factors, including (a) whether the business was yours prior to marriage, (b) whether such a business increased in value during the marriage and, if so, (c) whether that increase can be proven attributable to market forces (separate) or your effort (community). If you started the business during marriage, it will likely be considered community property. If the business or any portion of it is community property, and you want to retain the business, you will likely be required to offset your spouse’s interest in that community portion with other community property or the purchase of the other’s interest. Personal service businesses are very difficult to appraise, since the value of the business may be closely tied to the ability of the owner-spouse, and valuation experts often calculate dramatically different value estimates.
A document titled The Preliminary Injunction is served with the Petition for Dissolution. The Preliminary Injunction takes effect upon its service, along with the Petition, on the other spouse. It prohibits certain actions and requires other actions, including continuing any such insurance. It also addresses dealing with community property and children. However, since the preliminary injunction is general in language, it is often helpful to obtain more specific temporary orders.
At least until the Decree is entered, any health insurance coverage in effect at the time of filing the Petition needs to be maintained. The cost of any such coverage should be considered in determining any possible temporary spousal maintenance.
An Order of Protection (O/P), properly based, can be obtained before or after a Petition for Dissolution is filed. If before, it can be sought in Superior Court or Justice Court. If after, it must be filed in Superior Court. If filed in Justice Court and a divorce petition is subsequently filed, the O/P will be transferred to Superior Court for all further proceedings. In a marital setting, the O/P (not an injunction against harassment) is the proper action. Forms for filing and processing an O/P can be obtained at the Court or, along with other forms, at the Superior Court’s website. They are effective as soon as they are served on the other party. You should also ensure that your local police department has a copy.
Child support in Arizona is determined by the Arizona Child Support Guidelines. These guidelines are located in Arizona Revised Statutes §25-320. Child support is based on the gross income of each of the parents. Income includes money from all sources including employment, retirement, disability, investments, businesses and so forth. The income of both parents is combined, then the basic child support is determined, and each parent is assessed a part of the child support based on the percentage his or her income is of the combined income.
Additions are made to the child support for health insurance for the child or children, daycare expenses, children over the age of 12, and extraordinary expenses. After the child support is determined, the parent paying the child support is given an adjustment based on the amount of time spent with the child (costs associated with visitation). If there are transportation expenses because a parent lives out of state, these are also allocated.
The judge also determines which parent is entitled to the dependency deduction on his or her taxes for the child or children. This is generally based on the percentage of the child support that is being paid by each parent. Deductions for the child or children can be alternated between the parents, based on the percentages of the child support paid by each parent.
An Order of Assignment is entered in most cases. This Order directs the employer or payer of income to deduct the child support from the salary, wages or other payments to the parent ordered to pay child support and to pay it directly to the Child Support Clearinghouse. The payments are forwarded from the Clearinghouse to the parent entitled to receive the support.
In Arizona, alimony is called “spousal maintenance”. Spousal maintenance may be ordered if the requirements of the statute are met. The applicable statute is Arizona Revised Statutes §25-319.
To receive spousal maintenance, a person must show that he or she meets one of the following requirements: (1) Lacks sufficient property to meet his or her reasonable needs; (2) Is unable to support himself or herself through appropriate employment, or has custody of a child whose age and condition precludes outside employment, or lacks sufficient earning ability to support himself or herself; (3) Contributed to the educational opportunities of the other spouse; or (4) Had a marriage of long duration and is of an age which may preclude the possibility of gaining adequate employment to support himself or herself.
If one of these requirements is met, then the Court considers a list of eleven different factors, which do not include marital misconduct.
The factors include the length of the marriage, the age and earning ability of each spouse, the need to contribute to the education of children, the standard of living during the marriage, the extent to which either spouse contributed to the earning ability of the other or reduced his or her own income or career opportunities, the financial resources of each party, the time necessary to obtain education or training to become employable, and excessive expenditures or destruction of community property.
The monthly amount and length of time for payment of spousal maintenance is based on these factors. The judge considers the length of time that the spouse receiving the spousal maintenance will need to become employable and/or self-supporting, if this is possible.
During the divorce process, Temporary Orders are often sought when the parties cannot agree on how community expenses, debts and assets are to be managed pending the divorce action. In those cases, the Court will often, upon a party’s request, enter an early order that addresses debt management and other issues needing temporary management.
In Arizona, the law does provide for an award of attorneys’ fees and costs under some circumstances.
In deciding whether an attorney’s fees award is appropriate, the court considers both parties’ financial resources, including each party’s relative ability to pay their own fees and expenses.
The general purpose behind an award of fees and costs is to allow the party with the lessor financial means an equal opportunity to present their case. It may also be used as a sanction depending on the positions taken by a party throughout the litigation.
Divorce mediation is a process whereby you and your spouse meet with an individual, the mediator, for as long as necessary to identify and resolve the issues existing between you. A mediator may be a lawyer. Once an agreement is reached, the lawyer/mediator writes it up, and may recommend that each of you take it to a lawyer for review, if lawyers were not present at the mediation.
Mediation of disputed issues is generally advised. Court mediation is available at a reasonable cost for custody and access plan issues. Private mediation of all issues is available at a higher cost and is advisable if both parties are willing to negotiate their respective positions. Another option is to ask the Court to appoint a judge pro tem to conduct a settlement conference, at which a settlement agreement and Decree can be promptly drafted and entered, upon full agreement. Even a partial agreement at a settlement conference allows more input by the parties in fashioning a Decree than a trial.
Some divorce mediators are attorneys, but it is best for each spouse to have an attorney, independent of the mediator. Mediation often involves the parties’ attorneys. A skilled mediator should be adept at allowing the parties to dominate and directing the lawyers to refine written agreements, confer with his/her client about the legal factors (privately) and assist in the mediated settlement. If attorneys are not present, it is important that each parties’ attorney review the agreement reached to ensure that no areas have been overlooked. In addition, because many mediators are not lawyers, a lawyer is still needed to draft the final agreement and/or court documents required to finalize a divorce.
A premarital (prenuptial) agreement is an agreement entered into by the parties before they get married. If the necessary requirements for such an agreement are met, a premarital agreement will be upheld and followed by the Court in a divorce or if one spouse dies. A prenuptial agreement is a binding agreement entered into prior to the marriage in which the parties, in however much detail they wish, set forth what will happen to their income and assets in the event the marriage ends in death, divorce, or separation.
To be valid, a prenuptial agreement must be in writing and signed by both parties before marriage. The agreement must also be voluntary, and not unconscionable. Each party must disclose to the other all of his or her property and financial obligations or waive that disclosure. Generally, each person must have an attorney represent them in the signing of an agreement so that the agreement will be determined to have been entered into voluntarily.
A prenuptial agreement may waive (give up) community property rights that would otherwise exist after the marriage of the parties. A prenuptial agreement may also waive or eliminate the right to spousal maintenance in the event of a divorce. Such an agreement may give up rights a spouse would have in the event of the death of the other spouse.
To qualify for an annulment, you essentially have to prove that (a) your spouse committed significant (material) fraud upon you before you were married and (b) you relied on the fraudulent act, to your detriment, in proceeding with the marriage. The key element is that it must relate to the reason or purpose of the marriage. It must be material enough to prove that had you known of this beforehand, you would not have married.
Some states recognize a marriage in cases where couples live or co-habitate together for a certain amount of years. However, common law marriages do not apply to every state. States that recognize common law marriage include the following: Alabama, Colorado, District of Columbia, Georgia (if created prior to 1997), Idaho (if created before 1996), Iowa, Kansas, Montana, New Hampshire (for inheritance purposes only), Ohio (if created prior to 10/1991), Oklahoma, Pennsylvania (if created before 9/2003), Rhode Island, South Carolina, Texas and Utah. Same-sex relationships or marriages are never recognized as common law.
Pursuant to A.R.S. § 25-111, Arizona does not recognize common law marriages created within the state. However, Arizona does recognize common law marriages that are validly contracted in other jurisdictions. See A.R.S. § 25-112.
At Sheinson Law Group, P.C., we schedule initial consultations for one hour. However, we often spend more than an hour with the potential client when needed to ensure that all of their questions are answered and that they are fully apprised of their current circumstances and what possible strategies are available for them when deciding what is best when going forward. Of course, there is no extra charge for the additional time spent. And, any documents or files that we review in preparation for the Initial Consultation are also performed free and without cost to the potential client.
FAMILY LAW LEGAL TERMS
- Arizona family law for same sex couples
- Child custody (move away cases)
- Child custody (permanent orders)
- Child custody (temporary orders)
- Child support
- Collaborative divorce
- Community Property
- Consent decree/marital settlement agreement
- Contested/uncontested divorces
- Court appointed attorneys for children (guardian ad litem)
- Decree of dissolution
- Default judgment
- Discovery process
- Divorce in Arizona with children
- Divorce in Arizona without children
- Divorce with children
- Divorce without children
- Divorce/dissolution of marriage
- Equal parenting time
- Father’s rights
- Final judgment
- Grandparents’ Rights
- Gray divorce (parties are over 50)
- Guardianship/non-parent custody
- Interstate Child Custody and Child Support (UCCJEA and UIFSA)
- Irretrievably broken/irreconcilable differences
- Joint legal decision-making
- Legal decision-making
- Legal separation
- Long distance divorce
- Maiden name restoration
- Military divorce
- Mother’s rights
- No fault
- Orders of Protection
- Parenting time
- Parenting time agreement
- Post judgment enforcement/modification
- Post trial remedies
- Postnuptial agreement
- Preliminary injunction
- Prenuptial agreement/premarital agreement
- Prenuptial Agreements
- Property division/community property
- Property settlement agreement
- Reconciliation request
- Same sex adoption
- Same sex divorce in Arizona with children
- Same sex divorce in Arizona without children
- Same sex family law
- Service of process/summons
- Sole legal decision-making
- Spousal Maintenance
- Spousal maintenance/alimony
- Supervised parenting time
- Temporary orders
- Termination of parental rights/adoption
PERSONAL INJURY/MEDICAL MALPRACTICE LEGAL TERMS
At Sheinson Law Group, our focus is on providing high-quality service and customer satisfaction – we will do everything we can to meet your expectations. CONTACT US today for a complimentary phone consultation.