Divorce and Children.
When divorce involves minor children there are a number of things to know and consider as you begin the divorce process. In addition to property division and the other financial details, you need to consider:
- Where the kids will live?
- What the parenting time/visitation schedule should be?
- How will decisions regarding the children be made?
- Who will pay for what?
- How will you communicate with your ex?
Family law rules and procedures can be complicated and there are myriad of costly mistakes that can be made, some of which you may not even realize for one or two years after your divorce. That is why it is so important to know the law and do things right the first time. We can help.
Child Custody Laws
SB1127
On January 1, 2013, law SB1127 became effective and changed some aspects of Arizona family law. One of the biggest changes was abolishing the term “custody” in family law because of the common misconceptions and confusion surrounding the term. The important thing to remember about this new law is that only the terms have changed; the two basic questions regarding children and family law have remained the same.
- When do I have the children and when does my spouse have the children?
- Who makes major decisions (e.g. school, health, religion) about the children?
When most people think about divorce and parents fighting over children, the term “custody” often comes to mind. However, the word “custody” is misleading when used in family law because it generally makes people think only of the first question, “when do I have the children?” In reality, the term “custody” could be used to describe both parenting questions listed above. Most people do not equate “custody” to “decision-making.” Thus, new terms are now used to answer the above questions.
What You Should Know
About Parenting Plans
- Legal Decision Making
- Parenting Time
- What Else?
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Custody Issues and Legal Terminology
Best Interest Of A Child
Is a standard by which a court determines what arrangements would be to a child’s greatest benefit, often used in deciding decision-making and parenting time matters and in deciding whether to approve an adoption or a guardianship.
Legal Decision Making
Legal Decision-Making replaced the term “legal custody”. The term refers to who makes ‘major decisions’ regarding the children. ‘Major decisions’ include education, medical care and religion. There can be either Sole Legal Decision-making or Joint Legal Decision-making.
Parenting Time
Parenting Time replaced the term “physical custody”. It refers to both custody and visitation. Parenting Time defines where the children live and when they see each parent. Equal parenting time is when both parents have the children for the same amount of time.
Child Support
Child Support is a court ordered payment paid by one parent to the other parent for the financial support of a child. The amount is calculated by statutory guidelines, called Child Support Guidelines, which calculated and reflected in a Child Support Worksheet.
Frequently Asked Questions
How long will it take to get a divorce?
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.
Where do I file for my divorce?
There are currently four courthouse locations in Maricopa County, which are located Downtown, Northeast, Northwest and Southeast (see resource guide for other county courthouses).
What if my spouse filed and I do not want to get divorced?
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.
What is a Covenant Marriage?
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.
What if I change my mind after starting a divorce?
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.
What if I do not have money to pay the filing or fee?
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.
How much does it cost to file for divorce in Maricopa County?
The Petitioner (initiator of the divorce) must pay Maricopa County $349.00 as of April, 2022 and the Respondent pays $274.00 for filing an answer.
Can my spouse and I file for divorce together?
No, Arizona does not have a provision for any type of joint filing.
Do I need an attorney for my divorce?
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.
Is it possible to represent myself in court?
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.
Where do I get a divorce?
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.
When is my dissolution final?
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.
Who actually divorces me?
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.
Am I considered the "bad guy" if I file first?
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).
Does it matter if my spouse was having an affair?
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).
What is a divorce "Decree"?
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.
Who can start a divorce case?
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.
Will I have a jury if my divorce proceeds to trial?
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.
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Divorce With Children“We hired this law firm to represent our son in trying to get joint custody. They did a fabulous job keeping us informed as to their plan each week. I have to say I do not think my son would be enjoying his daughter right now with his 50/50 custody if it was not for this law firm.”
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