Family Law
Divorce
Divorce in Arizona is technically called dissolution of marriage. One spouse must have lived in Arizona for at least ninety days to file in Arizona.
Arizona is a no-fault state, which means that spouses do not have to prove fault or blame to end the marriage in a non-covenant marriage. You need only show that the marriage is "irrevocably broken."
Arizona law law requires a 60-day minimum waiting period from the time the other party is properly served before the dissolution can be final. You cannot remarry until the day after your divorce is final. You can obtain a dissolution of marriage without your spouse's consent.
Your case must be filed in the proper location (jurisdiction), depending on the area in which you live.
Annulment and Legal Separation
If you prefer, you can obtain an Annulment or Legal Separation in Arizona, rather than a divorce.
An annulment essentially means your marriage never existed. There are only a few grounds that qualify for an annulment. Please contact us for further information.
Sometimes legal separation is preferred to dissolution. You can still obtain a court order regarding custody, visitation, support, and assets/debts, similar to what occurs in a dissolution.
Covenant Marriage
On August 21, 1998, the State of Arizona established another type of marriage called a "Covenant Marriage." You must meet additional requirements to obtain a divorce in this type of marriage.
You must prove to the court you have one of the following grounds for divorce: 1) adultery, 2) felony conviction, 3) abandonment of the marital home for at least one year, 4) physical or sexual abuse, 5) you have been living apart for at least two years, 6) you have been living apart for one year since the date a decree for legal separation was entered, 7) drug or alcohol abuse, or 8) both parties agree to a dissolution of marriage.
Divorce
Divorce in Arizona is technically called dissolution of marriage. One spouse must have lived in Arizona for at least ninety days to file in Arizona.
Arizona is a no-fault state, which means that spouses do not have to prove fault or blame to end the marriage in a non-covenant marriage. You need only show that the marriage is "irrevocably broken."
Arizona law law requires a 60-day minimum waiting period from the time the other party is properly served before the dissolution can be final. You cannot remarry until the day after your divorce is final. You can obtain a dissolution of marriage without your spouse's consent.
Your case must be filed in the proper location (jurisdiction), depending on the area in which you live.
Annulment and Legal Separation
If you prefer, you can obtain an Annulment or Legal Separation in Arizona, rather than a divorce.
An annulment essentially means your marriage never existed. There are only a few grounds that qualify for an annulment. Please contact us for further information.
Sometimes legal separation is preferred to dissolution. You can still obtain a court order regarding custody, visitation, support, and assets/debts, similar to what occurs in a dissolution.
Covenant Marriage
On August 21, 1998, the State of Arizona established another type of marriage called a "Covenant Marriage." You must meet additional requirements to obtain a divorce in this type of marriage.
You must prove to the court you have one of the following grounds for divorce: 1) adultery, 2) felony conviction, 3) abandonment of the marital home for at least one year, 4) physical or sexual abuse, 5) you have been living apart for at least two years, 6) you have been living apart for one year since the date a decree for legal separation was entered, 7) drug or alcohol abuse, or 8) both parties agree to a dissolution of marriage.
Child Custody & Visitation
The easiest and most effective way to resolve custody/visitation issues is for both parents to reach an agreement on a parenting plan. The judge will usually accept such a plan and will make it a court order. If you're having difficulty reaching an agreement, it's a good idea to utilize the mediation process, whereby a neutral mediator will assist the parents in creating such a plan. Preferably, the parents will reach an agreement. If they cannot, the court will eventually determine what's in the best interest of the child and will make an Order.
The judge may give sole physical and/or legal custody to one parent, or joint physical and/or legal custody to both parents. In some cases the judge may even give custody to someone else if it's in the best interest of the child. The judge will consider factors such as the child's health, safety and welfare, and any history of abuse.
Sole physical custody means the children live with one parent and have visitation with the other parent. Joint physical custody means the children live with both parents on a regular basis.
Sole legal custody means one parent has the right to make decisions regarding the health, education, and welfare of the children. Joint legal custody means both parents have the right to make such decisions jointly.
The judge will consider the child's wishes if the child is of sufficient age and capacity, but the judge is not required to follow the child's wishes.
The judge may order supervised visitation with one parent if necessary to protect the child. The judge may also give stepparents and grandparents visitation in certain circumstances. The mediator may also meet with the child during the mediation process as well.
Division of Assets and Debts
Arizona is a community property state, which means that assets/debts acquired during the marriage are community property, with certain exceptions. This means each spouse owns half the asset or is responsible for half the debt, regardless of whose name is on it, unless you agree to an unequal division.
Assets and debts acquired before the marriage, after the date of separation, or by gift or inheritance are separate property, with certain exceptions. Separate property is not divided in a dissolution. It remains the property of the spouse who acquired it.
It can be complicated to identify separate property when it has been mixed with community property. However, using complex tracing requirements you could be entitled to receive your separate property back even if it has been mixed. You should consult an attorney for advice in this regard.
Debts incurred before your marriage or after the date of separation are considered your separate property debts and your spouse is not liable for them, with certain exceptions.
It's best if you and your spouse can agree on the division of assets and debts, but if you cannot, the judge will make the decision for you. It's important to realize that even if your spouse agrees to pay a community property debt but then fails to pay, you may still be liable to the creditor. Division of assets and debts can be complicated. You should obtain advice from a lawyer before entering into any agreement.
Spousal Maintenance
Spousal maintenance is the technical word for alimony in Arizona. The court may order that one spouse pay the other support for a certain period of time.
To determine whether support will be awarded and how much the award will be, the court will consider factors such as: the standard of living during the marriage, the length of the marriage, the age, health, incomes, current assets, contributions to the other spouse's education, any financial unfairness during the marriage, and earning capacities of both spouses.
The receiving spouse will pay income taxes on the support received and the paying spouse is entitled to a tax deduction for the support paid.
Any support order or non-support order can be modified down the road if circumstances change, provided that the court reserves jurisdiction over the issue. The receiving spouse can also obtain a wage assignment (wage garnishment) directly from the paying spouse's employer.
Child Custody & Visitation
The easiest and most effective way to resolve custody/visitation issues is for both parents to reach an agreement on a parenting plan. The judge will usually accept such a plan and will make it a court order. If you're having difficulty reaching an agreement, it's a good idea to utilize the mediation process, whereby a neutral mediator will assist the parents in creating such a plan. Preferably, the parents will reach an agreement. If they cannot, the court will eventually determine what's in the best interest of the child and will make an Order.
The judge may give sole physical and/or legal custody to one parent, or joint physical and/or legal custody to both parents. In some cases the judge may even give custody to someone else if it's in the best interest of the child. The judge will consider factors such as the child's health, safety and welfare, and any history of abuse.
Sole physical custody means the children live with one parent and have visitation with the other parent. Joint physical custody means the children live with both parents on a regular basis.
Sole legal custody means one parent has the right to make decisions regarding the health, education, and welfare of the children. Joint legal custody means both parents have the right to make such decisions jointly.
The judge will consider the child's wishes if the child is of sufficient age and capacity, but the judge is not required to follow the child's wishes.
The judge may order supervised visitation with one parent if necessary to protect the child. The judge may also give stepparents and grandparents visitation in certain circumstances. The mediator may also meet with the child during the mediation process as well.
Division of Assets and Debts
Arizona is a community property state, which means that assets/debts acquired during the marriage are community property, with certain exceptions. This means each spouse owns half the asset or is responsible for half the debt, regardless of whose name is on it, unless you agree to an unequal division.
Assets and debts acquired before the marriage, after the date of separation, or by gift or inheritance are separate property, with certain exceptions. Separate property is not divided in a dissolution. It remains the property of the spouse who acquired it.
It can be complicated to identify separate property when it has been mixed with community property. However, using complex tracing requirements you could be entitled to receive your separate property back even if it has been mixed. You should consult an attorney for advice in this regard.
Debts incurred before your marriage or after the date of separation are considered your separate property debts and your spouse is not liable for them, with certain exceptions.
It's best if you and your spouse can agree on the division of assets and debts, but if you cannot, the judge will make the decision for you. It's important to realize that even if your spouse agrees to pay a community property debt but then fails to pay, you may still be liable to the creditor. Division of assets and debts can be complicated. You should obtain advice from a lawyer before entering into any agreement.
Spousal Maintenance
Spousal maintenance is the technical word for alimony in Arizona. The court may order that one spouse pay the other support for a certain period of time.
To determine whether support will be awarded and how much the award will be, the court will consider factors such as: the standard of living during the marriage, the length of the marriage, the age, health, incomes, current assets, contributions to the other spouse's education, any financial unfairness during the marriage, and earning capacities of both spouses.
The receiving spouse will pay income taxes on the support received and the paying spouse is entitled to a tax deduction for the support paid.
Any support order or non-support order can be modified down the road if circumstances change, provided that the court reserves jurisdiction over the issue. The receiving spouse can also obtain a wage assignment (wage garnishment) directly from the paying spouse's employer.
Child Support
Both parents are responsible for supporting the children until they reach the age of 18 or 19 if they're still in high school. The amount of support is determined by the use of established guidelines, based on each parent's income and the amount of time the child(ren) are in his/her custody.
The receiving parent does not report it as income for tax purposes, and the paying parent is not entitled to a tax deduction. The receiving spouse can obtain a wage assignment (wage garnishment) directly from the paying spouse's employer.
Additionally, both parents are typically equally responsible for uninsured medical, dental, and child care expenses.
Paternity determination is required in order to receive an order for child support.
Modification of an Order
You may request a modification of a existing custody, visitation, or support order when there is a change of circumstances that would warrant such a modification, which must be at least one year since the prior modification.
The Legal Process
Once your case is filed there are several events that may or may not occur, as follows:
1) Default: If your spouse fails to file a Response in the case, you may request a default and the court will proceed without them to issue a judgment.
2) Temporary Orders: Either party can request temporary orders for child custody, visitation, support or restraining order disputes. The temporary orders may or may not become permanent.
3) Agreement: The parties and their attorney (if any) will attempt to permanently resolve the issues and reach an agreement. If you reach an agreement, you probably won't have to appear in court and the judge will issue an order based on your agreement.
4) Trial: If the parties cannot reach an agreement, you and your spouse will go through a trial.
Child Support
Both parents are responsible for supporting the children until they reach the age of 18 or 19 if they're still in high school. The amount of support is determined by the use of established guidelines, based on each parent's income and the amount of time the child(ren) are in his/her custody.
The receiving parent does not report it as income for tax purposes, and the paying parent is not entitled to a tax deduction. The receiving spouse can obtain a wage assignment (wage garnishment) directly from the paying spouse's employer.
Additionally, both parents are typically equally responsible for uninsured medical, dental, and child care expenses.
Paternity determination is required in order to receive an order for child support.
Modification of an Order
You may request a modification of a existing custody, visitation, or support order when there is a change of circumstances that would warrant such a modification, which must be at least one year since the prior modification.
The Legal Process
Once your case is filed there are several events that may or may not occur, as follows:
1) Default: If your spouse fails to file a Response in the case, you may request a default and the court will proceed without them to issue a judgment.
2) Temporary Orders: Either party can request temporary orders for child custody, visitation, support or restraining order disputes. The temporary orders may or may not become permanent.
3) Agreement: The parties and their attorney (if any) will attempt to permanently resolve the issues and reach an agreement. If you reach an agreement, you probably won't have to appear in court and the judge will issue an order based on your agreement.
4) Trial: If the parties cannot reach an agreement, you and your spouse will go through a trial.
Adoption and Stepparent Adoption
Pre-adoption certification of the prospective adoptive parent is required for non-stepparent adoption. This is essentially a determination from the court that he/she is suitable to adopt. The Court will consider:
•A complete social history.
•The financial condition of the applicant.
•The moral fitness of the applicant.
•The religious background of the applicant.
•The physical and mental health condition of the applicant.
•Any court action for, or adjudication of, child abuse, abandonment of children, dependency or termination of parent-child relationship in which the applicant had control or custody of the child who was the subject of the action.
•The submission of a fingerprint card and the results of a check of official fingerprint records based on such submission.
•Whether the person or persons wish to be placed on the central adoption registry.
•All other facts bearing on the issue of the fitness of the prospective adoptive parents that the court, agency or division may deem relevant.
Pre-adoption certification is not required for prospective adoptive parents when:
•The prospective adoptive parent is the spouse of the birth or legal parent of the child to be adopted or is an uncle, aunt, adult sibling, grandparent or great-grandparent of the child of the whole or half-blood or by marriage or adoption.
•The birth or legal parent is deceased but at the time of death the parent had legal and physical custody of the child to be adopted and the child had resided primarily with the spouse of the birth or legal parent during the twenty-four months before the death of the parent.
•The grandparent, great-grandparent, aunt, adult sibling or uncle is deceased but at the time of death that person had legal and physical custody of the child to be adopted and the child had resided primarily with the spouse of the grandparent, great-grandparent, aunt, adult sibling or uncle during the twenty-four months before the death of the grandparent, great-grandparent, aunt, adult sibling or uncle.
•If the applicant has adopted a child within three years preceding the current application and is applying to adopt another child or is a foster parent who is licensed by this state, the division or agency or a person designated by the court to conduct an investigation shall only provide an update report on any changes in circumstances that have occurred since the previous certification or licensing report. (for complete information, refer to ARS § 8-105).
Pre-Marital and Post-Marital Agreements
In Arizona, assets and debts acquired before the date of marriage remain separate property (with certain exceptions below). Assets and debts acquired after the date of marriage are community property. The only exceptions are gifts, inheritances, and earnings on separate property, which are separate property.
That being said, IF a separate property asset is co-mingled with community property, the asset may lose its separate property designation. For example, if you have a pre-marital 401k retirement account and you continue to contribute earnings to it after the date of marriage, you have co-mingled separate and community assets, which may destroy the separate property characterization of the pre-marital portion of the asset, converting it to community property. But separate assets will always remain separate, so long as they're never comingled with community assets.
Note that certain pre-marital assets may naturally develop a partial community property interest by virtue of future community contribution and labor, such as real estate or businesses. This is a very tricky area of the law.
The way around all this state-imposed community property law, if you're interested, is by creating a pre-marital or post-marital agreement. Anything can be created via agreement.
Guardianship, Conservatorship & Emancipation
A guardian may be appointed by the Juvenile Court when someone other than the parent wants to take over parental responsibilities, such as decisions regarding housing, medical care, and education, for a minor child. Anyone can be a guardian.
A guardian or conservator of an adult who lacks capacity to care for themselves, may be appointed by the probate court.
Minors who are at least 16 but not yet 18, may apply to be emancipated or to be declared legally an adult. The minor must prove they are financially self-sufficient and able to provide their own food, housing and medical care without parental assistance.
Name Change
Changing your name is a relatively straightforward process, assuming you have a legitimate purpose for it. It usually involves significant legwork though, because the legal change isn't the end of the road. You then have to change your social security card, your driver's license, your passport, your bank accounts, and everywhere else your name exists.
Adoption and Stepparent Adoption
Pre-adoption certification of the prospective adoptive parent is required for non-step parent adoption. This is essentially a determination from the court that he/she is suitable to adopt. The Court will consider:
•A complete social history.
•The financial condition of the applicant.
•The moral fitness of the applicant.
•The religious background of the applicant.
•The physical and mental health condition of the applicant.
•Any court action for, or adjudication of, child abuse, abandonment of children, dependency or termination of parent-child relationship in which the applicant had control or custody of the child who was the subject of the action.
•The submission of a fingerprint card and the results of a check of official fingerprint records based on such submission.
•Whether the person or persons wish to be placed on the central adoption registry.
•All other facts bearing on the issue of the fitness of the prospective adoptive parents that the court, agency or division may deem relevant.
Pre-adoption certification is not required for prospective adoptive parents when:
•The prospective adoptive parent is the spouse of the birth or legal parent of the child to be adopted or is an uncle, aunt, adult sibling, grandparent or great-grandparent of the child of the whole or half-blood or by marriage or adoption.
•The birth or legal parent is deceased but at the time of death the parent had legal and physical custody of the child to be adopted and the child had resided primarily with the spouse of the birth or legal parent during the twenty-four months before the death of the parent.
•The grandparent, great-grandparent, aunt, adult sibling or uncle is deceased but at the time of death that person had legal and physical custody of the child to be adopted and the child had resided primarily with the spouse of the grandparent, great-grandparent, aunt, adult sibling or uncle during the twenty-four months before the death of the grandparent, great-grandparent, aunt, adult sibling or uncle.
•If the applicant has adopted a child within three years preceding the current application and is applying to adopt another child or is a foster parent who is licensed by this state, the division or agency or a person designated by the court to conduct an investigation shall only provide an update report on any changes in circumstances that have occurred since the previous certification or licensing report. (for complete information, refer to ARS § 8-105).
Pre-Marital and Post-Marital Agreements
In Arizona, assets and debts acquired before the date of marriage remain separate property (with certain exceptions below). Assets and debts acquired after the date of marriage are community property. The only exceptions are gifts, inheritances, and earnings on separate property, which are separate property.
That being said, IF a separate property asset is co-mingled with community property, the asset may lose its separate property designation. For example, if you have a pre-marital 401k retirement account and you continue to contribute earnings to it after the date of marriage, you have co-mingled separate and community assets, which may destroy the separate property characterization of the pre-marital portion of the asset, converting it to community property. But separate assets will always remain separate, so long as they're never comingled with community assets.
Note that certain pre-marital assets may naturally develop a partial community property interest by virtue of future community contribution and labor, such as real estate or businesses. This is a very tricky area of the law.
The way around all this state-imposed community property law, if you're interested, is by creating a pre-marital or post-marital agreement. Anything can be created via agreement.
Guardianship, Conservatorship & Emancipation
A guardian may be appointed by the Juvenile Court when someone other than the parent wants to take over parental responsibilities, such as decisions regarding housing, medical care, and education, for a minor child. Anyone can be a guardian.
A guardian or conservator of an adult who lacks capacity to care for themselves, may be appointed by the probate court.
Minors who are at least 16 but not yet 18, may apply to be emancipated or to be declared legally an adult. The minor must prove they are financially self-sufficient and able to provide their own food, housing and medical care without parental assistance.
Name Change
Changing your name is a relatively straightforward process, assuming you have a legitimate purpose for it. It usually involves significant legwork though, because the legal change isn't the end of the road. You then have to change your social security card, your driver's license, your passport, your bank accounts, and everywhere else your name exists.
Do I need a lawyer?
The legal process, especially the process of obtaining a dissolution of marriage, determining the division of assets/debts, and determining support and custody issues can be very complex. Yes, it's possible to handle it yourself, but what you don't know that you don't know can hurt you. An attorney can help ensure your rights are protected, as well as properly guide you through the process itself.
One alternative to hiring a lawyer for full representation, is to hire one to help you with only particular stages of your case. This is known as Limited Scope Representation.
Another option, if you and your spouse can agree on the terms of the dissolution, is to hire only one lawyer who will prepare all the documents for both parties. The lawyer can legally only represent one party, but they will draft the documents with any terms you request, so there is no need for the other party to have an attorney if you can agree on the terms. You will likely avoid having to appear in court if you and your spouse can ultimately reach an agreement.
An even more inexpensive option is to retain an attorney to coach you on handling your case yourself.
The final alternative is independent mediation, whereby you and your spouse can negotiate a resolution with a neutral third-party outside of court. This will result in a legally binding Judgment of Dissolution. It's still a good idea to hire an attorney to advise you of your rights during this process though.
Note that my office is currently accepting only non-litigation cases at this time. In other words, the parties are interested in reaching an agreement via the methods described above, as opposed to litigation.
We are Proud to be a Designated Debt Relief Agency under Federal Law and We Provide Legal Assistance to Consumers Seeking Relief Under the Bankruptcy Code.
The information contained herein is for informational purposes only. It is not intended to constitute legal advice or to create an attorney-client relationship. We do not make any recommendations or endorsement as to any legal issue or procedure discussed. The nature of any particular legal issue should be considered on a case-by-case basis, and the information described herein is not necessarily a guide to your individual circumstances. It is advised that you seek independent legal advice to determine your particular legal needs.
Copyright © 2003 by Rambo Law Offices