Frequently Asked Questions about Family Law in Arizona

Arizona Family Law F.A.Q.


Family Law FAQs

Q: Do I need an attorney for my family law matter?

A:

No. Arizona law allows you to do this yourself. You are considered pro se or pro per; you must follow all the same rules as parties with attorneys. You may have to go into a courtroom, but you are held to the standard of an attorney. But, even if you do this yourself, it is always a good idea to have an attorney review your work and give you some legal advice.

Q: Is it possible to represent myself in court?

A:

Yes, as it is not a requirement that you have an attorney to represent you in court proceedings. However, the same rules and procedures apply whether you have an attorney or not, which means all papers must be correctly completed and filed on time.

Q: Where is the court?

A:

The Maricopa County Superior Courthouses are listed above with their address and contact information.

Q: Where can I get more information about the Maricopa County Superior Court?

A:

The court has useful information online at: http://www.superiorcourt.maricopa.gov/

Why Choose Us FAQs

Q: What areas of law do you practice?

A:

We only practice family law. Within the family law realm we offer services for divorce, legal separation, child custody, child support, spousal maintenance, relocation, father’s rights, third-party rights, domestic violence and modifications.

Q: Do you offer free consultations?

A:

Unfortunately we do not offer free consultations. Information discussed during a consultation is sensitive by nature. Any legal advice we provide must adhere to the Arizona Family Law Rules and Procedures. As such, to protect your privacy and our duty to you, we charge a fee for our time and expertise.

Q: How much is a consultation?

A:

A one-hour consultation with an attorney is $200. During this consultation you will receive legal advice, learn about your options and we will help you create a game plan going forward. If you look at the big picture $200 for a consultation is the best money you can spend.

Q: Why do I need a consultation?

A:

Individuals often come to us after trying to manage their case on their own or after experiencing a court disaster. Don’t let that happen to you because some mistakes can be very difficult and very expensive to fix. It is easy to fall into the trap of thinking that you can handle your legal issues all on your own. There are plenty of websites that offer do-it-yourself forms and they try to make legal matters seem simple. Unfortunately, family law can be complex and not knowing all of the Arizona Family Law Rules and Procedures can have detrimental consequences. Even if you want to handle your matter on your own, consult with an attorney first and be confident that you understand the process and the law.

Document Preparation FAQs

Q: What’s the difference between using Best Law Firm as opposed to a company like Legal Zoom for my document preparation?

A:

Doc Prep services like Legal Zoom are not law firms. They cannot give you specific legal advice. When you use our services, you know your documents have been reviewed by a lawyer and if you have any questions during the process you can contact us at anytime.

Q: How much does it does it cost?

A:

It depends on what you need. We offer flat fees for most of the required court documents. See Above for a complete list of our costs and fees.

Q: How long does it take to get my documents drafted?

A:

Once we receive all the required information and verification pages from you, your documents will be ready for review within 1 week.

Q: Can I pay to have an attorney review my documents?

A:

Yes. Just schedule a consultation with us and bring your documentation with you. We can review all of your documents to ensure that you have included everything you need. We can also take care of Filing and Serving your documents.

Q: Are there court filing fees?

A:

Yes. All filing fees are payable to the Clerk of the Superior Court when you file your documents. For a complete list of Maricopa County Superior Court visit their website. The most common filing fees are listed below:

Petition for Dissolution (Divorce) – $338.

Response to Petition – $269.

Establish Support – $268.

Answer Establish Support – $199.

Modification to Existing Order – $84.

Your Options FAQs

Q: Do I have to hire an attorney?

A:

No. All of the required forms are available on the Maricopa County Court’s website.

Q: Why do I need an attorney?

A:

What you don’t know can hurt you. When you represent yourself you are held to the same standard as an attorney. The courts aren’t lenient with the rules. If something is filed incorrectly or deadlines are missed you’ll get no sympathy from the judge, just a quick lesson on the penalties for not meeting the standards of the legal system.

Q: Do you offer payment plans?

A:

We offer pay-as-you go plans. Each month you pay a fixed fee that’s agreed upon at the outset of your matter and we represent you through the duration of your matter or until our representation is no longer needed.

Q: How much will it cost to get started?

A:

$200. The first step is a consultation. At the initial consultation we will learn the facts of your case and figure out your ideal outcome. From there we can decide on a plan of action that meets your needs.

Divorce FAQs

Q: How long will it take to get a divorce?

A:

According to Arizona Revised Statute, section 25-329 and Arizona Rules of Civil Procedure 4.1(c), you must wait at least 60 days from the date your spouse was served before going to Court and having the Decree of Dissolution of Marriage entered. This assumes you and your spouse have agreed on the terms or your spouse is in default. When the spouses cannot agree on how to settle issues such as assets and debts, the length of time to get divorced can be longer. If you litigate the issues, it can take up to a year.

Q: How much does it cost to file for divorce in Maricopa County?

A:

The Petitioner (initiator of the divorce) must pay Maricopa County $338.00 as of March, 2010 and the Respondent pays $269.00 for filing an answer.

Q: Who actually divorces me?

A:

The divorce decree will be from the Judge or Commissioner assigned to your case who works for the Superior Court of Maricopa County, which is a state court.

Q: Where do I file for my divorce?

A:

here are currently four courthouse locations in Maricopa County, which are located Downtown, Northeast, Northwest and Southeast (see resource guide for other county courthouses). Maricopa County location include:

Q: Can my spouse and I file for divorce together?

A:

No, Arizona does not have a provision for any type of joint filing.

Q: Am I considered the “bad guy” if I file first?

A:

Someone has to be the Petitioner and someone has to be the Respondent. There is no advantage or disadvantage to either (other than perhaps assignment of the courthouse nearest to the Petitioner).

Q: What if my spouse filed and I do not want to get divorced?

A:

You cannot stop your spouse from divorcing you but you can file a request with the court to order a one hour conciliation meeting to try and reconcile. These rules change, depending on the budget, there may be a fee associated with reconciliation. During this “time out” for 60 days, there can be no “discovery” (see glossary) taking place.

Q: Do I need an attorney for my divorce?

A:

Arizona law allows you to do this yourself. You are considered pro se or pro per; you must follow all the same rules as parties with attorneys. You may have to go into a courtroom but you are held to the standard of an attorney.

Q: Does it matter if my spouse was having an affair?

A:

No, Arizona is a “no-fault state,” which means that the court does not require that one spouse prove blame or responsibility in order to end the marriage. However, in Covenant Marriage (see below), a court will not enter a decree of dissolution of marriage unless certain criteria are met. (See Arizona Revised Statute, Section 25-903 for the specific requirements).

Q: What is a Covenant Marriage?

A:

You will most likely know if you have one of these; it is an optional type of marriage created by the state legislature that requires partners to complete marital counseling prior to marrying and to sign a special declaration to obtain a marriage license. In a covenant marriage, a legal separation or divorce may be granted only for certain reasons listed in state law. The law regarding covenant marriages can be found in Sections 25-901 through 25-906 of the Arizona Revised Statutes.

Q: Is it possible to represent myself in court?

A:

Yes, as it is not a requirement that you have an attorney to represent you in divorce proceedings. However, the same rules and procedures apply whether you have an attorney or not, which means all papers must be correctly completed and filed on time.

Q: What if I change my mind after starting a divorce?

A:

If you and your spouse decide to stay married, the divorce case can be canceled or “dismissed” by filing a request with the Clerk of Superior Court and signed by both parties.

Q: What is a divorce “Decree?”

A:

Arizona Revised Statutes §25-312 and §35-325 provide that A Decree of Dissolution of Marriage is the final order of the Court which makes each party a single person again, and includes separate orders concerning child custody and visitation, child support, division of property and debts, spousal maintenance and any other appropriate orders. The Decree is the final order of the court legally ending the marriage. Spouses are not “divorced” until the court grants the divorce and the Decree is signed by the judge. A Decree of Dissolution is a court order and can be enforced just as any other order of the Court. A certified or duplicate copy of the Decree can be obtained from the Clerk of Superior Court for a small fee.

Q: Where do I get a divorce?

A:

In Arizona, only the Superior Court can grant a divorce. To get a divorce, one spouse must start a court case in the Superior Court. Although the Superior Court has a facility in each Arizona County, a court case to end a marriage must be started in the county where the person requesting the divorce lives.

Q: Who can start a divorce case?

A:

In Arizona, either spouse can ask the court for a divorce. A divorce is not awarded to either spouse; rather, it simply changes the status of the marriage relationship.

Q: What if I do not have money to pay the filing or fee?

A:

You may request that the Court waive or postpone payment of the filing or response fees. Forms must be completed and signed by you and submitted to the Court. The forms are free of charge and are available in the office of the Clerk of Superior Court.

Q: When is my dissolution final?

A:

A dissolution of marriage is final after the judge or commissioner takes testimony, signs the Decree and files it with the Clerk of the Court.

Q: Will I have a jury if my divorce proceeds to trial?

A:

No, if your case is litigated, you will not have a jury. One judge will make all the decisions that the parties cannot agree on.

Q: When can we start mediation?

A:

You can start this at anytime, even before you file.

Q: I cannot afford health insurance. If I file for divorce, can my husband stop paying for it while we are in the divorce proceedings?

A:

No. After one spouse is served with the dissolution or legal separation documents, no insurance of any kind can be canceled or modified to the detriment of the other spouse.

Legal Separation FAQs

Q: What is the difference between a legal separation and a divorce in Arizona?

A:

An Arizona legal separation and an Arizona divorce are almost identical. In fact, there are more similarities than differences. In both cases, the court will issue final orders dividing the spouses’ debts and assets, enter decision-making and parenting time orders regarding the parties’ children and enter child support and spousal maintenance orders. Additionally, the community property rights and obligations previously existing between the spouses are terminated. The only significant difference between a divorce and legal separation in Arizona is that the parties are not legally restored to the status of single persons and may not, therefore, remarry.

Q: Why would someone choose a legal separation over a divorce in Arizona?

A:

Although there are many personal reasons a person may seek a legal separation, as opposed to a divorce, some of those reasons may be: religion, health insurance and debts, such as gambling. Also, circumstances may exist in which a spouse has a significant physical ailment that would not be covered by his or her health insurance plan or by some other plan if the parties were divorced. In some circumstances, a legal separation may provide a more suitable alternative to a divorce.

Q: How do I obtain a legal separation in Arizona?

A:

A legal separation in Arizona is obtained in the same manner as a divorce. In both cases, an initial petition is filed with the Superior Court. The petition is served on the other spouse, and the parties either submit a settlement agreement resolving all of the issues in the case, or the issues are presented to the court at a trial, after which, the judge issues final orders resolving the issues in the case. The procedural steps in an Arizona legal separation case are identical to the steps necessary to complete a divorce.

Q: May I stop an Arizona legal separation proceeding?

A:

You may only stop a legal separation proceeding if the other party has not been served with the petition or the other person has been served with that petition, but he or she agrees for the case to be dismissed. In either case, the dismissal of the legal separation must occur before the court enters a final Decree of Legal Separation.

Q: May I later convert an Arizona legal separation to a divorce?

A:

You may always convert an Arizona legal separation to a divorce at any time. In fact, you may convert the legal separation to a divorce before or after the final Decree of Legal Separation is issued by the court.

Q: What does the court do if one spouse seeks a legal separation and the other spouse seeks a divorce?

A:

The court has no discretion when one spouse seeks a legal separation and the other spouse asks the court to enter a divorce. The court must allow the divorce to proceed if either spouse requests a divorce.

Q: How do I start a legal separation?

A:

To start a legal separation, one party needs to file a petition for legal separation. There are two different petitions; one for families with children and one for families without children. The petition must be served on the other party, just as in dissolution.

Q: Who gets to live in the home and how are bills paid during the period the legal separation is being prosecuted?

A:

These issues can be addressed by agreement between the parties, but if you do not have agreements, the court can grant temporary orders to address specifically those and other issues. These temporary orders will govern until the case is finished. This is the same process in a dissolution.

Q: What happens if I get served with separation papers?

A:

Many people simply ignore the papers they receive, or simply take the word of the other spouse that they do not have to do anything. Ignoring the paperwork and failing to file a response can lead to disaster. Despite how much you may want to cooperate with your spouse, or be unable to react due to the emotional stress, you cannot ignore the paperwork. A divorce or separation is like any other civil lawsuit. If you do not respond, you will be in default and can lose many rights that could have protected you.

Q: Does it matter who files first?

A:

In Maricopa County, the party who files first will have his or her case set in the courthouse nearest their address. There are four courthouses in the Valley and you may prefer being in one location rather than another.

Q: Do all separations have to go to trial?

A:

No, in fact the majority of separations in Arizona eventually settle without the need to go to a final trial. But, if you are unhappy with the settlement proposals being made by your spouse or they are refusing to accept your proposals, then you may need to mediate, obtain counsel, or go to trial.

Q: How are property and debts divided in a legal separation?

A:

Arizona is a community property state. This means that any property that was obtained, income acquired or debt incurred during the marriage will most likely be divided evenly. Property that was gifted to or inherited by one spouse or was owned by a spouse prior to the marriage is considered separate property and may be protected from the claims of the other spouse.

Child Custody FAQs

Q: Do the courts favor mothers?

A:

There is no such preference. There are many factors that the court considers but courts do not favor mothers over fathers.

Q: How does the court decide legal decision-making?(A.R.S. §25-403)

A:

The court looks at the following factors:

The past, present and potential future relationship between the parent and the child.

The wishes of the child’s parent or parents as to legal decision-making.

If the child is of suitable age and maturity, the wishes of the child as to the custodian.

The interaction and interrelationships of the child with the child’s parent or parents, the child’s siblings and any other person who may significantly affect the child’s best interest.

The child’s adjustment to home, school and community.

The mental and physical health of all individuals involved.

Which parent is more likely to allow the child frequent, meaningful and continuing contact with the other parent.

The nature and extent of coercion or duress used by a parent in obtaining an agreement regarding legal decision-making.

Whether a parent has complied with chapter 3, article 5 of this title.

Whether either parent was convicted of an act of false reporting of child abuse or neglect under section 13-2907.02.

Q: We are not yet divorced and my wife took the kids to New York. Can she do this?

A:

Once the divorce is filed and served, neither parent can take the children out of state without permission of the other parent or the court.

Q: Can I stop my ex from dating when she has the kids?

A:

No, as long as they are safe, there is not much you can do. You have the right to know who the children are spending time with and whether they are spending the night somewhere other than their home with the other parent. Be reasonable in these requests but keep your children safe. You might want to know the person’s birth date and social security number so you can run a background check on him/her. You have a right to know your children are safe.

Q: How much do I have to pay for the kids?

A:

It all depends; this is discussed in the child support section of our website.

Q: Can she schedule soccer when they are with me?

A:

The short answer is no. It is best if this can be negotiated. It is unknown what each judge would decide. Some believe that a parent can only schedule on their own time. This basically eliminates your children from most activities. This is probably one of the most hotly litigated issues after divorce. Think of it this way: it is not “your time;” it is your child’s childhood.

Q: My wife has the kids every other weekend but she works and leaves them with her mother. What can I do?

A:

You could have an agreement called a “right of first refusal.” This is a common provision which reads that if one parent who has the kids is gone for more than 4 hours, s/he will call the other parent and offer them the “right” to parent the kids before anyone else. If the other parent is busy, then Parent #1 can leave the kids with a responsible person of their choice. In the past this has created a great deal of litigation and is not a favored provision by most judges.

Q: My wife has the kids every Monday and Tuesday, but she is starting school and leaves the kids with her boyfriend. Can I have parenting time with my children instead of her boyfriend?

A:

The right of first refusal would apply. Also, you have every right to know exactly who is taking care of your children when your ex is not home; this includes name, address, phone number, ID information so you can do a background check if you desire. This is not to say that you use such requests as harassment; in fact you have a similar obligation to your ex to let her know who you are leaving the kids with, if anyone. You both have the continuing job to make sure your children are safe.

Q: My ex smokes pot almost daily. Should he or she have parenting time with the children?

A:

Not unless it is supervised. Drug use will preclude him from having unsupervised parenting time. You should ask the court to have him drug tested at TASC (Treatment Assessment Screening Center). Their website is: www.tascaz.org. You might want to consult with an attorney as this issue can become complicated.

Q: My ex has physically abused me. Can he still be awarded legal decision-making and parenting time with the kids?

A:

Significant domestic violence is contrary to joint legal decision-making. Please consult with an experienced family law attorney.

Q: My-14-year old does not like her father. Should I make her go visit him?

A:

Do you know why she does not like to visit him? If he is safe and his house is safe, you should do everything you can to encourage the relationship. She may be taking on your negativity or he may just not be a very attentive parent. Help him be a better parent by role modeling for him and discussing this with him. Maybe they could go to counseling together. Teenagers often do not want to be with either parent. It is important, however, to provide ample time with each parent.

Q: My ex mother-in-law is coming for vacation. She wants to see our kids for a concert on my Saturday. I am afraid if I give in, I will always be giving in. Should I let my kids see her?

A:

You should very seriously consider it. Do your kids want to go? Remember, while this is “your” time, it is also their childhood. Try to negotiate and get make up time or be gracious and let it go, knowing that your former ex will return the favor when your parents come to town. Keep your kids first.

Q: My former ex wants to go on a cruise to other countries. I will not let the kids get passports. Can he get my children passports without my approval?

A:

This can get sticky, since there are hundreds of international abductions every year. If you truly believe it is for a cruise, you might consider it. You can ask for the written itinerary and documentation showing that they are really going on the cruise. Generally the abduction of children comes as no surprise to the abandoned parent. You could agree to have the passports kept in a safety deposit box that requires two signatures to retrieve. If your ex has citizenship in another country, you might want to do research to find out about whether that country is a member of the Hague Convention and whether you could retrieve the children if they were kidnapped. You should seek legal advice if kidnapping is a real concern.

Q: We decided our kids would be Catholic. My ex will not take them to mass on her Sundays. Can I ask the Court to make my ex take our children to mass?

A:

The court will not mandate where each parent takes the children to worship on their respective weekends. If you have a written agreement in your decree as part of your joint parenting agreement, the court will enforce it.

Q: My son wants to go to his band banquet on Friday night, but it is my parenting time and I do not want him to go. Should I let my son go?

A:

Is this a question you are seriously asking? If you contemplated not allowing your son to attend his band banquet then take a step back and think about your son’s best interest, not yours. If you do not allow your child to go, you are forcing your son to spend time with you because it is “your” time. You should seriously consider whose needs you are thinking about. We have heard on more than one occasion that it is “not in the child’s best interest” to be involved in school activities during one parent’s time, but that is simply not the case. It is important as a parent that you stay involved in your children’s lives. Your life should revolve around their activities, not the other way around.

Q: How does parenting time affect child support?

A:

The parenting time arrangement is one factor considered in the worksheet.

Q: We have not been to court yet and there are no orders. Who gets the kids right now?

A:

It is basically a free-for-all, unless you all can decide. Just remember, what you do now can be reported to the court later. If you unreasonably keep the children away from one parent, out of vindictiveness, that will be contrary to you obtaining legal decision-making.

Q: Can I get temporary legal decision-making and parenting time?

A:

You must file a motion asking for it, after the petition for divorce is filed or with the petition as it is being filed. The court will set a hearing date, take evidence and make a decision if you all cannot decide. You really should be able to decide on a written temporary agreement. Sometimes parents try different schedules until they find one that works. Not all the children in a family have to have the same schedule.

Q: We have a parenting schedule that we both agree with. Can we put it in writing?

A:

Yes. You can write and sign an agreement, as can be found in the Arizona Rules of Family Law Procedure Rule 69 that will be valid in court. You can attach it to your joint parenting agreement or re-write into your final joint parenting agreement. It is valid, even if it is not filed with the court. It is a good idea to put it in writing during the pendency of the divorce just so you have some certainty.

Q: My husband never really helped parent the kids but now he wants 50/50 time with them. Is he likely to get 50/50 parenting time?

A:

Who has provided primary care in the past is no longer considered in determining what arrangement is in the children’s best interests. Perhaps he never had the chance to co-parent in the past. But if he is doing a good job, the kids are happy and he is now a good, involved father, congratulations to your family! Fathers often shift their work focus after a divorce so they can stay involved in their children’s lives and that is a good thing.

Q: My husband is doing whatever I do. If I take the children for ice cream on my weekend, he does it on his next visit. When I started reading them books at night, he started doing it on his parenting time. I bet he is just doing it to look good. What gives?

A:

Perhaps you are modeling parenting behavior for him. He is actually learning how to be a good parent by watching you. Good for your family! Keep up the good work! Be proud of him and happy for your kids.

Q: Will the court tell me when I can see my kids?

A:

Only if you and your ex cannot agree. You really do not want to turn this life-changing decision over to a stranger who will only get to know your family in a few hours or so of an evidentiary hearing. Not only do you relinquish all control, but having to testify and perhaps say negative things or answer embarrassing questions can leave the family scarred and impact future interactions. There is no need to litigate these issues unless there is a domestic violence, drug or other abuse issue and you must have the help of the court to protect your children.

Q: Will my kids have to go to court?

A:

No, judges do not care to speak with children. Your children can talk to counselors and they can write reports. Also, the Court’s Conciliation Services may choose to interview your children as part of a Parenting Conference. Children over the age of six or seven can usually be interviewed.

Q: I think my ex’s behavior reflects instability and potential likelihood for harm to my children if my ex does not undergo proper treatment. Is there anything that I can ask the Court for?

A:

You could ask for a Rule 63 psychological or psychiatric examination or a custody evaluation.

Q: What is a parenting conference?

A:

It is a meeting with a neutral third party who talks with both parties and then drafts a report to give to the court. It can be ordered by the court or requested by either party.

Property Division FAQs

Q: How will our property be divided? (A.R.S. §28-211 & 25-318)

A:

You and your spouse may decide this for yourselves, but is important to note that Arizona is a community property state. In accordance with Arizona Revised Statute §25-211, community property is all property acquired during the marriage by the efforts of either party through the date of service of the Petition for Dissolution. The court presumes that each spouse is entitled to 50% of the assets acquired during marriage. Also, the courts generally seek to divide debt equitably in a divorce case. This does not automatically mean that each spouse will have 50% of the debt assigned to them. The court will take into consideration the spouse’s income, ability to pay debts and issues of waste of community property assets.

Q: Is everything we own considered community property?

A:

According to Arizona Revised Statute, section 25-211, generally anything that a married couple accumulates during the marriage is considered community property, that is, both spouses own an undivided share of the whole. Exceptions to this general principle include those assets acquired prior to the marriage, by gift, devise (by a will) or descent (inheritance). Because the Arizona courts start with a strong presumption that anything acquired during marriage is a community item, the spouse claiming a particular item is not community property has the burden of proving otherwise.

Q: What property is not divided?

A:

Per Arizona Revised Statute §25-213 “Separate Property” cannot be divided by the Court. Separate property consists of items owned before the marriage or received as an inheritance or gift during the marriage and kept separate during the marriage. It is possible for a person to gift his or her separate property to the community-for example, by re-titling the property as community property.

Q: What about the debts?

A:

Arizona Revised Statute §25-318 provides that Debt incurred during the marriage is presumed to be community debt. Generally the Court divides debt equally. Debt incurred by a spouse before the marriage remains the separate debt of that spouse. The Court may also order the parties to submit a debt distribution plan. Within thirty days after receipt of a written request for information from a litigant which includes the Court name and cause number, a creditor shall provide the balance and account status of any debts of either party or both spouses, identified by account number, for which the requesting spouse may be liable to the creditor.

Q: What if my spouse does not pay the community debts as ordered in the final decree? Can our creditors force me to pay?

A:

Yes, Arizona Revised Statute §25-318 states that a creditor can collect a marital debt from either spouse regardless of which spouse is ordered to pay the debt by the Court. The innocent spouse then has the right to recover from the obligated spouse, unless he or she files bankruptcy. If a party fails to comply with an order to pay debts, the Court may enter orders transferring the property of that spouse to compensate the other party.

Q: What happens when the spouses own a business together?

A:

During the divorce process, the court will usually attempt to keep the things the way they presently are when it comes to the day-to-day operations of a family business. A business valuation expert can assess the value of the business during the pendency of the divorce matter. The court, with the input from the business valuation expert, will determine the value of the family business. The spouse that is ultimately awarded the business may be required to pay the other spouse that individual’s share of the business. That amount is normally one-half of the value assigned to the family owned business. You should consult an attorney for this matter.

Q: What if neither of us can afford the house?

A:

This is no different than if you were together. You have the same problems and issues as if you were together (divorce just makes it more difficult). The mortgage company expects both of you to pay. If there is a deficiency judgment because of a line of credit, the creditor will look to both of you to pay, no matter what your divorce agreement says.

Q: Decide who pays for repairs during the dissolution, who should sell and how long they have to sell? If one party agrees to buy out the other party, when do you appraise the house? What if one party made the down payment with money earned prior to marriage, but after marriage put the house deed in both names as joint tenants?

A:

The house is community property and the spouse who made a down payment may have “gifted” the property to the other spouse. Some courts will award the spouse a return of the down payment and then split the net equity.

Q: What if I paid the down payment, my spouse has lived here during our entire marriage but her name is not on the deed?

A:

The house most likely remains your sole and separate property but your spouse has an equitable lien on the house for the community effort put into the house during the marriage that increased its value. You may want to consult an attorney.

Q: My spouse and I purchased the house together but I made her sign a disclaimer deed two years later when I refinanced the house. The house is all mine, right?

A:

Quite possibly, but while disclaimer deeds are valid, there can be suspect issues. Disclaimer deeds make it look like you were trying to cheat your spouse out of the house. A court will want to know if she was represented by counsel and how much she understood about that she was doing. And again, there is the equitable lien issue as outlined above.

Q: My husband will not get out of the house and I just filed for divorce.

A:

You will have to file a motion to ask the court for exclusive use of the home. This is discretionary with the Judge and will likely take a month or more to get a hearing; usually this is part of a temporary orders hearing. If you both own the house, maybe you can negotiate this move. Once one person moves out, the leaving spouse should not come and go in the house without permission of the other spouse. Some judges consider the “leaving spouse” as moved out of the house until further court order.

Q: Who pays for repairs while our house is for sale?

A:

You can agree that the party living in it pays for everything under a certain amount such as $100. Any other repairs are split 50-50 and can be reimbursed at the sale. It might be wise to purchase a home warranty to prevent any unexpected expenses.

Q: My spouse made the down payment but after our marriage put the house deed in both names as joint tenants. Is the house community or separate property?

A:

The house is community property and the spouse who made the down payment most likely “gifted” the property to the other spouse.

Q: Who gets the kids’ furniture?

A:

This is negotiable, but it should be a consideration if one parent has to buy all new furniture, beds, etc. for the kids in a shared custody arrangement.

Q: What is considered my sole and separate personal property?

A:

Usually jewelry given, gifted to you, your sports equipment, your personal electronics, clothing, and whatever you owned prior to marriage. Also, anything you owned prior to marriage and anything you inherited is your sole and separate property.

Q: Who gets our digital camera?

A:

If you both use it and bought it with community funds, it needs to be divided along with other property.

Q: Who gets the vehicles if both vehicles have debt and no equity?

A:

Usually whoever gets the vehicle gets the debt. Remember, the lender will not honor your decree; your spouse can ruin your credit if he/she does not pay. There can still be an equitable set-off.

Q: I inherited money when my mom died six years ago and put my husband’s name on the account. Is this money community or my sole and separate money?

A:

This might be considered gifted to him and commingled with community funds. If you can trace the amount, you can have it returned to you. A fair way to handle this is to allow you to get your lump sum deposit back. If there is an issue of commingling, such as you putting other community money into the account, it is discretionary with the judge. Let’s assume that you inherited $100,000 and put it in an account and never did anything else with that account. You should be able to consider it sole and separate and it should be awarded to you.

Q: What if my spouse does not pay the community debts as ordered in the final decree? Can our creditors force me to pay?

A:

Yes, Arizona Revised Statute §25-318 states that a creditor can collect a marital debt from either spouse regardless of which spouse is ordered to pay the debt by the Court. The innocent spouse then has the right to recover from the obligated spouse, unless he or she files bankruptcy. If a party fails to comply with an order to pay debts, the Court may enter orders transferring the property of that spouse to compensate the other party.

Q: I am getting ready to file for divorce. Can I take all the money out of our joint savings account?

A:

No, because although the temporary injunction is not in place, you are intending to file and it is not fair to take all the money. You may take half of the money and this should not cause any problems in case you have to explain this to a judge.

Q: I won an award for a car accident and put it in an account in my name alone. Do I have to split it during the divorce?

A:

No, a personal injury settlement for pain and suffering is your sole and separate property.

Q: I won a settlement for a car accident and put it in an account with both our names on it. Do I have to split it?

A:

If you can trace the original amount, it will most likely still be considered your sole and separate property. If it is commingled beyond recognition, you will most likely have to split it.

Q: I had stocks before marriage, but bought more stock after marriage. Who gets the stocks?

A:

The stocks you had prior to marriage are your sole and separate property. The stocks that you purchased with community funds are community property.

Unmarried Parents FAQs

Q: What can the attorneys at Best Law Firm do for me?

A:

It is important to have attorneys explain to you what the consequences will be of any legal action. Even if a legal action is simple, it can have important consequences down the road. The attorneys at Best Law Firm will be able to explain this to you and help you fill out any documents and submit them to the court thus simplifying the process for you.

Q: My girlfriend just had our baby. We are not married, what are my rights?

A:

You have no parental rights until paternity is established. That does not mean, however, that the Father should be denied time with the child. A later determination about disputed custody will include the court reviewing how each parent treated the other parent with regard to access to the baby or child. If a parent denies the other parent time with the child for no good reason, it will be reviewed at a later date regarding custody. Good reason could include domestic violence, drug abuse, mental illness, criminal behavior or child abuse.

Q: My name is on the birth certificate signed by the hospital staff; doesn’t that prove I am the father?

A:

If it is uncontested, yes it does.

Q: If I obtain paternity does that mean I can be required to pay child support?

A:

Yes, it will. Every parent must pay for their children, whether they live at the house or whether you must pay the other parent who cares for them.

Q: Does it matter how old my child is?

A:

Not as long as he/she is a minor. Arizona law allows parents to establish paternity anytime during pregnancy up until the child turns 18.

Q: Is it free to submit this paperwork for the state?

A:

No. The state does charge a fee depending on what paperwork is required to prove paternity.

Q: Can we do this without the court?

A:

Yes, you may be able to draft a legally binding agreement, signed by both parties, without filing it with the court. It is not however, a court order unless a Judge signs off on your agreement.

Q: Can I do this without an attorney?

A:

Yes, you can find the necessary paperwork on the Maricopa County website.

Spousal Maintenance FAQs

Q: How is spousal maintenance paid?

A:

It can be paid directly from one spouse to the other. Both parties should keep very accurate records of the payments. The court may order the payments to be made through the Clearinghouse, administered by the State of Arizona. They keep track of payments for you. Failure to pay is more easily handled in the court if the payments go through the Clearinghouse. Be aware that there is a lag time between the time payment is made and the time it is received if you go through the State.

Q: When does spousal maintenance end? (A.R.S. §25-327)

A:

Spousal maintenance terminates upon the death or remarriage of the receiving spouse. This is called non-modifiable but excludes these two situations. There will be a beginning date and an ending date for the payments if you negotiate it and if a court orders it.

Q: Can spousal maintenance be modified?

A:

Yes, under certain circumstances and depending upon how your decree or property settlement agreement was drafted.

Q: What if my spouse quits working in order to stop having to pay spousal maintenance?

A:

A former spouse cannot avoid spousal maintenance or child support by voluntarily reducing or terminating his or her employment. The Court has the discretion to attribute income to a spouse who voluntarily reduces his or her income and to require the paying spouse to pay spousal maintenance or child support in the former amount. The test is earning potential, not the actual earnings if there was some kind of mischief.

Q: What if my former spouse refuses to give me current financial information relating to support or changes in jobs? (A.R.S. §25-513)

A:

You may send a written request by certified mail to your former spouse’s employer or former employer requesting detailed information about all pay and benefits paid to your former spouse by the employer. You may also file a Petition for Order to Show Cause or request for expedited hearing requiring your spouse to provide you with the relevant information and to keep you apprised of his or her current employer’s address. You should consult with an attorney.

Q: Is spousal maintenance considered my salary for child support calculations?

A:

Yes.

Q: Can either a husband or a wife receive spousal maintenance?

A:

Yes.

Q: Can I waive my spousal maintenance?

A:

Yes.

Q: Does it matter how many children we have?

A:

No.

Q: Am I entitled to live the same as I did when we were married?

A:

No. The style to which you have been accustomed is not the standard.

Q: What if my husband had a really good job and now is unemployed?

A:

Depends, if he cannot find employment, you may not be entitled to any spousal maintenance. You will have to investigate the reasons for the unemployment.

Q: What if my husband has quit his job on purpose to avoid paying me?

A:

If you can prove it, the court will consider the earning potential, not necessarily what he is actually earning. You would want to get his work records through discovery to find out if he quit, was fired, or was laid off.

Q: Is spousal maintenance taxable?

A:

Check with your accountant but in general, spousal maintenance is taxable to receiver and tax deductible to the payor.

Mediation FAQs

Q: How long does the average divorce take in the litigation process?

A:

In the Phoenix area, the average divorce proceedings take 6-12 months.

Q: What is mediation?

A:

Mediation is a negotiation method of nonbinding dispute resolution involving a neutral third party mediator who assists the parties reach a mutually agreeable resolution. Mediation is the fastest growing Alternative Dispute Resolution (ADR) method. In mediation, the parties create their own settlement terms with the assistant of an impartial mediator.

Q: How much does mediation cost?

A:

On average, mediation can cost approximately less than 70-80% of total litigation costs. At Best Mediation Services, parties can pay by the hour in a step-by-step process.

Q: Does mediation cost less than two attorneys?

A:

Yes. Instead of spending money on two separate attorneys, mediation allows the parties to pay for one mediator to resolve all of the issues in the case.

Q: How will the costs be determined or divided between the parties?

A:

The parties can decide how to divide the cost of the mediation.

Q: What paperwork must be filed with the court to complete the mediation process?

A:

No paperwork is required to be filed unless you are getting divorced, legally separated or want child support payments to be made through the State of Arizona Support Payment Clearinghouse.

Q: Where does this paperwork get filed?

A:

Best Mediation Service also provides a document preparation and filing service. The paperwork agreed to in mediation can be filed with the Maricopa County Superior Court.

Q: Can I be divorced after mediation?

A:

You will be divorced after the required documents are filed with the court and a judge signs the consent decree.

Q: Can the mediator also act as your attorney?

A:

No, a mediator cannot act as both your mediator and your individual attorney because that would be a conflict of interest. If you would like Ms. Best to represent you individually to handle your case, you may visit our website at www.bestlawaz.com. Once an attorney becomes your mediator, he or she cannot represent either party.

Q: What legal effects does mediation present?

A:

Non-binding: A party in the mediation process is not bound to any outcome reached in the mediation process when they agree to mediate, sign an Agreement to Mediate or enter into the mediation process. Binding: Mediation is binding only if an agreement is reached by both parties, it is in writing, and it is signed.

Q: Can I still have an attorney if I mediate?

A:

Yes, retaining individual counsel is an option; however it is not necessary. Individual attorneys may advise their clients of their legal rights throughout the mediation process and assist in reviewing agreements reached in mediation before they are signed or filed. The individual attorney may or may not choose to attend the mediation.

Q: If I’ve already filed for divorce, can we still mediate?

A:

Yes, mediation is an option for parties’ even if they have already filed for divorce. Often times, parties may decide litigation is not cost-effective or that with the help of a third party they can resolve their issues without the long, expensive litigation process.

Q: When is mediation successful?

A:

Mediation is successful when both parties are active, willing, and cooperative in the mediation process. The parties must have a desire to compromise and find a resolution. In addition, the parties must act in good faith, be professional and listen to the other party.

Q: Who will prepare the mediation agreement documents?

A:

Best Mediation Services provides document preparation services, including Rule 69 Agreements (Memorandum of Understanding) that memorialize the parties’ agreements, the petition and supporting documents to initiate your case in the court, and draft and file consent decrees, parenting plans, and property settlement agreements to finalize your case.

Q: What if we cannot make an agreement?

A:

If all outstanding issues cannot be resolved in the mediation process, the court will have to decide them. The mediator cannot represent either party if the mediation fails, nor can either party use any settlement negotiations as evidence in court under Arizona Rules of Evidence, Rule 408, and the family law rules.

Q: Are there areas of family law that cannot be mediated?

A:

Substance abuse and domestic violence are issues that are not generally suitable for mediation.

Q: What are some helpful personal documents to bring into mediation?

A:

All of this will be addressed at the initial meeting with the mediator. Each party is under the full disclosure requirements of the Arizona Rules of Family Law Procedure, including Rule 49.

Q: What is special about Best Law Firm?

A:

We care. Our attorneys have witnessed the devastation that conflict causes families. We recognize that a spirit of cooperation is a lifelong gift that families can give to themselves.

Q: Who can I call for help?

A:

Best Law Firm (480) 219-2433.

Q: When can we start mediation?

A:

You can start this at anytime, even before you file.

Modification of Parenting Time FAQs

Q: Do I meet the necessary requirements to ask the Court for help in changing my current Parenting Time Order?

A:

Before you can seek help from the Court and file a Petition to Modify, you must determine whether you current Parenting Time Order has a “Mediation Clause.” This clause requires parties to go through mediation services to resolve their issues before they can seek help from the Court. This “Mediation Clause” can be found in your Parenting Plan. If you are wondering whether your Parenting Plan has a mediation clause, call us Best Law and we can go over your current Parenting Plan with you.

Q: If my Parenting Plan requires that I attend Mediation, what do I do?

A:

If you Parenting Plan requires that you attend Mediation, you can file a Mediation Request with the Court. Some Parenting Plans will identify whether parties are required to go through Conciliation Services for mediation or whether they can seek private mediation services. Call Best Law if you need assistance setting up Mediation with the other parent.

Q: If my Parenting Plan DOES NOT require that I attend Mediation OR me and the other parent have already gone to Mediation, can I petition the Court?

A:

If you have either already attended Mediation or your Parenting Plan does not require that you attend Mediation, you must meet two additional requirements before you can file a Petition with the Court.

Q: It must be at least one year (or longer) since the current Parenting Order was entered into (see exceptions below); and

A:

You must prove to the Court there has been a material change in circumstances directly affecting the welfare of the child. (This is where you tell the Court why you are asking for a change to the current parenting time order. What has changed since the last order was entered until now?)

Q: What if my child is in danger? Or the other parent is not following the current Parenting Time Order?

A:

There are two exceptions to the one-year requirement before being able to petition the court to change a current parenting time order.

If it has been less than 6 months and the other parent is not following the current parenting time order; AND/OR There is an emergency situation.

Once you meet these requirements, you may file a Petition with the Court to modify the current Parenting Time Order. The Court will make changes to the current Parenting Time Order as it relates to the Best Interest of the Minor Child. The Court looks at A.R.S. 25-403 when determining the factors.

Q: What happens after I file a Petition to Modify?

A:

First, the other party will need to be served with the Petition to Modify.

Once served, the other party has 20 days to Respond (or 30 if they reside out of town) to your Petition.

Once the other party has responded, the Court will set a Court date.

Q: What happens if the other party does not respond?

A:

If the other party does not respond, call Best Law Firm to assist you with filing a default action. A default action is situation where one party is being non-responsive. The default action will notify the Court. Once a default has been filed with the Court, a hearing is set and the other party has ten (10) days to respond. If the other party does not respond within that time frame or does not appear at the Default Hearing, the Court will grant you the requests that were outlined in your Petition to Modify, so long as it is in the best interests of the minor child(ren).

Modification of Child Support FAQs

Q: What is a child support modification?

A:

A modification of child support is the process of legally changing the child support amount paid by one parent. A child support modification is necessary when there has been a change in income of either parent or other financial changes in child care, health insurance, day care costs, etc.

Q: If a person wants to modify child support, how do they proceed?

A:

Under Arizona law, a parent may go to the court to modify child support. Specifically, a parent should go to the Superior Court of Arizona; the only court able to grant a child support modification.

Q: Do I need to provide both parent’s income for a modification? What if I don’t know the other parent’s income?

A:

Yes, you need both parent’s income.  If the parent filing the modification does not know the other parent’s income; they may indicate that the amount stated is an estimation.  Thereafter, the parent filing for modification has the right to request a verification of the other parent’s income from their employer.

Q: Is there a waiting period for when can a parent go to the court to ask for a modification?

A:

No, a parent may ask the court for a modification to child support at any time. However, it must be shown there is a change of circumstances before it will be modified or terminated.

Q: Can child support in arrearages be modified or forgiven?

A:

No, any amount past due plus interest, accrued before the date of notice of a motion to modify child support, cannot be modified or forgiven. However, an exception is if the parties agree in writing to the modification.

Q: After I file a modification, when does the new child support take effect?

A:

Usually the new child support will take effect on the 1st day of the following month after filing. For example; if a petition is filed on January 5th, the new child support, given that the modification is accepted, will start on February 1st.

Q: What are some other resources available to me regarding Child Support modification?

A:

You can visit the Superior Court website for your particular county, contact the Clerk of the Court, contact the Arizona Department of Economic Security or visit their website at www.azdes.gov. Title 25 of the Arizona Revised Statutes available online. The Maricopa County website is http://www.superiorcourt.maricopa.gov/.

Q: I already have a support order, but the payments are barely enough for my child. Is it possible to change the amount of monthly support I receive?

A:

Under federal and state law, you have the right to request a modification of your child support order. The Division of Child Support Enforcement (DCSE) can help you review for a modification of your child support order if you qualify. The review is based on the current income of the parents, the Arizona child support guidelines, and if there is a situation that is substantial and continuing, which would change your order by 15 percent or more. The review may result in an increase, decrease, or no change in your child support order. If you believe your case meets these criteria, you may click on the link to the modification packet and complete all of the required forms. Return them to the Division of Child Support Enforcement, P.O. Box 40458, Phoenix, AZ 85067; or you may go to a local DCSE office to pick up a modification packet; or you may contact DCSE at (602) 252-4045 or (800) 882-4151. If your review shows that a modification of your order is appropriate, they will send your case to the Attorney General’s office who will take it to court.

Q: I am a non-custodial parent, but my child lives with me now. Can I change the child support order?

A:

Yes. When there is a change in visitation or custody of the child, you can either go to court or ask for a change in the child support order, or you may ask DCSE to modify the court order. You may be able to reduce child support or begin receiving child support from the other parent.

Q: If my child support order is from another state, where should I ask for a review?

A:

There are a number of factors that determine where a review is actually conducted. If you have a case managed by DCSE or another state’s child support agency, you may request a review for a modification of your child support order to the child support agency that you normally contact for assistance. If you do not have a case with DCSE, you will need to consult with the court or a private attorney.

Q: I am receiving Temporary Assistance for Needy Families. Can I still have my child support order reviewed?

A:

Under Federal law, DCSE is required to review and, if appropriate, adjust a child support order every three years for families receiving Temporary Assistance for Needy Families.

Q: How do I enforce the current or modified Child Support order if my former spouse stops paying?

A:

You can request an assignment order under A.R.S. § 25-323 and § 12-2454. An Income Withholding for Support is available on the Superior Court website to be filled out and filed with the Court.  This will require your former spouse’s employer or other payor to withhold the amount from his or her wages or money owed to you and to send that amount directly to the AZ clearinghouse.

You may also want to file a Petition to Enforce Child Support, Child Support Arrears and Medical Expense Reimbursement. All three of these issues should go in the one Petition because you want the Court to enforce the current order in effect, have the Court enforce the amounts not paid by your former spouse, along with any medical expenses.  Ask for attorney’s fees in the Petition if you choose to hire one for this Petition.

Q: What if my grandchild is living with me. There is a child support order for the non-custodial parent to pay child support, but the payments are going to my child. How can I receive the child support?

A:

It is possible to help a new caretaker of a child get child support through a process called a Transfer of Support Rights. This is just a transfer of support payments to the caretaker. Assuming the payments are going through the Arizona Clearinghouse, you will need to provide proof that you have had the child for at least 30 consecutive days. Both parents under the current child support order will be notified about the change in payments as well. It should be noted that if you are receiving public assistance for yourself and a child included in the child support order, the Division of Child Support Enforcement (DCSE) may retain these payments while you are receiving public assistance. The easiest thing to do is fill out an application with the Department of Economic Security. An application can be found in various ways and are described in the chapter under the section “How Do I Sign-up with the Arizona Clearinghouse?”

Relocation FAQs

Q: I’m buying a house 10 miles down the road. Does the Arizona Relocation Statute apply to my move?

A:

If both parents are entitled to custody or parenting time and both parents reside in Arizona, at least 60 days’ advance written notice must be provided to the other parent before a parent may relocate the child outside Arizona, or relocate the child more than 100 miles within Arizona.

Q: I have a job offer in another state. I need to notify the other parent. What do I do?

A:

The written notice must be sent by certified mail, return receipt requested. A parent who does not comply with the notification requirements is subject to court sanction.

Q: I sent written notice to the other parent via certified mail. What happens next?

A:

The non-moving parent may request a hearing to prevent relocation of the child, but must do so within 30 days after notice is made. After 30 days, any petition or other application to prevent relocation of the child may be granted only on a showing of good cause.

Q: I just received notice of the other parent’s request to relocate with my children. What can I do?

A:

If the other party plans to relocate with the children, and you oppose the move, you can file a motion to prevent the relocation. You must do so within 30 days of receipt of the written notice. Typically, Courts are more likely to preclude a party from relocating with the children if the move has not occurred yet. Courts tend to be more hesitant to order a party who has already moved to return if the motion to prevent relocation was not filed on time.

Q: The non-moving parent requested a hearing to prevent relocation. What can happen at the hearing?

A:

The moving parent must demonstrate to the Court that the move is in the best interests of the children. The best interest factors are outlined in A.R.S. §25-403 and 408. Courts tend to attribute greater weight to certain factors such as the potential benefits of the move for the relocating children and parent; the reasons for the relocation; whether the move permits for sufficient parenting time for both parents; how the move will affect the child; the child’s relationship with each of the parents; which parent has historically provided primary care for the child(ren).

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