Feeling overwhelmed at the prospect of going through the divorce process? You are not alone! Don’t panic. It is common to have questions or feel like you don’t know where to begin. Below are some commonly asked questions – and answers – to help you get started:
Once a petition for dissolution is filed and served, it is mandated by law that 60 days must pass before a final decree can be entered by the court. This assumes that all issues are resolved and a “consent decree” which is approved and signed by both parties is presented to the court for the Judge to review, approve and sign. If, however, there are ongoing issues for resolution and the parties are in need of a trial date or other court services, there is no way of knowing how long a case may take. The courts typically attempt to move cases along by setting hearings along the way and making sure that the case is progressing, but some cases may take up to a year or more until they are finalized depending upon the complexity of the issues and the court’s calendar.
The family court has jurisdiction (authority) not only to end the marriage between the parties, but to make orders regarding the following: child custody (now referred to as legal decision making) and parenting time; child support; spousal maintenance (alimony); the division of property and debts; attorney’s fees and costs; and other issues relating to or resulting from the foregoing. Any of these issues can be resolved by settlement between the parties.
A “simple” divorce, where the parties have no children in common, are not requesting support, have not acquired any property or real estate, have no retirement accounts to divide, have no business interests, and have agreed to the terms of the divorce, can go fairly quickly and inexpensively, often without the need for an attorney. All that is required in that instance is the initial filing fee (currently $338.00) and the response fee (currently $269.00) as well as any fees for service of process if that is required or desired. If a case involves minor children, and decisions regarding custody (now called legal decision making), parenting time, child support, spousal maintenance, division of property, business interests, valuation of assets, or other complicated issues which require the need for court hearings and/or litigation, the parties would be well-advised to seek legal representation. Depending upon the complexity of the issues and the length of the case, the cost of legal representation could range from a few thousand dollars to the tens of thousands of dollars or more.
Simply put – no. The rules of ethics prohibit an attorney from representing both parties in a divorce matter. Neither party is required to be represented by an attorney. It is not unusual for one party to hire an attorney, while the other party remains unrepresented. The represented party’s attorney will prepare all of the paperwork and submit it to the court. In such a case, the represented party’s attorney represents ONLY the represented individual – not both parties. Another option is for the parties to hire an attorney to mediate the divorce. Both parties can then either remain unrepresented, or hire their own individual counsel to advise them accordingly.
Unless there is an agreement between the parties, the judge will be the one who ultimately makes such a decision. Custody (now known as legal decision making) and parenting time are governed by statute in Arizona, with Judges given several factors as “guidelines” to look at when making a decision or ruling on these issues. A.R.S. §25-403 sets forth the factors to consider when making a determination regarding legal decision making, including the wishes of the parents, which parent is more likely to allow frequent and meaningful interaction with the other parent, and which parent has been the primary caretaker. Other factors for consideration are a history of domestic violence or substance abuse on the part of either parent. Since January 1, 2013, there has been a substantial push toward equal parenting time as the public policy in the state of Arizona. It is very rare that parents do not receive joint legal decision making and equal parenting time absent domestic violence or substance abuse issues.
Child support in Arizona is governed by the Arizona Child Support Guidelines, which is a mathematical formula. This formula is outlined in the guidelines, which is updated every four years. The formula requires the following information:
- Monthly gross income amount for each person;
- Number of additional children not common to the parties (if any) – or support paid for children not common to the parties (if any);
- Spousal maintenance (alimony) paid or received;
- Cost of child care;
- Cost of medical insurance paid (only for the children); and
- Parenting time schedule.
Once these preliminary numbers are placed into a worksheet, the formula generates a number which gives the child support amount. This is typically a straightforward calculation. Issues arise if a parent is working below their ability level, or is not reporting income appropriately, and litigation becomes necessary to determine the true income or support amount.
Arizona is a community property state. This means that property acquired during the marriage is presumed to be community property. Absent an agreement to the contrary (such as a prenuptial or postnuptial agreement), upon termination or dissolution of the marriage, property is divided “equitably”, which is generally applied as meaning “substantially equally.” This means that even if only one spouse works during the marriage, both parties are entitled to one-half of the property acquired during the marriage. Separate property is not subject to division at the time of divorce. Separate property includes any property acquired by gift or inheritance, so long as the separate property was not commingled or used to benefit the community.
There is no hard line rule when it comes to spousal maintenance. However, A.R.S. § 25-319 does give courts several governing factors to follow in making a determination on spousal maintenance. The court must first determine if a party qualifies for an award of spousal maintenance. This is determined by looking at such factors as the length of the marriage, the age of the person requesting an award of spousal maintenance, and the amount of property to be received by the person requesting the award. If a party is not entitled to an award, no further investigation is required. If entitlement is found, courts continue the inquiry and look at additional factors which assist them in the determination of the amount and duration of the award.
Once a dissolution matter is filed, there is a preliminary injunction in place which prevents both parties from leaving the State of Arizona with the children absent written permission from the other parent, or a court order. If orders are already in place, leaving the State of Arizona would be considered a relocation. This is governed by statute (A.R.S. § 25-408). This statute requires that any party seeking to relocate with children out of the State of Arizona, or more than 100 miles away from the other parent within the State of Arizona must provide at least 60 days advance notice of the intent to relocate, and must prove that the relocation is in the child’s best interest. The other parent then has 30 days from their receipt of the intent to relocate to file a Motion with the Court opposing the relocation and seeking a hearing. At the hearing, the burden is on the parent seeking the relocation to prove that the relocation is in the child’s best interest, which is often very difficult to do.
This is just the beginning. Most people have a ton of questions and concerns, and it is almost impossible to address all of those questions and concerns in this forum. Call the office at (480) 833-2211 to schedule a consultation with Mr. Scoresby who can discuss your specific questions and concerns one-on-one. The most important thing to remember is to stay calm. With the help of your friends, family and a good attorney, you will get through this.