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- Child Custody
- Child Support
- Contempt of Court
- Contested Divorce
- Dissolution of Marriage
- Family Law
- Family Law Appeals
- Getting Started
- Grandparent Rights
- Legal Separation
- Orders of Protection
- Post-Decree Modification
- Post-Nuptial Agreements
- Property Division
- Retirement Benefits
- Spousal Maintenance
- Third-Party Rights
- Uncontested Divorce
Yes, in certain circumstances. All 50 states have enacted legislation enabling grandparents to petition the courts for visitation rights with their grandchildren. Visitation rights are not automatic – they merely give grandparents the right to seek a visitation order. Many states permit only grandparents to petition for visitation, but some have extended the right to other relatives, such as great-grandparents, aunts, uncles and siblings, stepparents, and even non-relatives with whom the child has a close relationship. Most commonly, a grandparent (or other permitted third party) may petition for visitation after the death of a parent or upon divorce of the parents. Some statutes allow petitions when a parent is incarcerated, when a child is born out of wedlock, and when the child has previously lived with the grandparent. Arizona law allows grandparents to seek visitation with their grandchildren if certain conditions exist. Grandparent visitation matters can be extremely complex and fact specific. If you have questions about such issues, you should consult an attorney to discuss your situation.
The purpose of spousal maintenance is to assist a party who is not in a position to meet his/her own reasonable needs after separation or divorce to achieve the goal of financial independence. In order to qualify for maintenance, a party must meet one of the following criteria: (1) s/he lacks sufficient property, including property apportioned to him/her, to provide for his/her reasonable needs; (2) s/he is unable to be self-sufficient through appropriate employment or is the custodian of a child whose age or condition is such that the custodian should not be required to seek employment outside the home or lacks earning ability in the labor market adequate to be self-sufficient; (3) s/he has made a significant financial or other contribution to the education, training, vocational skills, career or earning ability of the other spouse; s/he had a marriage of long duration and is of an age that may preclude the possibility of gaining employment adequate to be self-sufficient; or s/he has significantly reduced his/her income or career opportunities for the benefit of the other spouse.
Courts typically will approve any parenting schedule which both parents agree is in their children’s best interest. Even if you work well with your former spouse, a specific schedule in writing is required by law. That way, you each will have the same expectations of when you will be with the children. Often, cooperating parents will have a parenting arrangement structured in their parenting plan but will use common sense to adjust the schedule from time to time. Since each family is unique, parents need to determine which schedule works best for them and their children. This may change as the children get older or due to the natural evolution of the separate households. Arizona has adopted Model Parenting Plans which are often helpful. Some common arrangements include the following: the “5-5-2-2” plan which alternates weekends and gives one parent every Monday and Tuesday overnight and the other parent every Wednesday and Thursday overnight. This is an equal parenting time schedule; the “2-2-3-2-2-3” plan which alternates weekends and gives one parent Monday and Tuesday overnights one week and that same parent Wednesday and Thursday overnights the second week. This is also an equal parenting time schedule; and the “One week on/ one week off” plan, which often includes a mid-week dinner visit. This is another equal parenting time arrangement. Most parenting plans will also include: dividing school vacations and recesses; alternating major holidays; reasonable telephone/Facetime/Skype access; and vacation time.
The benefits of a Pre-Nuptial Agreement cannot be overstated. Marriage is a legal status affecting individual property rights. If a marriage ends, deciding how to distribute property is often the biggest source of conflict for couples. Pre-Nuptial Agreements minimize such difficulties by documenting each spouse’s separate property to keep it separate; avoiding court involvement and the potential for a judge to decide on property distribution; assigning debt (credit cards, school loans, mortgages) to the appropriate spouse, so both spouses don’t share debt liability; and avoiding costly, extended court proceedings.
In loco parentis is a latin phrase which means “in the place of a parent.” In the law, in loco parentis is a legal status which must be established in order to seek custody rights for a child to whom you are not biologically related. If you have developed a deep and caring relationship with a child, such that you have effectively taken on the role of a parent, you may be able to obtain legal rights relating to the child without formally adopting him/her.
Yes. In general, you will be able to alter or modify any terms of the Agreement. The changes must be in writing and signed by both parties. The other terms of the Agreement will remain intact, unless you revoke the entire agreement in writing.
Yes, if certain conditions are met. Arizona recognizes third party child rights in certain circumstances. Although cases can be complicated and depend on what would serve the best interests of the child, a person may file for legal-decision making authority or physical placement of a child if: (1) s/he stands in loco parentis to the child; (2) it would be significantly detrimental to the child to remain or be placed in the care of either legal parent who wishes to keep or acquire legal decision-making; and (3) a court of competent jurisdiction has not entered or approved an order concerning legal decision-making or parenting time within one year before the person filed a petition (unless there is reason to believe the child’s present environment may seriously endanger the child’s physical, mental, moral or emotional health). Additionally, the person filing must establish that one of the following applies: one of the legal parents is deceased; the child’s legal parents are not married to each other at the time the petition is filed; or a proceeding for dissolution of marriage or for legal separation is pending at the time the petition is filed. Alternatively, a person other than a legal parent (such as a grandparent) may petition the court for the right to visit the child if is in the child’s best interests, and any of the following are true: one of the legal parents is deceased, or has been missing for at least 3 months; the child was born out of wedlock and the child’s legal parents are not married to each other at the time the petition is filed; for grandparents, the marriage of the parents of the child has been dissolved for at least three months; or for in loco parentis visitation, a proceeding for dissolution of marriage or for legal separation of the legal parents is pending at the time the petition is filed. Third party rights cases are legally quite complex. If you have questions about such issues, you should consult an attorney to discuss your situation.
Any sort of property can be included in the Agreement, such as homes, automobiles, stocks, checking accounts, business ownerships or personal belongings. Debts can also be categorized as separate property. This prevents one spouse from being liable for the debts of the other should the marriage dissolve. Spousal support can be waived or limited in Pre-Nuptial Agreement. However, anything having to do with children born during marraige (custody, support, etc.) in a prenuptial agreement is not binding upon the court.
Either a mother or father can file a paternity action. A mother will typically file for paternity in order to obtain child support from the father. A mother is able to obtain both prospective child support, as well as child support owed by the father for the previous three years. A father will file for paternity to obtain parenting time and legal decision-making abilities for the child. Once paternity is established, the court will enter the necessary orders, allocating parenting time, support obligations, and decision-making abilities to both or either parent. Regardless of who files, both parents will be able to obtain the same relief and judgment from the same action. This means that if a mother files for paternity to collect child support, the father will also be able to secure parenting rights, and vice versa.
After a court has heard and ruled on your case, you may believe that it has made an error in its decision and that you are entitled to a different award, order or ruling. An appeal is a request to have a court of a higher jurisdiction reconsider, and potentially reverse or change, the decision of the lower trial court which originally heard your case. For the Court of Appeals to hear your case, you or legal counsel must file a Notice of Appeal with the court citing legal reasons why reversing or altering the original judgment is appropriate. There are rigid time limits within which this must be done. Appellate cases are typically very legally complex and include deeper analyses of the facts and law. If you wish to file an appeal, it would be extremely beneficial to consult experienced attorney who is well-versed in appellate matters.
By filing a paternity action with the court and obtaining a Judgment of Paternity. If the parents agree who the father of the child is, they may obtain a judgment by agreement. However, if the parents do not agree, the court will order DNA testing of the mother, child, and alleged father, in order to conclusively establish whether someone is the father of a child.
Being found in contempt of court means that one has ignored or neglected to follow a court order that set a specific responsibility or expectation of him/her. Depending on the infraction, contempt of court consequences can include fines, compensatory visitation, a modification to the custody arrangement, and in some instances even jail time. In most cases, if someone is held in contempt, the court will first give them the opportunity to make amends for the violation. One of the more common situations involving contempt of court is failing to pay child support. For more information on violating a child support obligation and being found in contempt, please see the “Child Support” section of this site.
No, so long as the unmarried father is listed on the child’s birth certificate or he has executed an acknowledgement of paternity which has been recorded with the Department of Vital Records. If a child is born out of wedlock, a paternity action can be filed to establish full legal rights and obligations. There is no presumption as to who the father of a child is when that child is born unless the mother is married, in which case it is presumed the mother’s husband is the father. When mother and father aren’t married, the unmarried biological father must go to court to seek an order to establish his rights.
In Arizona, a parent has the legal obligation to pay child support until his/her child reaches 18 years of age or graduates high school, whichever comes later, but not beyond age 19. In other words, if a child is still attending full-time school when s/he reaches age 18, support would contineu until the child graduates high school or turns 19, whichever occurs later. Courts may order a support obligation continue after age 18 or 19 for a child whio is disabled and unikely to be able to be self-supporting.
When spouses have disagreements as to how they would like their divorce resolved, the divorce is contested. Disagreements can be as to any number of issues – which spouse is entitled to which property, whether one is deserving of spousal maintenance, which parenting plan is in the best interest of the child, etc. If a divorce is contested, the spouses must in some way resolve these disagreements, whether it be by mediation or litigation. In this situation, retention of legal counsel is crucial, so that you can understand the appropriate and tactful positions you are entitled to take, in resolving these disputes.
Various enforcement mechanisms exist to compel parents to comply with their support obligations. The court has the power to hold a party in contempt for violating a support order and may order said parent be incarcerated until s/he pays. The non-payor must be allowed an opportunity to “purge” the contempt, meaning to comply with the order. But if s/he does not and if the parent has the apparent ability to pay, the court has the power send them to jail until s/he pays. In addition, many states have criminal penalties for failing to pay child support. Congress also has enacted many enforcement mechanisms, creating greater collaboration between federal and state governments. These include suspension of driver’s licenses and professional licenses, seizure of tax refunds, seizure of bank accounts and investment accounts, and even publishing the name and picture of the non-paying parent on posters and in newspapers.
Even if you and your spouse both agree you want a divorce, the divorce is only “uncontested” if you agree to every provision concerning legal decision-making, parenting time, child support, spousal maintenance, and the division of your property and debts. If any of these matters are disputed and cannot be settled through mediation, settlement conferences, or negotiations with the attorneys, your divorce is NOT uncontested, and a trial may be necessary. You can also agree to different processes to have your disputes resolved, such as Arbitration or the appointment of a Special Master to make those decisions.
In response to federal legislation, each state has adopted official child support guidelines. To receive federal funding, each state is required to have a standardized system for determining child support. These “guidelines” establish the method for calculating child support in each case and are designed to ensure consistency and predictability in child support amounts. The Arizona Child Support Guidelines use a formula to determine the proper amount of child support that considers each party’s monthly income, the cost of health insurance and daycare, and the time spent with each parent. In Arizona, it is mandatory that court’s use the guidelines, however, the court or parties may elect to deviate from the guidelines so long as there are specific legitimate reasons for doing so.
The short answer is yes: retirement benefits earned and accrued during the marriage are considered community property and are therefore subject to division in a divorce. Retirement benefits can be a tricky area in a divorce, especially when one’s employment extends to both before and during the marriage. However, the exact value of the benefits that each party is entitled to depends on a variety of factors, including the time at which they were earned, and the reasons for which they were earned, among others. Once the parties determine exactly who is entitled to what, a Qualified Domestic Relations Order, or QDRO, may be needed. A QDRO is a special court order that addresses the division of retirement benefits.
In Arizona, what was once commonly known as “Legal Custody” is now referred to as “Legal Decision-Making.” Sole legal decision-making gives one parent the right and responsibility to make all major, non-emergency legal decisions including education, health care, religious training and personal care decisions. Technically, the parent is not required to discuss or consult with the other parent. However, even if a parent has sole legal decision-making, it is always best to discuss and obtain the input of the other parent if possible. Joint legal decision-making means both parents share decision making and neither parent’s rights nor responsibilities are superior. In some cases, although the parties may have Joint legal decision-making, the Court order may grant one party final control over specific issues in the event of a disagreement.
Yes. You may be familiar with mediation as a form of alternative dispute resolution (ADR) — a forum for settling disputed issues in the family law case before a trial. In Arizona, couples with children often participate in the Conciliation Services’ court mediation program. Private mediation is also available for all couples and for any disputed issue.
Not always. If parties agree on everything, a “Consent Decree” signed by both parties and their attorneys (if applicable) is sent to the assigned Judge. The Judge will review the Consent Decree and any other documents submitted, and, if everything is in order, the Judge will sign and enter the Decree to finalize your case. If parties do not agree on all issues, a Trial will be held so that the Judge can decide the unresolved issues. Generally, the Judge must issue his/her decision within 60 days after the trial. The Judge’s decision is usually the final Decree, although sometimes the Judge will instruct one of the lawyers to prepare a final Decree to include the Judge’s decision. If no answer has been filed, the filing party may have to go to Court for a brief hearing, so the Judge can enter the Decree by default.
If the child has grown up with both parents involved in their upbringing, the court prefers to keep both parents in relatively close contact with the child. If a parent wishes to move more than 100 miles from their present location with the child, the parent needs the written agreement of the other parent or a court order and must give at least 60 days written notice to the other parent by certified mail. Within 30 days after receiving the written notice, the non-moving parent may ask for a court hearing to prevent the move. Ultimately, the court is guided by the best interests of the child in deciding whether to allow relocation to occur.
No one can predict with absolute accuracy what the total fees will be at the beginning of a case. The final cost of your case will depend on so many things: the complexity of the issues, the time involved, the level of your spouse’s cooperation, the amount and availability of petrinent information, and so on. The breadth and depth of the issues in your case will become more apparent over time and your lawyer should be able to give you an estimate as to the likely future costs as the case progresses. You should discuss those costs with your lawyer in cxomparison to the potential benefits to your case. An exhaustive “leave no stone unturned” approach can be cost prohibitive and simply may be unwarranted. Our attorneys’ hourly rates vary and our firm has options to fit most budgets.
The Best Interests of the Child is the generally-applicable standard by which a judge will evaluate decisions involving children. It involves analysis of several factors that are relevant to a child’s physical and emotional development and well-being, including but not limited to: the past, present, and future relationship between the parent and child; the interaction and interrelationship of the child with the child’s parents or siblings; the child’s adjustment to home, school, and community; if the child is of suitable age and maturity, the wishes of the child; the mental and physical health of all individuals involved; and which parent is more likely to allow the child frequent, meaningful and continuing contact with the other parent.
There is no shortage of benefits to spouses willingly attending mediation to resolve issues, rather than litigating everything in court. About 90% of divorces are resolved through mediation without ever having to go to trial. Mediation enables spouses to ultimately retain final approval over the terms of their divorce, including parenting plans, property division, and awards of support. However, if they decide to instead attend court, that control is removed from the parties and instead placed in the hands of the Judge, who then has sole and final discretion as to how the divorce is resolved. Mediation is a private, less costly, and oftentimes less contentious way by which a divorce can be resolved by the spouses coming and working together, rather than battling it out in the courtroom. There are varying structures of how a mediation is conducted, depending on the wishes of the parties. For example, a common mediation technique involves a neutral, third party mediator splitting up the parties and their attorneys into separate rooms, acting as an intermediary between them and traveling back and forth. This way, spouses can complete settlement negotiations without even having to be in the same room as the other.
In Arizona, what was once historically known as “Physical Custody” of children is now referred to as “Parenting Time.” Parenting time refers to the time during which the parent is able to physically be with his/her children. Like all issues related to children, it is the best interests of the child that guide the court’s determination. Typically, unless the parties agree to otherwise and assuming both are fit and able, the court will award a parenting time schedule that divides time between the parents approximately equally. However, if one’s parenting ability is compromised by substance abuse or health issues, or if a parent has been a perpetrator of domestic violence, a judge is unlikely to award that parent significant time with the children, opting instead to grant limited, more occasional access. In the most extreme cases, a court can order a parent have only parenting time supervised by a third party whose role is to protect the children. Each case is unique, and parenting time will depend on a wide range of factors.
The court considers a wide array of factors in evaluating whether the child moving out of state is appropriate, with the best interests of the child as the primary factor. The court will look at, among other issues: • what advantages relocation would bring for the parent and child; whether the relocation is being made in good faith, and not for purpose of frustrating the other parent’s relationship with the child; and the ability of the other parent to continue to exercise parenting time with the child and comply with any parenting or support orders.
The purpose of a separation agreement is to “promote amicable settlement of disputes between parties to a marriage attendant on their separation or the dissolution of their marriage.” Spouses who wish to divorce may enter into a written separation agreement containing provisions for disposition of their marital property and debts. Divorces often involves marriages of long duration with considerable marital assets. In these complex situations when parties are able to quickly reach agreement, they may enter a written separation agreement which is then submitted to the court and incorporated into their final decree of dissolution.
The answer to this question is very complex. There is no formula supported by law which determines the length or amount of spousal maintenance. Due to the subjective nature of the factors involved, there is often a wide range of possible outcomes . The length and amount of the award of spousal maintenance depends on a number of factors including :the standard of living established during the marriage; the duration of the marriage; the age, employment history, earning ability and physical and emotional condition of the spouse seeking maintenance; the ability of the spouse from whom maintenance is sought to meet that spouse’s needs while meeting those of the spouse seeking maintenance; the comparative financial resources of the spouses, including their comparative earning abilities in the labor market; the contribution of the spouse seeking maintenance to the earning ability of the other spouse; the extent to which the spouse seeking maintenance has reduced that spouse’s income or career opportunities for the benefit of the other spouse; the ability of both parties after the dissolution to contribute to the future educational costs of their mutual children; the financial resources of the party seeking maintenance, including marital property apportioned to that spouse, and that spouse’s ability to meet that spouse’s own needs independently; the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment and whether such education or training is readily available; excessive or abnormal expenditures, destruction, concealment or fraudulent disposition of community, joint tenancy and other property held in common; and the cost for the spouse seeking maintenance to obtain health insurance and the reduction in the cost of health insurance for the spouse from whom maintenance is sought, if any.
In terms of the legal work involved, there is little difference between the two. Most, if not all, of the issues involved in a divorce (child custody, support, division of assets and laibilities, etc.) also must be resolved in a legal separation. But legal separation does not end a marriage-it merely ends the existence of a couple’s community property status. As a result, after a legal separation is entered, spouses are, in fact, still married to one another. Legal separation can be a good option for couples if they are unsure they want the permanency of a divorce or if they prefer not to divorce for financial or religious reasons.
Like Spousal Maintenance, a Judge’s decision on whether your spouse will have to pay (reimburse you) for attorney fees is discretionary. If the Judge determines that your spouse is in a better financial position or that he/she acted unreasonably, the Court may order your spouse to pay some or all of your Attorney’s Fees. There are numerous other issues and questions that may arise in any divorce. It is always best to consult an attorney regarding this complex and emotional process.
The amount of time it takes to resolve any case depends upon the complexities and number of issues involved. In Arizona, there is a mandatory 60 day waiting period from the time a divorce petition is served on the other party until the divorce can granted by the court. However, on average, a divorce takes between six (6) to twelve (12) months to complete. In complex cases, there may be other professionals whose expertise is required, such as custody evaluators, property or business appraisers, and/or vocational experts. The more professionals involved, the longer it typically takes. If your case is complicated, or if you and your spouse cannot reach agreements, the case will take longer to complete.
Arizona is a community property state. Simply put, all property acquired during the marriage except for gifts or inheritance is considered to be community property. Assets that were brought into the marriage by one spouse are considered to be that spouse’s sole and separate property and are not subject to division unless there has been a commingling of these assets. In some cases, the appreciation or increased value of a separate asset might be considered to be community property. Under those circumstances, an experienced attorney would need to review the facts to determine if a community interest exists.
By law, within 20 days of being served (30 days if served out of state), you must file a response to the divorce petition. Your Response must be filed in the Superior Court with a copy sent to your spouse or his/her lawyer. If you do not file your response within this time, the other side can file an “Application for Default” which is sent to you by mail. The Application for Default is your final notice to file a response within 10 days of the date the Application for Default is filed. The Application for Default is mailed to you so even though you may receive it several days after it is filed, the 10-day period begins to run on the date the Application for Default is filed. If you still fail to file your response after the Application for Default is filed, your spouse may seek a divorce decree from the court without you having an opportunity to defend yourself.
An Arizona divorce includes the division of all community or marital property owned by the couple. Usually, this property includes most of the property that was acquired during the marriage, including the home(s), home furnishings and appliances, vehicles, financial assets, art, investments, a privately owned business, and retirement accounts. In some cases, intangible property may need be divided. Intangible property that is divisible might include the value on an invention patent or the goodwill in a business. When both spouses make a significant contribution to this value, these intangible assets may be divided. Through discovery, an attorney can help a spouse to identify all the assets that are available for division and valuation.
The most common methods of service are acceptance of service and personal service. Acceptance of service involves having the opposing party or his/her lawyer sign a document before a notary public acknowledging receipt of the legal documents. The document the party or lawyer signs is called an “Acceptance of Service.” The date of service is the date the Acceptance of Service was signed before the notary public. Personal service occurs when a licensed process server delivers the papers to the other spouse in perosn. With persoanl service, the spouse being served is not required to sign anything. Instead, the process server files an affidavit with the court confirming delivery of the documents on the person who was served.
In Arizona, community property is divided equitably. Note that “equitably” does not necessarily mean “equally.” Rather, property is divided in a manner that the Judge decides is fair. There are no statutory factors which the Judge is required to consider in dividing property, so the judge retains a high level of discretion and flexibility. What is considered “equitable” is typically very fact specific, and each case is unique – however, common factors to be considered include the length of marriage, each spouse’s respective contributions to the marriage, and the source of funds used to purchase the property in question. Division of property can be either done by the judge or agreed upon mutually by the parties. However, reaching the division of property you desire can be a complex and delicate process. Consulting an attorney who is well-versed and knowledgeable about Arizona community property law is advisable.
No–attorneys are ethically prohibited form representing both parties to a divorce. Even when parties agree on all the issues in their case, there is a fundamental conflict of interest that precludes one attorney from representing both parties.
Domestic violence is a serious and unfortunately prevalent issue in households across the country. Victims are oftentimes confused and do not know how to reach out for help. Orders of Protection are orders issued by a court that explicitly forbid a person from having contact with the person requesting the order. Depending on the circumstances, contact may be so limited as to prevent the person from coming within a certain distance of the requesting party, or to refrain from any sort of contact or communication, including texts, phone calls, and emails. Orders of Protection can include and protect multiple parties considered to be at risk, including children. However, there are limitations to who you may obtain an Order of Protection against. In Arizona, Orders of Protection can only be obtained against someone whom: you are married to, or at one time were married to; you reside in the same household with; you are in a serious dating relationship with or engaged to be married to; you are related by blood or marriage ; or you share a child with.
It is not required that you bring anything. The consultation is designed to give you the necessary information to allow you to make an informed decision on how to proceed. The attorney will provide an overview and discuss with you parenting issues, financial issues, and other topics related to divorce. The attorney will ask about your and your spouse’s employment status and income, as well as your assets and liabilities, so it is helpful to have a general concept of what assets and debts are to be divided, if known. If you have a pre-nuptial agreement, it is helpful to bring a copy to the consultation.
It is not necessary that you first be actually harmed before obtaining a protective order. So long as you are able to allege facts that demonstrate to the court that the person from whom you need protection has, or may, abused, harassed or threatened you, the court may grant you an order of protection.
A Post-Nuptial Agreement is a written agreement entered into between spouses, after they have already married. Its purpose is to establish the parties rights and responsibilities in relation to certain assets or debts. Spouses may decide to enter into an agreement to avoid potential stress and confusion should problems arise in the marraige in the future. Like a Pre-Nuptial Agreement, a post-nuptial agreement can address issues such as property and debt – but anything relating to children or childcare is not binding upon the Court.
Requests for protective orders may be filed at any city court, justice court, or superior court in Arizona. You may also obtain an Order of Protection online, by visiting https://www.azcourts.gov/domesticviolencelaw/Protective-Order-Forms Once the court grants the Order, it will be served on the other party by a state law enforcement officer. Once served, that person will be expressly forbidden from making any sort of contact with you. If he or she violates the Order, that person may be arrested and charged with a crime.
To be legally enforceable, the agreement must be in writing, and must be made after both parties make full and clear disclosure of their complete financial situation and resources. Post-Nuptial Agreements must be fair and equitable, and both parties must sign the agreement having been educated as to the terms of the agreement, with the opportunity to first consult with legal counsel and not under any sort of threat, stress, duress, pressure or coercion to sign.