Divorce: Arizona is a community property state. This means that, as a general rule on the date you marry, your property belongs equally to both husband and wife. There are exceptions to this general rule. One of the most common exceptions is the ‘sole and separate’ property designation. If you can prove that you have kept certain property away from the joint contributions and efforts of a spouse to pay for it, maintain it or improve it, then you may qualify to have that property designated as sole and separate property not subject to the equal division property according to the community property rules. This might be important if you bring a home into the marriage. You may want to keep your previously owned home out of the marital community designation so you would be awarded it in the event of a divorce. There are a few other exceptions to the general rule (such as family heirlooms, gifts from one spouse to another, inherited items, property received after a petition for dissolution of marriage is served, etc.,) and you should speak with an attorney about specific concerns you may have. Annulment is also available.
Grounds: Arizona is a ‘no-fault’ divorce on demand state. Grounds are not needed to obtain a divorce. One spouse cannot prevent the other from obtaining a divorce.
Waiting Period: There is a mandatory waiting period in Arizona of 60 days following the date of serving the Petition for Dissolution of Marriage upon a party for the divorce during which time the court cannot issue a decree of dissolution (divorce). See A.R.S. §25-329. If everything is in order and agreed to (consent signed and filed with the Petition for Dissolution of Marriage) at the time of filing, a divorce could be final in approximately 61 days following the day of service or acceptance of service by the opposing party. However, there are no restrictions on the court and some judges take longer than others to sign their final orders.
Jurisdiction: One party must be domiciled in or be active military and be designated as having their domicile the State of Arizona for at least 90 days prior to filing for a divorce in the State. See A.R.S. 25-312.
Effect of Filing: Once a Petition has been filed, the party filing the Petition is bound by a statutory preliminary injunction. Once a Respondent has been served or has actual notice of the filing of the Petition, the party having been served with documents or notice is bound by the same statutory injunction. See A.R.S. §25-315. That injunction protects the marital property from being transferred (sold or traded) or encumbered (pledged to be collateral for a debt). It also prevents the children from being removed from the jurisdiction of the court. It also enjoins the parties from harassment or assault upon a party or a child. The preliminary injunction also requires the parties to maintain all insurance coverage (whether health or automobile).
Child Custody: The standard for determining the parent with whom their children may live following a divorce is ‘the best interest of the child.’ There is no presumption that one parent is better suited to be the custodial parent based upon gender. The factors that the court is likely to consider in granting a custody arrangement are listed in the statutes of Arizona. See A.R.S. §25-401 and those following that section. If the parties are seeking joint custody, then they are required to file a parenting plan. See A.R.S. §25-403.02.
Visitation: The legislature has outlined the general guidelines for visitation. See Model Parenting Time Plans at www.supreme.state.az.us/dr/Pfd/Parenting_Time_Plan_Final.pdf . However, the parties are generally free to fashion any agreement for visitation that will work in their situation. Often the parents who can exhibit the most flexibility in fulfilling their role as a parent and co-parent will have less stress and are less likely to return to court for intervention when disagreements occur. Those most successful at balancing custody and visitation issues are those who respect the other parent and their designated time. They also respect the child(ren) and resist the temptation to put the children between them in communicating with one another and in making visitation arrangements.
Child Support: Child support obligations are calculated according to statute. See A.R.S. §25-320. Once the base calculation is made the parties may agree to either less or more. The deviation from the statutory calculation must be approved by the Court. See A.R.S. §25-320 Appendix (20). Child support continues for each child until they turn 18 years of age or graduate from high school with age 19 being the last date child support would be due (such as in cases where children do not graduate on time).
Spousal Maintenance: Another traditional name for spousal support is alimony. This is the obligation of one spouse to provide for the basic needs of the other spouse. Generally the amount of support ordered will depend on the income of both parties, the debt from the marriage and the ongoing need of the petitioning spouse. Spousal support is available on a gender neutral basis. See A.R.S. §25-319.
Modifications: Often over the course of time, court orders are obsolete or become unworkable because one or both parties will not comply with the order. If the order needs to be changed, then a modification of the order must be sought by involving the court. For example, as children age, their visitation needs may change and the order establishing visitation or custody when the child is younger will not be workable when the child gets older. Also, modification to a child support order or spousal support order may be needed based in part upon a change of circumstances. Getting a correct order in place is the method for each party to have an enforceable order. Remember, until the order of a court is changed by another court order, the first order remains in place. If you are attempting to modify a child support order, the evidence must demonstrate ‘a substantial and continuing change of circumstances.’ See A.R.S. §25-320 Appendix (24).
Paternity: A paternity action is sometimes required to establish who the biological parents of a child are. A medical test is used to determine the biological parentage of a child after the child is born. A test is not always needed, and paternity may be established by agreement and affidavit. This is a sensitive area, and correct legal advice is essential based upon your circumstances.
Adoption: The firm advises clients in step-parent adoptions. The firm is not a placement agency and does not provide leads or arrangements for adoptions. When one parent marries and wants their new spouse to adopt, this firm handles those step-parent adoption cases. The regulations for adoption are recorded at ARS § 8-101 through 8-173. The primary requirements for a step-parent adoption include: that the child’s parent must be married to the stepparent for at least one year prior to the adoption and the child has resided with the stepparent for at least one year.
Termination of Parental Rights: When a child is adopted by a step-parent, the parental rights of the biological parent must be terminated by formal court action. Often a parent who is absent from the life of the child will suddenly express an interest when an adoption is proposed because they feel guilty for neglecting the relationship in the first place. A termination of parental rights action is commenced when a biological parent is not cooperative with a potential adoption action. If a biological parent is cooperative, and is willing to sign a document giving consent to the adoption, the termination of parental rights action is avoided and the adoption can take place using the consent of the biological parent instead of proceeding against a parent to terminate their parental rights.
Enforcement of Court Orders: When someone willfully disobeys a court order, their behavior is called ‘contempt of court.’ It is through a court proceeding that a judge exercises his or her power to punish the non-compliant party. Sometimes the court will enter a penalty against a non-complying party. Sometimes a person can be incarcerated (put in jail) until they do cooperate with the court’s orders. If the non-compliance involves visitation or custody issues, there may be grounds for a change of the particular order involved. This may mean that the court could change custody, change visitation, change financial obligations etc. Since there are many possibilities, you should discuss your case with an attorney to determine if there is a contempt, if enforcement can be made with or without court involvement, and whether it is strategically wise for you to make your move in court soon or at a later time.
Contempt Proceedings: When a person is served with notice that another party is complaining that a person is not abiding by a court’s prior order, the court will issue a notice to appear for the contempt proceeding. At this hearing, the court will hear evidence on the nature of the non-compliance with a prior order. If convinced that the party is acting willfully, the court may enter a finding of contempt. Then the court may fashion the punishment for the disobedience. A person accused of such disobedience would be wise to have an attorney represent him/her at the hearing before the judge.
Grandparent Rights: When parents of children do not include grandparent contact in the life of the children, a grandparent may petition to have visitation rights established by court order. Subject to a ‘best interest of the child’ standard of evidence , grandparents can be successful in establishing their own visitation rights particularly if their own child is incarcerated or non-functioning in the life of the child. If there are grounds which would prevent a grandparent from visiting their child such as inappropriate lifestyle choices, drug addiction, domestic violence, etc., then a court will be reluctant to allow visits by the inappropriate grandparent. The law anticipates that grandparents will be visiting when the parent through whom the grandparents claim a right of access to the child is visiting. See A.R.S. §25-409.
Interstate Custody: When parents live in different parts of the country, visitation and custody become unworkable under most normal circumstances. A court order may be sought to adjust visitation periods (including frequency of visits and the place for visits to take place) to accommodate the reality of living apart. If one parent has moved away from the other in an inappropriate manner, the court may compel the moving parent to return to the area where the other parent lives, or may change custody to the parent who did not move away.
Legal Name Change: When a person desires to change their legal name, the firm assists them in making the change. So long as the name change is not made for an inappropriate purpose (such as avoiding creditors) the name change will usually be granted.
Legal Separation: When parties want to live apart but still maintain other aspects of marriage, a legal separation can be obtained from the court. Often this legal step is a prelude to a divorce action particularly for parties who are attempting reconciliation but prefer to live apart. See A.R.S. §25-313. If one party objects to the legal separation, the court will convert the case into a dissolution of marriage (divorce) action.
Premarital Agreement: Often called a prenuptial agreement, this is a contract between two persons made before they are married. The Agreement must be in writing and signed by both parties. See A.R.S. §25-202-205. This is an agreement which resolves issues of property division by contract agreement before a divorce is contemplated. Prenuptial agreements require the parties to disclose all of their assets to the other party. When properly drafted and signed, these agreements are enforceable under general provisions of contract law. Although one attorney can, under certain circumstances, represent both parties, it is preferred that an attorney for one spouse draft the agreement and that another attorney for the other spouse review the agreement and advise his client accordingly.
Pre-nuptial Agreement: An agreement made before marriage to agree about the division of certain assets in the event of divorce.
Post-nuptial Agreement: An agreement made after marriage to agree about the division of certain assets in the event of divorce.
Relocation Following Divorce: If a party wants to leave the local area (or move a significant distance from the marital home) he or she may ordinarily do so provided that they do not have custody of a minor child who was a product of the marriage. If a custodial parent wants to relocate and that would impact the other party or child in terms of their custody or visitation, then a court proceeding may be required to obtain permission from the court. The court may have to make necessary modifications to prior orders related to custody and visitation. If the move is for an improper purpose, the court may deny the party permission to move, and in some cases may even change custody. So long as there are minor children involved, a party’s right to relocate is secondary to the stability of the child and the rights of the other parent. See A.R.S. §25-408.