State Bar of Arizona Certified Family Law Specialist
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Legal FAQs

legal-books-and-gavel_skd284467sdcHow Does The Divorce Process Start?

One spouse, called the petitioner, files a document called a Petition for Dissolution of Marriage (along with several other documents) with the Clerk of the Court in his or her county of residence. The other spouse, called the respondent, is then served with the petition and other documents. If the respondent does not agree with what the petitioner is requesting in the petition, the respondent must file a response no later than 20 days (30 days if served out of state) after he or she was served with the documents.

If the respondent fails to file a written Response within the time allowed, the petitioner can apply to the court for a default. The petitioner must then file an Application for Entry of Default with the court and mail a copy to the respondent. The respondent then has another opportunity to file a response. The respondent has ten days from the date of the Application for Entry of Default to file a response. If the respondent still does not file a response within ten days from the date the Application for Entry of Default is filed and mailed, then the Petitioner can proceed with the dissolution.

 

What Is The Difference Between A Contested Divorce And An Uncontested Divorce?

If a divorce is contested, it means that the petitioner and respondent do not agree on some aspect of the case, and the respondent has filed a response to contest it. Some examples of issues that must be resolved prior to the court granting a divorce are child custody, child support, spousal maintenance, division of property and debts. If an agreement cannot be reached by both parties, the case will go to a trial before a judge who will render a decision on the unresolved issues. In Arizona there are no juries in a divorce case.

An uncontested divorce is one that the parties mutually agree on all the issues and there are no disputes.

 

When Can I File For A Divorce In Arizona?

Either you or your spouse must live in the state of Arizona for at least 90 days prior to filing for a dissolution of marriage in Arizona.

 

What Is Conciliation Services?

Conciliation services is a separate division of the court made up of trained family counselors and mediators that are available to people 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.

 

What Does “Joint” Legal Decision-Making Of The Child Mean?

Joint legal decision-making means that both parties share legal decision-making of the child or children and that neither party’s legal rights are superior to the other. Joint legal decision-making may be granted if a judge feels that the parties can communicate with one another well enough to make joint decisions regarding the child’s well-being.

If the Judge feels the parties cannot communicate with one another, then one spouse may be granted sole legal decision-making, giving that spouse the authority to make all the major decisions regarding the child, and the other spouse may have little if anything to say about it.

Primary physical custody means that one parent has the child physically placed with them and the right to make all the routine daily decisions with regard to the child’s health and general welfare.

 

How Does The Court Decide Who Will Get Physical Custody Of The Children?

Perhaps the most difficult issue in a divorce involves the custody of a child or children. If the petitioner and respondent cannot agree on custody arrangements, a judge will be forced to make the decision. The court will always decide the issue of custody looking to the “best interests” of the child as the legal and factual standard.

The judge will consider a variety of factors including but not limited to, the wishes of the child and the parents, the mental and physical health of all individuals involved, domestic violence, drug or alcohol abuse, as well as the current living arrangements of the parents and the child.

 

How Much Child Support Will I Pay Or Receive?

Child support is determined by a set standard and formula adopted by the Arizona Supreme Court. The amount of support is determined by adding together the monthly gross income for each party. From that number, a basic support amount is determined from the guidelines. The basic support amount is then affected by such things as medical insurance for the child, child care, educational costs, the age of the child, and support of other children.

 

When Is A Party Entitled To Spousal Maintenance (also known as Alimony)?

In Arizona, the law acknowledges that marriages are essentially partnerships and even though one party may not have worked outside the home, the law presumes that this spouse still contributed equally to the marriage in other ways. The other ways a spouse may have contributed to the marriage, include but are not limited to, child rearing, managing the household, and providing physical and emotional support to the wager earner.

The party seeking spousal maintenance is not automatically entitled to it. The party seeking an award of spousal maintenance must be able to prove a need for it. The court may award spousal maintenance to the party seeking it if they can show, as an example:

  1. That they lack sufficient property to provide for themselves;
  2. That they are unable to support themselves through employment;
  3. They are the custodian of a child whose age or condition is such that they should not be required to work outside the home; or
  4. That party contributed to the educational opportunities of the other spouse.

The court will also consider the number of years the parties were married and whether the party requesting spousal maintenance is of an age that there is little chance of gaining adequate employment. The other party must also have the ability to pay the spousal maintenance. If these circumstances exist, the court will determine not only the amount of maintenance to be paid but also for how long it is to be paid.

In determining the amount and duration of the support, the court will consider all relevant factors, including but not limited to:

  1. The standard of living established during the marriage;
  2. The duration of the marriage;
  3. The age, employment history, earning ability, and the physical and emotional health of the spouse seeking maintenance;
  4. The ability of the spouse from whom maintenance is sought to meet his or her needs while also meeting the needs of the spouse seeking the maintenance award;
  5. The comparative financial resources of the spouses, including their comparative earning abilities;
  6. The contributions, if any, of the spouse seeking maintenance to the earning ability of the other spouse.
  7. The extent, if any, to which the spouse seeking maintenance has reduced their own income or career opportunities for the benefit of the other spouse;
  8. The financial resources of the party seeking maintenance, including marital property apportioned to such party, and such party’s ability to meet their needs independently.

 

How Will Our Property Be Divided?

Arizona is a community property state and the law of community property guides the courts when dividing marital assets. All property acquired during marriage is presumed to be community property. The courts thus consider all property acquired during marriage to be community in nature and subject to 50/50 division. However, certain property is considered to be separate property, not subject to division, meaning it belongs solely to one spouse. Examples of separate property include, property owned prior to the marriage or property one spouse received as a gift or through a will or inheritance.

Some property that was once separate may become community property if it is considered to be co-mingled or gifted to the community. Co-mingling can occur, for example, by depositing separate property funds into the spouses’ joint bank account. Gifting could occur by using separate property funds to improve a community residence.

When the marriage is dissolved the court attempts to make an equitable, though not necessarily equal, division of the community assets and awarding each spouse their separate assets.

 

Could My Spouse Be Ordered To Pay My Legal Expenses?

The law does provide for an award of attorneys’ fees and costs in some circumstances. The award of attorneys’ fees and costs is a discretionary award left up to the trial judge hearing the case.

After considering both parties’ financial resources, the court may order one spouse to pay a reasonable amount to the other spouse for court costs and expenses, including attorneys’ fees. In reaching a decision on whether to award fees and expenses, the court will base its decision on the relative ability of each party 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.

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