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Family Law FAQs

WHAT IS CONCILIATION SERVICES?

The State of Arizona offers Conciliation services free of charge through the Superior Court system. This process can be used by either party in an attempt to reconcile. Conciliation Services can also assist in mediating child custody and visitation issues. Mediation is an attempt to get the parties to agree to a custody plan and visitation schedule.

WHAT SHOULD I DO IF I AM A VICTIM OF DOMESTIC VIOLENCE?

If your spouse has been physically abusive to you, you should obtain an Order of Protection from the Court before or after filing for a divorce. If there is an immediate threat of danger to you or your child, you should contact the police.

WHEN DOES THE COMMUNITY TERMINATE?

On the date you or your spouse is served with divorce papers (or the date one party accepts service), the community legally ends. Any property or debt acquired after the date of service is the separate property or debt of the person who acquired it.

WHAT ARE THE RESIDENCE REQUIREMENTS?

The residency requirement is that at least one of the parties (not necessarily both) have lived in the State of Arizona for at least ninety (90) days prior to filing the divorce action. If custody of a common child is at issue, usually the child must have been in the State of Arizona for the six months preceding any filing (there are exceptions).

IS THERE A WAITING PERIOD?

A divorce cannot be granted until at least 60 days have passed since you or your spouse has been served with the Petition. This is a minimum period of time. In most cases, uncontested matters are actually completed three to four months after service. Contested matters can take from 6 months to 2 years depending on the complexity of the case and the court's calendar. The waiting period is a good time to work out the details of custody, visitation, support and property/debt division.

HOW DOES THE COURT DETERMINE CHILD SUPPORT?

Child Support Guidelines have been prepared for the State of Arizona which apportion child support based on the gross incomes of both parents. In general, your monthly expenses such as debts, house payments and car payments are not taken into consideration in awarding child support. Adjustments are made for the cost of supporting children from other relationships, child care, health insurance and parenting time.

HOW DOES THE COURT DETERMINE CUSTODY?


There is no legal presumption in Arizona favoring either parent or in favor of joint custody versus sole custody. Each case is ideally determined on its own merits. There are two types of joint custody, "joint legal" and "joint physical" custody. Joint legal custody means that both parents have decision-making authority. Sole custody means that one parent has the final decision-making authority. The "primary residential or custodial parent" generally has the children more of the time, subject to visitation by the other parent. Joint physical custody means an almost 50-50 division of the children's time. In either type of joint custody, the parents are expected to communicate and confer regarding major decisions about the children, such as education, child care, medical and religious decisions.

WHAT IS VISITATION (PARENTING TIME)?

In Arizona, visitation is referred to as parenting time. If you and your spouse can come to an agreement as to the details of your parenting time plan (the schedule of days and times that each will have the children), the court will usually approve the plan.

HOW MUCH ARE ATTORNEYS' FEES?

The exact fee for your case depends upon the services you require from the attorney. If there are any contested issues or disputes on any issues, the fee will be higher than uncontested matters. The more contentious things are between you and your spouse, the more expensive the case will be and the longer it will take to finalize. More work is also required where issues are complex, where experts must be consulted, and where depositions and discovery are extensive.

HOW DOES THE COURT ALLOCATE DEBTS?

Customarily, married people have debts that they have acquired together during the course of the marriage. If you or your spouse still have debts which were incurred before you were married, those debts will generally be the separate debt of the spouse who created them. It is important to be aware that the way you and your spouse choose to divide your joint debts (i.e. in who's name the debt is carried) is not binding on the person or place to whom you owe the debt.

HOW DOES THE COURT DIVIDE PROPERTY?

Arizona law provides that the division should be "equitable" , which usually means about equal. Other factors include whether or not property is community or sole and separate in nature. If you and your spouse can agree on this division, the Court will usually approve your written agreement. If you cannot agree, the Court will divide your property and debts for you at the time of trial.

WHAT IS SPOUSAL MAINTENANCE (ALIMONY)?

In Arizona, either spouse may be awarded spousal maintenance (alimony) for a period following the divorce if that spouse meets certain criteria. The criteria includes the spouse's earning history, whether or not the spouse stays home with an infant, and the length of the marriage, the age of the spouse, etc. Spousal maintenance is taxable to the receiving spouse paid and the payor can deduct it from taxable income.

CAN I GET TEMPORARY RELIEF?

If you and your spouse have not agreed to the children's custody and visitation on a temporary basis (until the divorce is final), or have not agreed who will continue to make payments for the family's basic needs and payments of debts, you may need temporary orders. Temporary Orders stay in effect while divorce is pending. A short hearing is held to determine with orders are necessary.

WHAT IS AN ANNULMENT?

A legal annulment is a different than an annulment granted by a Catholic or other church. In Arizona, the only grounds for a legal annulment are that the marriage is null and void due to some impediment that prevented a valid marriage from taking place. In general, the grounds for annulment are difficult to show except in very specific, narrow circumstances.

What is a Covenant Marriage and do I have one?

Beginning in 1998, people getting married had the option of entering into a Covenant Marriage. (If you were married prior to August, 1998, you do NOT have a covenant marriage.) To enter into a covenant marriage, premarital counseling is required, and the parties sign a special declaration declaring that they have chosen a covenant marriage. When a covenant marriage is chosen, a divorce may be granted only after certain conditions are met. Those conditions include:

  • one party committing adultery
  • one party being convicted of a felony
  • physical or sexual abuse by one spouse against the other, or against a child of the parties
  • abandonment of the home by one spouse for at least one year
  • separation of the parties for at least two years
  • regular abuse of drugs or alcohol by one spouse
  • or that both parties agree to the divorce

Family Law

What is the difference between an agency adoption and an independent adoption?

In an agency adoption, the prospective adoptive parents contact an adoption agency to start the process, and the agency acts as an intermediary between the adoptive parents and the birth parents, matching them up and guiding them through all of the necessary hurdles to finalization. In an independent adoption, the birth parents and adoptive parents locate each other and work together independently to accomplish the adoption without the benefit of agency involvement, although typically a lawyer is hired to make sure that all legal requirements are met.

Each type of adoption process has advantages and disadvantages. Using an agency can be beneficial because agencies are familiar with adoption requirements, which can be overwhelming to prospective parents and birth parents alike. Agencies can also provide counseling and other support services to the birth and adoptive families, both before and after the adoption. However, some agencies have selection criteria that may screen out certain prospective parents, and waiting times can be very long.

Independent adoptions may allow prospective adoptive and birth parents more control over the adoption process. All parties may have a greater opportunity to get to know each other. Adoptive parents may be able to circumvent an agency's selection criteria and shorten the waiting time by going the independent route. On the other hand, birth parents may not receive counseling in an independent adoption, which could lead to greater uncertainty and even the possibility of a change of heart. Additionally, independent adoptions are not legal in all states, so it is essential to check applicable state laws before choosing this option.

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Under what circumstances will the court award alimony or spousal support?

The obligation of spouses to support each other does not necessarily terminate when they divorce. If the divorce will leave one spouse with very little income and the other with enough to contribute to the low-income spouse's support, the court will usually award alimony, at least temporarily.

Historically, spousal maintenance was awarded to homemaker wives, and paid by wage-earning husbands; that is no longer always the case. Now, either spouse may be awarded alimony if the other has the more substantial income and the recipient spouse's income is insufficient to support him or her at the level to which the spouses were accustomed during the marriage.

Spousal support is often awarded in cases in which one spouse has put his or her education or career on hold in order to raise the parties' children while the other climbed the career ladder and achieved a higher income. In such cases, the alimony will often be temporary, providing income for a period of time to enable the recipient spouse to become self-supporting. This temporary, or rehabilitative, spousal support enables the recipient spouse to further his or her education, receive job training, reestablish himself or herself in a former career or complete childrearing responsibilities, after which time he or she can be self-sufficient.

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How is the amount of child support calculated?

Each state has developed guidelines that help establish the amount of child support that must be paid. The guidelines vary from state to state, but are all based on the parents' incomes, expenses and the needs of the children. In some states, the guidelines allow judges greater discretion in determining the amount of child support that must be paid, but in other states any variance from the guidelines must be carefully justified or it can be readily overturned on appeal. Often, the guidelines are set out in a chart-type format that calculates the child support amount as a percentage of the paying parent's income that increases as the number of children being supported rises. The purpose of guidelines is to aid the judge in determining child support amounts. Judges are free to deviate from the guidelines when there are good reasons to do so. If, for instance, one party or a child has higher than average expenses, the amount can vary. Or if the court determines that the paying parent is voluntarily earning less than he or she could for the purpose of minimizing the child support obligation, the judge can calculate the amount of child support based on what the payer is capable of earning.

Despite the variations from state to state, there are some general factors that are almost universally considered by judges issuing child support orders, including

  • The child's standard of living before the parents' separation or divorce
  • The paying parent's ability to pay
  • The custodial parent's needs and income
  • The needs of the child or children, including educational costs, daycare expenses and medical expenses (health insurance or special health care needs)

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Once a court issues a child support order, can the amount of support that is paid be changed?

The amount of child support may be modified under certain circumstances and through a variety of methods. The simplest method is for the parents to agree to a change, but the court must approve even an agreed-upon change in order to be enforceable.

When there is no voluntary agreement, the party seeking the change must request a court hearing at which each side will present, usually through counsel, the reasons supporting and opposing the modification. The court usually will not grant the request unless there has been a significant change in circumstances that justifies the change, such as a significant increase in either parent's income through a remarriage, a job change or a considerable change in the needs of the child. Changes in the child support laws, too, may justify a change in previously issued orders. Also, under certain circumstances, an increase in the cost of living can warrant an upward modification of child support. Generally, periodic increases can be provided for in the original order so that the parties do not need to make repeated court appearances each time there is a significant change in the cost of living.

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How is child support collected if the person responsible for paying it moves to another state?

Under the Revised Uniform Reciprocal Enforcement of Support Act (RURESA), an order for support issued by the family court in one state will be enforced by the family court in another state to which the paying parent moves if certain conditions are met. Under RURESA, the custodial parent has two options for how to proceed to collect support.

Under the first option, the custodial parent who receives the support must register the order for support in the county where the payer parent now lives. The family court will move to enforce the order and make the non-custodial parent pay. The payer parent can, however, go to court in his or her new home state and argue that the child support amount should be modified, and if he or she is successful, the child's home-state court may be stuck with the reduced amount.

Alternatively, the custodial parent can go to the family court in his or her home state to commence an action to enforce the support award issued by that court. The enforcement agency that serves that court will notify the payer's new home state so that enforcement actions, such as wage withholding, can be implemented there. Under this method, the payer cannot get the award modified in his or her new home state. The new state's court can, however, determine that the amount of child support ordered is too high and require that only a portion of it be paid, but the original state does not have to accept the reduced amount. The payer remains liable for the full amount as originally ordered, and if he or she fails to pay it, the original state may issue an arrest warrant, and the delinquency can show up on the payer's credit report.

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What are parents' obligations to their children?

Every parent has the duty to provide his or her children with the basic necessities of life, including food, clothing and shelter. This duty usually terminates when the child is emancipated, when the child graduates from high school, when the child enters the military or when the child marries, but the support obligation can extend beyond that point if the child is unable to support him or herself. The law generally does not dictate the level of support that is provided when the children live with both parents, but when, through divorce or other circumstances, the child is living with one parent, there are laws specifying the amount of financial support the non-custodial parent must provide.

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How does a court decide which parent will get custody of a child?

When the parents cannot agree on a custody arrangement, the court will make the decision for them. When determining the child's best interests, the court may consider may factors, including

  • The child's age
  • The child's gender
  • The child's physical and mental health
  • The parents' physical and mental health
  • The parents' lifestyles
  • Any history of abuse
  • The emotional bonds between the parent and the child
  • The parent's ability to give the child guidance
  • The parent's ability to provide the basic necessities, such as food, shelter, clothing and medical care
  • The child's routines, including home, school, community and religious
  • The willingness of the parent to encourage a healthy, on-going relationship between the child and the other parent
  • If the child is above a certain age, the child's preference
  • Who has been the child's primary caretaker?

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What is the legal divorce process like?

Some divorces are simple and can be handled with a minimum amount of court involvement. However, most divorces are more complex and can take many different courses. The following is a basic outline of the divorce process.

  • One spouse contacts a lawyer, who prepares a complaint setting forth the reasons why for the divorce.
  • The complaint is filed with the court and served on the other spouse, together with a summons that requires the spouse's response.
  • The served spouse must respond within the time limit prescribed or it will be assumed that he or she does not contest the petition, in which case the petitioner will be granted the requested relief. The response, or answer, must express the relief that the answering spouse requests.
  • The parties, through their attorneys, engage in "discovery," during which they exchange all documents and other information relevant to deciding the issues in the divorce such as property division, spousal support, child support, etc.
  • The parties may attempt to reach a settlement, which can be initiated voluntarily or facilitated by the parties' lawyers or a neutral third party, such as a mediator.
  • If a settlement is reached, the agreement is submitted to the court.
  • If the judge approves the agreement, he or she issues a divorce decree that includes the terms to which the parties agreed. If he or she does not approve it, or if there has been no agreement, the case will go to trial.
  • At trial, the attorneys present the evidence and arguments for both sides; the judge decides the issues and grants the divorce.
  • Either or both parties can appeal the judge's decision to a higher court.

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What kinds of assets are divided in a divorce?

The parties in a divorce can agree to the division of (or the judge will divide) all marital or community property owned by the parties. Marital property generally includes most of the property the couple acquired during the marriage. Examples may be the marital home, second home, furnishings and appliances, artwork, vehicles, financial assets, investments, retirement accounts and privately owned businesses.

The value of intangible property may also be divided. Examples of divisible intangible property include the value of a patent on an invention, the value of the celebrity status of a spouse's name, the goodwill value of a business owned by one spouse and the value of a professional degree earned by one spouse. The value of these intangible assets will generally only be divided when both spouses made a substantial contribution to that value, either directly or indirectly.

It is not always easy for a spouse to identify all of the assets that may be available for valuation and division. A party's lawyer may help with this issue through discovery, During discovery the parties' attorneys' trade documents that disclose each party's income, assets and liabilities. In addition, each spouse is usually deposed by the other spouse's attorney. At the deposition, the questioned spouse will respond, under oath, to questions designed to gather all necessary information about his or her assets and income. If necessary, additional parties may be deposed, such as employers, bankers or business partners.

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What terms should be included in a separation agreement?

A separation agreement may be advisable when the parties have very different financial situations, such as when one spouse is the wage earner and the other is a homemaker. A formal separation agreement can help ensure that all family members' needs will be met.

The terms of such separation agreements vary, but the following items are usually addressed:

  • The spouses' right to live separately
  • Custody of the children
  • A visitation schedule
  • Child support
  • Alimony or spousal support
  • The children's expenses (medical, dental, educational and recreational)
  • Property and debt division
  • Insurance (medical, dental and life)
  • Income taxes

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Learn More: Family Law

The laws relating to families have changed in past decades as judges and legislators have reconsidered and revised the legal issues involved in divorce, child custody, child support, domestic violence and other family law matters. Family law has become entangled in national debates over family structure, gender bias and morality. Few legal areas are as emotionally charged as family law and even with previous changes, family law remains a controversial and ever-changing area of law, which will continue to evolve as families and society evolve.

The division of marital property has also changed in recent years to give each spouse an equitable share of property upon divorce. One change that displays this trend is the recognition of the homemaker spouse's contributions to the growth of marital property. Along the same lines, homemaker spouses are not considered as dependent as they once were, and as a result, alimony is now often temporary, with the thought that after a period of "rehabilitation" these spouses can become self-supporting.

Issues such as child custody have also advanced in the courts as cultural and societal attitudes have changed. Mothers may have been favored in many custody disputes of the past, but fathers are given much more consideration than in the past. Custody battles, while always difficult and emotional, have become even more complicated as reproductive technology has increased the ways in which people can become parents. Family law lawyers and judges are faced with new, difficult and sensitive questions such as who gets custody of fertilized embryos when a couple that was involved in infertility/assisted-reproduction treatments separates. Surrogate parenting also presents custody issues when the surrogate fails to abide by the surrogacy contract or wants visitation with the child. Equally difficult issues can arise when sperm or egg donors make some claim to their genetic offspring. These issues involve questions relating not only to custody laws, but also to those involving adoption, children's rights and paternity. And as technology advances, the law will be presented with an even greater challenge to keep pace.

Another major change in family law in recent years is the recognition that many family disputes can be resolved through alternative dispute methods, such as mediation, as opposed to the traditional litigation process. As a result, many states have begun to explore other, non-adversarial alternatives, such as mandatory mediation in family law cases, which can save time and money and help maintain relationships.

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DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent counsel for advice on any legal matter.

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