What To Expect Throughout Your Case
HOW DOES THE DIVORCE PROCESS START?
One spouse, called the Petitioner, files a document called a “Petition for Dissolution of Marriage” (along with several other documents) with the Clerk of the Court in his or her county of residence. The other spouse, called the Respondent, is then served with the Petition and the other documents. If the Respondent does not agree with what the Petitioner has requested in the Petition, the Respondent must file a “Response” no later than 20 days (30 days if served out of state) after he or she was served with the Petition and other documents.
If Respondent fails to file a written “Response” within the time allowed, Petitioner can apply to the Court for a default. The Petitioner must file an “Application for Entry of Default” with the Court and mail a copy to the Respondent. The Respondent then has another opportunity to file a Response. Respondent has ten business days from the date of the Application for Entry of Default to file a Response. If the Respondent still does not file a Response within ten business days from the date the Application for Entry of Default was filed, then Petitioner can proceed with setting a hearing to complete the dissolution.
WHAT IS THE DIFFERENCE BETWEEN A CONTESTED DIVORCE AND AN UNCONTESTED DIVORCE?
If a divorce is contested, it means that Petitioner and Respondent do not agree on some aspect of the case, and the Respondent has filed a Response to contest what Petitioner has requested in the Petition. Some examples of these issues, that must be resolved prior to the Judge granting a divorce, are child custody, child support, spousal maintenance, the division of property and division of debts. If an agreement cannot be reached by both parties, the case will go to a Trial and be heard before a Judge, who will render a decision on the unresolved issues. In Arizona, there are no juries in a divorce case.
An uncontested divorce is one where the parties mutually agree on all of the issues and there are no disputes. Accordingly, all that needs to be done is to memorialize the agreement in writing and submit the agreement to the Court for the Judge’s approval.
In actuality, most cases that start contested usually end up settling in the end. Most cases do not end up being tried before a Judge.
HOW LONG DO I HAVE TO WAIT BEFORE I CAN FILE FOR A DIVORCE IN ARIZONA?
Either you or your spouse must have lived in the state of Arizona for at least 90 days prior to the filing of a Petition for Dissolution of Marriage in Arizona. However, either party can file a Legal Separation the moment they start residing in the state of Arizona.
WHAT IS “JOINT” LEGAL CUSTODY?
There are two different kinds of “Custody.” “Legal” and “Physical.” Physical custody is the term used to describe the actual physical time-sharing arrangements. Legal custody is the right to participate in long-term decisions being made for the benefit of the minor child. Joint legal custody means that both parties share decision making responsibility for the child and that neither party’s legal rights are superior to the other’s. “Joint Custody” may be awarded if a Judge determines that the parties can communicate with one another well enough to make joint decisions together, regarding the child’s well-being. Also, the Judge must make a finding that there has been no “significant” instances of prior domestic violence and that the proposed arrangement is logistically possible.
If The Court feels that the parties cannot communicate with one another, then one spouse may be granted sole legal custody of the parties’ minor child, giving that spouse primary authority to make all the major decisions regarding the child, and the other spouse may have little if any input.
Primary physical custody means that one parent has the child physically most of the time. This parent shall make all the routine daily decisions with respect to the child’s health and general welfare.
WHAT FACTORS ARE CONSIDERED WHEN THE JUDGE IS DECIDING WHO WILL GET CUSTODY OF THE CHILDREN?
The most difficult issue in any divorce involves the issue of who will be awarded legal and primary physical custody of a child. If the Petitioner and Respondent cannot agree on custody arrangements, The Court will be forced to make that decision for them. The Court will always decide the issue of custody looking to the “best interests” of the child as the standard.
The Court will consider many factors, such as the wishes of the child and the parents; the health, both mentally and physically of all individuals involved; any past or present domestic violence; drug, alcohol, or other substance abuse; criminal records; as well as the current living arrangements and living conditions of the parents and the child. Starting in 2013, the Judge will usually try to maximize each parties parenting time.
HOW MUCH CHILD SUPPORT WILL I HAVE TO PAY OR WILL I RECEIVE?
Child support is determined by a set formula adopted by the Arizona Supreme Court. The amount of support is determined by adding together the monthly gross income for each party, and then taking that number and looking at the Guidelines to determine a basic support amount. The basic support amount is then altered by other necessities such as medical insurance for the child, child care costs, extraordinary educational expenses, the age of the child, and support of any other natural or adopted children by the parent.
WHAT IS CONCILIATION SERVICES AND HOW DOES IT WORK?
Conciliation Services is a separate division of the Court made up of trained family counselors. These mediators are available to people going through a divorce, or other family disputes, to assist them in resolving those disputes without the necessity of a trial. Conciliation services is offered free to the public.
WHEN IS A PARTY ENTITLED TO SPOUSAL MAINTENANCE OR ALIMONY?
In Arizona, the law acknowledges that marriages are financial partnerships, and even though one party may not have worked outside the home, the law presumes that this spouse still contributed equally to the marriage in other ways. The other ways a spouse may have contributed to the marriage, include but are not limited to, child rearing, managing the household, and providing physical and emotional support to the primary paycheck earner.
The party seeking spousal maintenance is not necessarily automatically entitled to it. The party seeking an award of spousal maintenance must be able to prove a need for it. The Court may award spousal maintenance to the party seeking it if they can show any of the following criteria:
- That they lack sufficient property to provide for themselves.
- That they are unable to support themselves through appropriate current employment or future employment.
- They are the custodial parent of a minor child whose age or condition is such that they should not be required to work outside the home.
- That party contributed to the educational opportunities of the other spouse.
The Court will also consider the number of years the parties were married and whether the party requesting spousal maintenance is of an age that there is little chance of gaining adequate employment. The other party must also have the ability to pay the spousal maintenance. If these circumstances exist, the Court will determine the amount of maintenance to be paid in addition to determining how long it is to be paid. In determining the amount and duration of the support, the Court will consider all relevant factors, including but not limited to:
The standard of living established during the marriage.
The duration of the marriage.
The age, employment history, earning ability, and the physical and emotional health of the spouse seeking maintenance.
The ability of the spouse from whom maintenance is sought to meet his or her needs while also meeting the needs of the spouse seeking the maintenance award.
The comparative financial resources of the spouses, including their comparative earning abilities.
The contributions, if any, of the spouse seeking maintenance to the earning ability of the other spouse.
The extent, if any, to which the spouse seeking maintenance has reduced their own income or career opportunities for the benefit of the other spouse.
The financial resources of the party seeking maintenance, including marital property apportioned to such party, and such party’s ability to meet their needs independently.
WHEN IT COMES TO DIVIDING OUR MARITAL PROPERTY HOW DOES THE COURT DECIDE?
Arizona is a community property state, and the principles of community property guide the Courts when dividing the marital assets. As an oversimplification, all property acquired during marriage is presumed to be community property. There are exceptions to this rule. But, for the most part, the courts consider all property acquired during marriage to be the property of the marital community, and subject to 50/50 division. Certain property is considered to be separate property, not subject to division, meaning it belongs solely to one spouse. Examples of separate property include property owned prior to the marriage, or property one spouse received as a gift or through an inheritance.
Property that was once separate may become community property if it is transmuted. There are a number of instances of this, such as property that has been co-mingled or deemed given as a gift to the community. Co-mingling can occur, for example, by depositing separate property funds into a joint bank account, and then paying living expenses with the account. In this instance, the funds loose their separate nature. Gifting could occur by using separate property to promote and improve the community property, such as the marital residence.
When the marriage is dissolved the Court attempts to make an equitable, though not necessarily equal, division of the community assets and also awards each spouse their own separate assets.
CAN I BE AWARDED MY LEGAL EXPENSES OR ANY OTHER INCURRED EXPENSES RELATED TO MY CASE?
The law does provide for an award of attorneys’ fees and costs in Family Court matters. The award of attorneys’ fees and costs is a discretionary award, left up to the Judge hearing the case.
After considering both parties’ financial resources, current circumstances, and the reasonableness of each party’s position throughout the litigation, the Court may order one spouse to pay a reasonable amount to the other spouse for legal fees, including court costs and attorneys’ fees. In reaching a decision on whether to award fees and costs, the Court will base its decision on the ability of each party to pay for their own fees and expenses. The reason The Court will award an amount of fees and costs is to allow the party with the least financial resources an equal opportunity to present their case. The Court also uses this award as a means to provide a sanction against a party that took a very unreasonable position throughout the litigation process.
For legal advice about your case, contact an attorney. Unfortunately, if you represent yourself, by law, the Judge MUST assume you are as familiar with family law and procedure as an attorney. You do not have a second chance, so make sure you present your best case the first time. Call Gregory A. Riebesehl at Riebesehl Family Law Offices and let him represent you through the court process to a successful outcome at (602) 621-0779.
Call Gregory A. Riebesehl today for your free no risk completely confidential initial consultation and a speedy solution to all your legal problems at (602) 621-0779
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Phone: (602) 621-0779
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