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Family Law : Frequently Asked Questions

WARNING: The answers to the questions provided in this section are general in nature and are not intended to create an attorney-client relationship or to replace specific legal advice. Furthermore, the authors and creators and any and all persons or entities involved in any way in preparation of the following answers to frequently asked questions disclaim all responsibility for the legal effects or consequences of the interpretation of the information provided. Individuals intending to use these answers as an information resource should seek advice from family law professionals and experts familiar with the laws of their state, including the State of Arizona. This website is not intended to provide legal advice and should not be relied on for that purpose. DO NOT TAKE ANY ACTION BASED UPON THE INFORMATION SET FORTH ON THIS WEBSITE WITHOUT FIRST CONSULTING A FAMILY LAW ATTORNEY. READING A FAQ PAGE IS NO SUBSTITUTE FOR SPECIFIC LEGAL ADVICE.

 

Arizona Phoenix, Maricopa County, Mesa, Glendale, Scottsdale, Peoria, family law divorce attorney

Do I have to live in Arizona to be divorced here?

At least one of the parties must have resided in Arizona for the 90 days immediately preceding filing for divorce here.

 

What is a dissolution?

Divorces in Arizona are now called dissolution actions, as we are dissolving the marriage. However, most people, attorneys and judges still refer to them as divorces.

 

What if my spouse does not live in Arizona anymore?

In the situation where your spouse does not live in Arizona anymore, you can typically still seek and obtain a divorce in Arizona, but you must serve your spouse with notice of the divorce action.

 

What if my spouse has never lived in Arizona?

In the situation where your spouse has never lived in Arizona, there may be a problem in this state obtaining jurisdiction over him or her. However, the divorce may still occur here. You should consult a family law attorney.

 

If the divorce will take several months, what happens to the property and insurance policies in the meantime?

In all dissolution proceedings, the court automatically issues a Preliminary Injunction which orders both parties to refrain from disposing of (or stealing or hiding) marital property, incurring new debts on behalf of the marital community, or changing insurance policies (such as canceling health insurance) without written consent of the other party or an order of the court. Parents are similarly instructed to not take any minor children from the marriage out of state without first obtaining the written permission of both parents or court order, while the divorce is pending.

 

If a Response is filed, does this mean we have to go to Court?

No. If you at any point resolve all of your differences, you may avoid appearing in court at all. However, courts do start setting appearances, starting with the resolution management conference (an initial appearance that takes 15 minute to 30 minutes), as soon as forty days after a responsive pleading is filed.

 

Couple Fighting, legal separation, annulment, no-fault divorce lawyer in arizona

Do I have to give a reason as to why I wish to be divorced?

No. Arizona is a no-fault divorce state, which means that it is nobody's, except for you and your spouse's, business why you want a divorce.

 

What if my spouse says he/she won't "give" me a divorce?

You may get a divorce anyway. Arizona is a no-fault divorce state and a party who does not want a divorce can delay the divorce, but ultimately cannot stop a divorce.

 

Do I need an attorney?

No. There is no requirement that you hire an attorney and, in fact, many people get divorced in Maricopa County without an attorney. However, an attorney is familiar with Arizona family law and the rules of procedure, and can recommend options for you that most people do not know about and would not normally consider. An attorney on your side will help you make informed decisions, fight for your rights, know what is or is not fair and provide peace of mind, especially if the other party has hired an attorney.

 

May the court order my spouse to pay for my attorney's fees?

Yes. The court will consider each spouse's ability to pay attorney's fees, as well as the reasonableness of each party's positions on the issues. Typically, however, a court will order parties with roughly the same incomes, and have not played games or unreasonably delayed matters, to pay for their own legal fees and court costs.

 

How is Child Support Determined?

Child support here is generally determined by Arizona Supreme Court Child Support Guidelines, which set forth a formula that incorporates the income of both parents, child-care costs, health insurance costs, payment and receipt of spousal maintenance, other children for whom a party has custody or pays child support, and the amount of time the children spend with each parent. After applying the formula, parents both pay child support based upon their relative income levels as well as how much time is spent with the child or children.

 

How is child support paid?

In most cases filed today, child support is paid through the Arizona Support Payment Clearinghouse, and whenever possible, by wage assignment. Money paid directly to the custodial parent by the non-custodial parent may be considered gifts and not credited towards child support owed.

 

How is child support modified?

Either party may file for a modification when a substantial (usually a 15% or more change) and ongoing change in circumstances of the parties justify an adjustment. Most people modify child support up and down many times in the course of raising the children.

 

Can I get (or be ordered to pay) alimony, spousal support, or spousal maintenance?

Yes. Generally, a court will order one spouse to provide financial support to the other spouse when the other spouse:

1. Lacks sufficient property, including property apportioned to the spouse, to provide for that spouse's reasonable needs.
2. Is unable to be self-sufficient through appropriate employment or is the custodian of a child whose age or condition is such that the custodian should not be required to seek employment outside the home or lacks earning ability in the labor market adequate to be self-sufficient.
3. Contributed to the educational opportunities of the other spouse.
4. Had a marriage of long duration and is of an age that may preclude the possibility of gaining employment adequate to be self-sufficient.

 

What is community property and community debt?

Generally, community property/debt is property/debt acquired after the parties marry and before one party serves a petition for dissolution or marriage or legal separation on the other spouse. Parties can voluntarily (and unwittingly) alter the characterization of property/debt during the marriage. Courts divide community property and debt equitably, which generally means equally.

 

Do I have to share my retirement or pension with my spouse?

It depends. If you earned any portion of your pension, or contributed to your retirement fund, during the course of your marriage, the marital community will generally have an interest in the pension or retirement which will be divided by the court. Same with profit sharing or IRAs built up during the marriage.

 

What is sole and separate property and debt?

Sole and separate property and debt is generally property and debt that you acquired prior to marriage or after service of divorce or legal separation papers. It may also include property that you solely inherited and property given to you only as a gift. Parties can voluntarily (and sometimes unwittingly) change the characterization of property and debt.

 

How do courts determine child custody?

The court will determine legal custody (which is the right to make decisions pertaining to the child's health, safety, education, religion, and welfare) and will determine parenting time (which is the amount of time each parent has the child in his or her care). A person's parenting time can also be referred to as their access schedule or, historically, as their visitation time.

The court makes these decisions based on the best interests of the child, taking into account several factors, which include in part:

1. The wishes of the child's parent or parents as to custody.
2. The wishes of the child as to the custodian.
3. The interaction and interrelationship of the child with the child's parent or parents, the child's siblings and any other person who may significantly affect the child's best interest.
4. The child's adjustment to home, school and community.
5. The mental and physical health of all individuals involved.
6. Which parent is more likely to allow the child frequent and meaningful continuing contact with the other parent.
7. Whether one parent, both parents or neither parent has provided primary care of the child.
8. The nature and extent of coercion or duress used by a parent in obtaining an agreement regarding custody.
9. Whether a parent has taken the required parenting class.
10. Whether either parent was convicted of an act of false reporting of child abuse or neglect.
11. Domestic violence.

 

After the custody orders have been put in place, can the other parent just take my children and move away?

If you both continue to reside in Arizona, there are restrictions now for moves with the children in excess of 100 miles within state or anywhere outside of Arizona. For a better understanding of Arizona's anti-move away statute, see our site's separate page addressing this issue.

 

Can grandparents get visitation rights with their grandchildren?

Yes, under the following circumstances:

When the visitation rights would be in the best interests of the child and any of the following is true:

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1. The marriage of the parents of the child has been dissolved for at least three months.
2. A parent of the child has been deceased or has been missing for at least three months. For the purposes of this paragraph, a parent is considered to be missing if the parent's location has not been determined and the parent has been reported as missing to a law enforcement agency.
3. The child was born out of wedlock.

In determining the child's best interests the court shall consider all relevant factors, including:

1. The historical relationship, if any, between the child and the person seeking visitation.
2. The motivation of the requesting party in seeking visitation.
3. The motivation of the person denying visitation.
4. The quantity of visitation time requested and the potential adverse impact that visitation will have on the child's customary activities.
5. If one or both of the child's parents are dead, the benefit in maintaining an extended family relationship.

If logistically possible and appropriate the court shall order visitation by a grandparent or great-grandparent to occur when the child is residing or spending time with the parent through whom the grandparent or great-grandparent claims a right of access to the child. If a parent is unable to have the child reside or spend time with that parent, the court shall order visitation by a grandparent or great-grandparent to occur when that parent would have had that opportunity.

 

Can I get a custody order without giving notice to the other parent?

Sometimes. In rare circumstances, courts will grant an emergency custody order without giving notice to the other party. The party asking for the emergency order must credibly allege facts that, if proven, will show that the child is in immediate danger of irreparable, serious harm and giving notice will further the chances of harm. If the court grants the order, the court must also set a hearing within a few days so that the other parent can be heard.

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Thomas A. Morton, P. L. L. C.
2916 N. 7th Avenue, Suite 100
Phoenix, Arizona 85013
(602) 595-6870
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