Table of Contents
Divorce in Arizona with Children
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The following is a chronological list of the stages that normally occur within a Divorce in Arizona with children. A divorce that includes child custody elements can be tricky especially if the divorce is already contentious. Some of the case stages may or may not apply in your case, depending on the actions that you or your spouse take during the pendency of your divorce. These “case stages” are designed to provide a general overview of the divorce process in Arizona when custody is involved. If you have a divorce involving child custody, it is highly recommended that you hire an experienced and aggressive Child Custody Attorney that will fight for your rights as a parent. The Arizona child custody laws imply that parents should be afforded equal rights so it is imperative that you hire an attorney who will negotiate the best possible settlement for you and your family. If you are filing for divorce in Phoenix (Maricopa County) or elsewhere in Arizona, please contact The Cantor Law Group immediately so that we can provide a free initial office consultation to discuss your individual family law case.
“Legal Separation” in Arizona can either be temporary or for an unlimited period of time. This is a legal decree which is issued when the Judge determines that there is an irretrievable breakdown of the marriage, or that one spouse desires to live separate and apart from the other spouse. The benefit of the Legal Separation laws in Arizona is that it still leaves open the possibility of “Reconciliation”, and it protects both spouses from the others future debts. One spouse files an objection to the Legal Separation, it will then be amended to a “Petition for Dissolution” of the marriage and the “Divorce” process begins. A Legal Separation will also resolve “Child Custody“, “Child Support“, “Property Division“, debt issues, visitation and other concerns. However, the marriage is still intact at the end of the process. The purpose of Legal Separations versus Divorce is normally for religious reasons and to keep alive the hope that one day the marriage may be salvaged.
Divorce/Dissolution of Marriage
In Arizona, marriages “Dissolve” after the conclusion of a “Dissolution Proceeding”. This used to be formerly known as a “Divorce”. “Irretrievably broken/ irreconcilable differences” is the only grounds which are recognized for “Divorce” in Arizona. It is not necessary to find that somebody is “at fault” for the “Dissolution”. All that is required is that one party wishes to get the Divorce.
An “Uncontested Divorce” is basically one where your spouse does not file a “Response” to the “Petition for Dissolution“. This can either result in a “Default Judgment“, or they may have contacted you and simply entered into a “Consent Decree/Marital Settlement Agreement” without any official fight or “contest” taking place in Court.
A “Contested Divorce” is one in which your spouse is “contesting” your Petition for Dissolution. By “contesting” the Petition, they will have actually filed a Response with the Court. The filing of the Response will not prevent a future Consent Decree/Marital Settlement Agreement from being reached. In fact, the most likely scenario is that they will Respond and then later work out an Agreement between your attorney and theirs. This usually occurs after “Discovery” has been concluded. If a Marital Settlement Agreement is still not reached, it is at this time that a Trial will occur.
Petition For Dissolution
A “Petition for Dissolution” is the first paperwork which is filed to begin a “Divorce” action. Along with the Petition for Dissolution a “Preliminary Injunction” will be filed. In addition, some women also file a request for “Maiden Name Restoration”. An “Order and Notice to Attend Parent Information Program Classes” will also be filed with the Petition. This is an official court order and failure to obey may result in Contempt of Court. What this means is both you and your spouse must complete these classes within 45 days from the Petition being served. Also, these classes must be completed before the Judge will finalize your “Decree of Dissolution“. Our paralegals will provide you with the “Parent Information Program Notice” which includes all information necessary on where to go, costs, how to sign up, and how to get final completion notices sent to the Court.
Once all of these documents are filed with the Court, the Court will check to make sure the Petitioner has “Residency” in order for the Court to have “Jurisdiction”. One of the two spouses must live in Arizona for at least 90 days before the filing of a “Petition for Dissolution”. Once the Petition is filed, there is a 60-day waiting period after “Service of Process” on the other spouse before any “Divorce” can become final.
“Temporary Orders” differ from a “Preliminary Injunction” in that Temporary Orders are issued by the Court to lay some ground rules for the parties. These Temporary Orders may apply to who should live in the primary residence, whether “Spousal Maintenance” (i.e. Alimony) will be involved; who will pay the bills and by what percentages; where the children will reside, and things of that nature. Many times these Temporary Orders will evolve into “Permanent Orders” should the parties agree (i.e. by way of “Consent Decree/Marital Settlement Agreement“), or should the Judge order them after a “Trial” is concluded (i.e. “Final Judgment“/ “Decree of Dissolution“).
Child Custody (Temporary Orders)
In most cases during a Divorce in Arizona with children, when a “Petition for Dissolution” is filed, there is also a request for “Temporary Orders” regarding “Child Custody“. These are filed in order to maintain the status quo of where the children will live. A Phoenix Child Custody Lawyer does this in order to prevent as much upheaval and turmoil in the children’s lives as is possible. The Court looks to what is in the “best interests of the child”. These Temporary Orders will generally address where the child will live, visitation, “Child Custody“, “Child Support“, and some form of a restraining order (i.e. to prevent the parents from “kidnapping” their own children).
Temporary Orders normally take a couple of months to be heard by the Court. “Emergency Temporary Orders” can be requested by either party and normally will be heard by the Court within 24 hours. These Orders are normally based upon a showing of irreparable harm that may befall the children. Usually there is a child abuse, drug abuse or mental health issue involved in these cases. Many times these Orders are heard “Ex Parte” (i.e. with only one party appearing in front of the Judge). At the Emergency Order’s hearing, the Judge will base his information upon declarations and sometimes on brief testimony. A Return Hearing to determine the issues will be set within seven days of the Emergency Hearing. This gives the non-appearing spouse the chance to assemble their evidence in order to counter the allegations made by the Petitioning spouse. At The Cantor Law Group, we are very experienced at dealing both Child Custody Emergency and Standard Temporary Orders which will best protect your children.
One of the first papers filed along with the “Petition for Dissolution” is a “Preliminary Injunction“. The Preliminary Injunction Order is the first ruling issued by the Court during the Dissolution proceeding. This prevents you or your spouse from selling or giving away any “Community Property” (i.e. it protects both of you). It also prevents either you or your spouse from taking your children without the prior written consent of the other spouse. Lastly, it prevents either you or your spouse from harassing or disturbing the peace of one another.
Service of Process/Summons
Once a “Petition for Dissolution” is filed with the Court, the “Petitioner” must have the “Summons” and other required documents and notices Served on the “Respondent”. The best way to achieve “Service of Process” is to use a private Process Server. Once your spouse has been Served, they must “Respond” to the Petition within 20 days or the Court may grant all relief you have requested (i.e. a “Default Judgment“). If you are the person who has been served by your spouse, you need to contact The Cantor Law Group as quickly as possible. “Property Division” rights and “Child Custody” are at issue and need to be dealt with immediately!
A “Default” occurs when a spouse is not “Responding” to the “Petition for Dissolution” within the required amount of time (20 days if your spouse is an Arizona “Resident”; 30 days for an out-of-state Resident). Once the time limit has run and if your spouse has failed to respond, you can then file for a “Notice of Default” with the Court. This has the effect of asking the Court to grant everything that you have asked for in your Petition. Once you have filed the Notice of Default, your spouse has 10 days in which to Respond. If they do not Respond, then your case will be assigned to a Judge to enter a “Final Judgment” in the form of a “Decree of Dissolution“. At this “Default Hearing”, you must be present at Court, otherwise the Judge cannot sign the Decree and give you your copy. This normally takes two to four weeks to occur. If the Judge does grant the Default, then the Defaulted spouse still has the ability to file a Motion and request the Court to Set Aside the Default Judgment in order to allow them to file their Response. If the Judge grants the “Motion to Set Aside the Default”, then the process restarts. If you are the person who has had a Default Judgment entered against you, it is important that you contact The Cantor Law Group immediately so that we can attempt to rectify the situation.
“Discovery” is the term used to describe the process by which each party is allowed to examine all possible evidence that may support their claims. In Arizona, both spouses must disclose, in writing, all legal and factual grounds for their alleged defenses and claims. In the “Notice of Witnesses” they must disclose the name of all witnesses and exchange any documents that will be used at trial. If all items are not fully disclosed, then they may be precluded from being introduced at trial.
“Interrogatories” are written questions that each party must answer in writing. “Depositions” are Court ordered interviews that are normally conducted with both attorneys present, along with a Court reporter. Sometimes one spouse will be present in the room to assist his/her attorney with expanding on any answers given by the other spouse or witness. A “Request for Admissions” is a written list of questions asking for very specific admissions that will save time in the preparation of the case (i.e. “are you the father of the child”, etc.). Lastly, a “Request for Production of Documents” is a specific request for certain documents that either side believes will be beneficial to their case. The importance of all of these Discovery tools is that they solidify all of the issues (on both sides) and help the case proceed more rapidly to a “Marital Settlement Agreement/Consent Decree“. Obviously, a Settlement Agreement is much more preferable than “Trial“. However, if a Trial is eminent, then all of these Discovery measures are absolutely necessary to secure the most favorable result to the parties. At The Cantor Law Group, we have an extensive computer database of Interrogatories and Deposition questions at our disposal. In addition, we have some of the most probing and thorough Requests for Production of Documents currently available within the legal field.
Spousal Maintenance (i.e. Alimony)
In the State of Arizona, “Spousal Maintenance” is not designed to be punitive in nature. It’s overall purpose is to assist a spouse in maintaining the standard of living enjoyed during the marriage, and to assist in the transition from living together as a unit to being two independent people. Numerous factors are considered under Arizona law in determining if Spousal Maintenance should be awarded to either spouse. The following is a partial list of reasons for awarding Spousal Maintenance:
- The ability of the spouse seeking Maintenance to independently meet their needs (either through separate property or other factors)
- Inability to support oneself through employment
- Inability of the spouse to work due to the young age of the child/children
- Whether one spouse contributed either financially or through time to the educational opportunities of the other spouse
- Length of the marriage coupled with older age which now precludes the possibility of gaining sufficient employment
- Length of time it would take for a spouse to acquire sufficient education for proper employment
- Both spouses future earning capacities
- Standard of living during the marriage
- Length of the marriage
- The ability of the spouse providing the support to maintain their standard of living while paying out spousal maintenance
- Whether either spouse destroyed, wasted, concealed, or gave away any Community Property
- The comparative earning abilities of each spouse
- The ages of the spouses
- The physical and emotional condition of each spouse
- Jobs held by either spouse during their marriage
- The educational/ vocational skills possessed by the spouse seeking Maintenance
Property Division/Community Property
Arizona is a “Community Property” State. “Separate Property” (property brought in prior to the marriage) is retained by the owner of the property. In addition, it is normally held that an inheritance and separate gifts are also to be considered Separate Property. It is the general proposition that all property and debt acquired during the marriage (including wedding gifts) through the joint resources or funds of the spouses, are considered to be “Community Property”. This includes property acquired by either spouse outside of the State of Arizona if that property would have been Community Property if acquired within the State of Arizona while married. Marital misconduct or “Fault” is irrelevant when dividing up the property. In addition, the fact that only one spouse may have held a job during the marriage is also irrelevant when dividing up Community Property.
Community Property also includes pensions, benefits, stock plans, accrued vacation, deferred compensation, frequent flier miles, publishing rights, copyrights, patents, or anything else of value acquired during the marriage. The Court may also take into consideration the wasteful spending of Community Property assets, destruction of assets, and concealment or fraudulent transfers of Community Property when making the determination of the “Property Division”. Other issues examined by the Court include: length of the marriage; how much property is available for Division; the financial requirements of each of the parties based upon age, health, and children’s needs (see “Child Support“); education level and ability to obtain work and things of that nature. Under certain circumstances, the Judge can order repayment of Separate Property contributed to improve Community Property assets (i.e. inheritance money used to improve the house). Lastly, the Court has the ability to place a lien upon a spouse’s Separate Property in order to secure payment of things such as “Spousal Maintenance“, “Child Support“, or any other order under the Judge’s “Final Judgment” per the “Decree of Dissolution“.
When one party strongly believes that the marriage can be saved, they can petition the Court to order marriage counseling. This order results in the Dissolution proceedings being suspended for up to 120 days while the Court determines whether “Reconciliation” is possible and likely.
Child Custody (Permanent Orders)
A good Phoenix Child Custody Lawyer knows that when awarding permanent “Child Custody”, the Court considers numerous factors as to what is in the best interests of the child”. These factors are as follows:
- The preference of the child
- The ability and wishes of each parent to provide a frequent and loving relationship between the child and the other spouse
- The preference of the parents
- The child’s attachment to his/her home and school
- Physical and mental well-being of the child and the parents
- The relationship between the parents and child and between the child and siblings
- Whether or not there has been evidence of child abuse in the past
- Whether or not there has been evidence of domestic violence in the household in the past
- Any duress, coercion or unfair methods used to obtain a custody agreement
- Which spouse was the primary childcare provider
- Any criminal convictions for sex crimes or drug/alcohol abuse
Once Child Custody is “contested”, then the Court must first decide all other issues dealing with “Property Division” and “Spousal Maintenance”. In many cases, the spouses will have their attorney file a written agreement providing for “Joint Custody”. This is normally determined to be in the best interests of the child. This written agreement is normally called a “Joint Parenting Plan”. This plan helps to determine Custody issues and visitation schedules (i.e. for holidays, weekends, birthdays, etc.). Arizona child custody laws direct the Judge to determine whether Joint Custody is feasible (i.e. with regards to the distances in which the parents live apart, works schedules and things of that nature). In certain cases, the Court will order Joint Custody over the objection of one of the parents (this is not uncommon). In addition, the Court can order visitation rights to the grandparents if they have filed the proper paperwork with the Court.
Courts generally wish to hear testimony by an expert witness when deciding Child Custody issues. In many cases, it is wise to do a “Custody Evaluation” or “Dispute Assessment” which includes a “Request for Appointment of Mental Health Expert”. The Mental Health Expert will conduct a variety of tests on not only the children, but also the parents. They will then interview the parents, children, and any other witnesses which may assist the expert on preparing his recommendation for the Judge. They are also allowed to use information from confidential sources when preparing their Report and providing their opinion. These Reports can either be agreed upon by the parties or the Judge can order the Custody Evaluation over both parties’ objections. At The Cantor Law Group, we have access to numerous expert witnesses who are available to best serve our clients and assist the Judge in making a determination regarding what is in the “best interests of the child”.
Remember, the most important determination in awarding Child Custody (either Sole or Joint Custody) is what is in the “best interests of the child”. This is the way it should be! Phoenix Child Custody Lawyers, The Cantor Law Group, we can help assure that all information that you wish to present to the Court regarding the “best interests of the child” are fully taken into consideration.
The Judge can order either spouse to pay “Child Support”. (This is money to be used to house, feed, and educate the child). Determination of Child Support is based upon numbers, and not who was the “better parent”. The following factors are considered:
- The financial resources of the child
- The standard living the children were enjoying at the time before the marriage dissolved
- Any medical, educational, or mental health needs of the child
- The financial resources and debts of both parents
- Whether any jointly held property had been destroyed, concealed, fraudulently disposed of, or whether any excessive expenditures were made
- The amount of time the child spends at each parent’s house (if there is Joint Custody) and any related expenses
Child Support is normally determined by specific Arizona Supreme Court Guidelines. These guidelines are based upon mathematical formulas that look at numerous factors. These factors can include the incomes of the parties, the amount of time spent at each parent’s residence, who pays for the children’s health insurance, and other Child Support obligations or support of other natural children living with a spouse. At The Cantor Law Group, we use a specially designed computer program known as “Cassandra”® which can quickly and accurately determine the amount of Child Support due to, or from, each spouse.
When determining the amount of Child Support owed, income is normally the most important factor. This not only includes standard paycheck wages, but also bonuses, commission payments, overtime, disability payments, social security income, income from rental properties, and income from intellectual property such as royalties. The Court can also view stock option plans (which are non-retirement) as income. If one spouse is not working, the Judge can still assume that this non-custodial parent is capable of obtaining a job at minimum wage for 40 hours a week. Exceptions include if the parent is under the age of 18 years of age and is currently enrolled in high school, or if there is other evidence that is presented to the Court as to why an individual cannot work.
If one of the spouses is self-employed, then normally very extensive “Discovery” is required to determine their true income. This is due to the fact that cash receipts are normally involved, and many personal expenses are covered as business expenses. It is important to have a knowledgeable law firm such as The Cantor Law Group to examine all aspects in order to accurately determine “true income”. Many times tax returns will not match the true income and a simple examination of a prior loan application (or other financial documents) will pin down a spouse as to what they were truly earning.
All Child Support orders must assign one or both spouses the responsibility of paying for medical insurance coverage, and for payment of all non-covered medical expenses. In addition, any income of a new spouse or new significant other will not be considered as to whether one parent should be paying their obligation. In other words, it is irrelevant if your new spouse is a multi-millionaire, your old spouse still needs to pay for their Child’s Support.
Don’t forget, Child Support orders can be “Modified” if there is a change in circumstance. At The Cantor Law Group, we are very knowledgeable and have conducted numerous Modification Hearings. (See Post Judgment Enforcement/ Modification).
Court Appointed Attorneys for Children (Guardian Ad Litem):
Many Courts will appoint attorneys for children (i.e. Guardian Ad Litem) if the Judge finds that the parent’s position may be in conflict with the “best interests of the child”. Sometimes this will occur if the child is insisting on being with one parent, although a Judge may feel that it conflicts with their best interest. This also helps prevent the parties from playing “tug-of-war” with their child. The Guardian Ad Litem may agree with 90% of what each attorney wants, but may disagree adamantly with the other 10%. He will then give his honest opinion and fight for what he believes to be in the “best interests of the child”. Many times this will result in a compromised position that satisfies not only the child’s best interest, but also the parents’ and the Court’s general wishes.
Consent Decree/Marital Settlement Agreement:
If the parties agree to a Settlement prior to going to “Trial”, they can file a “Marital Settlement Agreement” with the Court. This serves as a contract between the parties concerning all issues. This document is normally titled a “Stipulation to File Consent Decree”. It must be signed by both parties and filed with the Court (along with the “Decree of Dissolution”) for the Judge to review, grant, and sign. The Court will normally adopt all of the terms set forth in the Agreement, unless there are any glaring issues. It is common for a Consent Decree to occur when one spouse does not wish to fight the original “Petition for Dissolution“. Before any Marital Settlement Agreement is entered into, you should seek the advise of The Cantor Law Group to make sure that you are not giving away any future rights which you did not anticipate. This Marital Settlement Agreement is often used to settle issues regarding “Child Custody”, “Child Support”, “Property Division”, and “Spousal Maintenance”.
After all “Discovery” has been completed, then the lawyers will sit down and attempt to negotiate a “Marital Separation Agreement/Consent Decree”. If this is not possible, then they will file a document with the Court to have the case set for “Trial”. Most cases normally take one or two days for Trial, however, more complex cases involving “Child Custody” and/ or large amounts of assets may take up to a week in length. Divorce Trials in Arizona are done without a jury, and are called “Bench Trials”. The Judge hears all of the evidence and then issues a “Final Judgment” in the form of a “Decree of Dissolution”.
The “Petitioner” is the first one to proceed and present evidence at Trial. This is called “Direct Evidence”. Once the Petitioner and the Petitioner’s witnesses have presented their evidence, then the “Respondent” spouse’s attorney is allowed to “cross-examine” the witness with regards to their statements. After being cross-examined, then the Petitioner’s attorney gets a second chance and conducts “redirect examination”. Once all of the Petitioner’s witnesses have testified, then the Respondent spouse will present their evidence. They will do this through “direct evidence” testimony and then they will be “cross-examined,” followed by a final “redirect examination”. Each side has the burden of presenting to the Judge by a “Preponderance of the Evidence” that their claims are justified. Preponderance of the Evidence means that a fact is more likely than not to be true. This means that scales just barely tilt in a party’s favor to determine an issue. (i.e. 51%).
During the Trial, both the Petitioner’s attorney and the Respondent’s attorney have a chance to “object” to evidence or testimony. If no objection is made, then there will not be a “record” preserved for purposes of an “Appeal” at a later date. It is important to have a knowledgeable Family Law attorney who is skilled at the art of Trial advocacy on your side. At The Cantor Law Group, we have extensive Jury and Bench Trial experience resulting in our being highlighted in the Bar Register of Preeminent Lawyers®.
After all evidence has been presented, then the Judge will ask for “closing arguments”. It is at this time that both sides have a chance to summate their client’s position and argue that they have satisfied their burden of proof. The Petitioner’s attorney is allowed to argue first, and the Respondent’s attorney is allowed to argue last. The Judge will normally take the case “under advisement” and issue a written ruling at a later date. It usually takes only a week or two for the Judge to make a ruling, however, he or she has up to 100 days by law in which to submit his or her “Final Judgment” and “Decree of Dissolution“.
Decree of Dissolution:
This is the “Final Judgment” or “Decree” which will restore you and your former spouse’s status of unmarried persons. They will also set out the final rulings regarding “Child Custody“, “Property Division“, and other important issues regarding the termination of the marriage. Some of these have specified effective dates, and others take effect immediately. (See “Final Judgment“).
Once the Judge has reviewed all of the evidence, he will submit his “Final Judgment” in the form of a “Decree of Dissolution”. The document will normally address very specific issues regarding “Property Division“. Even though in a “Community Property” state, such as Arizona, assets should be divided down the middle, this is just in theory. In other words, one spouse may receive a more valuable asset in exchange for taking on more debt. Most commonly, this occurs when one spouse takes over the house but is now solely responsible for the large mortgage payment.
Often times one spouse will be allowed to keep their pension or retirement plan in exchange for giving up another, more valuable asset. If the parties cannot agree on how to adequately divide these assets, the Judge can order the sale of certain assets with the proceeds to be distributed evenly. Naturally, “Child Custody” issues (i.e., what is in the best interests of the child will control whether or not their primary residence should be sold. (See Child Support and Spousal Maintenance). A wife’s former or maiden name can be changed back upon request in the “Petition for Dissolution“. When sitting down to prepare your Petition with The Cantor Law Group, simply ask to have your name changed back, and we will accommodate you quickly and efficiently.