Scottsdale Gray Divorce Attorneys

What You Need to Know About Gray Divorce and the Gray Divorce Process in Phoenix & Scottsdale, AZ

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What is Gray Divorce?

Gray divorce is a term that refers to divorces between couples who are 50 years of age or older. Typically, the only issues to be resolved are the financial issues of separating the marital property and determining if any spousal maintenance should be awarded. Gray divorces tend to involve higher assets than other divorces because the parties have acquired more assets. Many gray divorces are also marriages that have lasted several decades.

Best Law Firm has helped many people 50 and older get divorced. Our attorneys know how to effectively represent clients who are 50 and older. Our attorneys amicable and tough. We work toward a resolution without compromising your interests. Settlement is always part of our game plan, but we are always ready to go to trial, and our attorneys have ample trial experience.

 

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Issues In Gray Divorce

Arizona is a community property state, which means that anything that acquired by either party during the marriage belongs to both parties. This includes houses, retirement accounts, stock portfolios, bank accounts, vehicles, businesses, and debts. There are exceptions for items that were acquired by gift or inheritance. If your case goes to trial, the Court will divide the community party “equitably”—this generally means, the Court will divide it equally. The parties, though, can agree to divide it another way.

Spousal maintenance is where one spouse is ordered to pay the other spouse a certain amount of money each month after the divorce is finalized. It is rare, though, that one spouse is ordered to pay spousal maintenance indefinitely.

 

Spousal maintenance is perhaps the murkiest area of Arizona law. Spousal maintenance is the issue most likely to go to trial in a “gray divorce” than any other issue. We see more awards of spousal maintenance in a gray divorce than any other type of divorce. Spousal maintenance has a big impact on both parties’ financial futures.

This is a complex issue, and we recommend that you speak with an experienced family law attorney before negotiating or reaching any agreements. We see too many people reach agreements prior to speaking with an attorney that put them in a precarious financial position. These agreements are hard to undo.

Whatever retirement account either of you earned during the marriage is community property and will be divided as part of the divorce proceeding unless the two of you agree otherwise. When a retirement account must be divided, the parties should divide it using a Qualified Domestic Relations Order (QDRO).

When a retirement account was earned partially before marriage and partially during the marriage, only that part earned during the marriage is community property.

Divorce will impact your health insurance. Often, one party is providing the health insurance for both spouses. Often, the paying party is anxious to get the other spouse off of his or her health insurance. And just as often, the spouse receiving health insurance is worried about losing their health insurance.

Until the divorce is finalized, the party paying for health insurance cannot remove the other party from their health insurance coverage. But once the divorce is finalized, the party who has not been paying for their health insurance will no longer be able to be on the other party’s health insurance. After divorce, each party is responsible for their own health insurance.

We have sometimes seen couples choose to do a legal separation rather than a divorce so that one spouse can stay on the other spouse’s health insurance.

Special Issues In Gray Divorce

DOMESTIC VIOLENCE

Arizona is a no-fault state for divorce (unless the marriage is a covenant marriage). That means that when an Arizona court divides the community property, the Court does not examine why the marriage failed. This means in a marriage where domestic violence has taken place, the Court will not reduce the offending spouse’s share of the community property because he or she engaged in domestic violence.

This does not mean that domestic violence is not important. Spouses who are the victims of domestic violence have other remedies available to them in the law, including seeking an Order of Protection, pressing criminal charges, or even filing a lawsuit. Additionally, we have helped many people escape abusive relationships. We can help develop a safety plan for you to escape your marriage.

ADULTERY

If there are agreements, the court may have them recorded as a formal and binding agreement. The court will also determine what, if any, services and/or orders the parties need to help conclude the matter. Those services and/or orders could include drug testing of one or both parents, mental health evaluations, vocational evaluations and business evaluations.

ADULT CHILDREN

People going through a gray divorce often ask us if their spouse will be responsible for providing for the adult children; most frequently, we are asked if the spouse can be ordered to pay for the adult child’s college education. The two spouses can always agree to such an arrangement, but if the parties cannot agree, a judge is unlikely to order one party to continue to provide for an adult child or to pay for an adult child’s education. Be aware, though, of two exceptions:

Where there is a 529 plan, UTMA account, or financial asset dedicated to the children, different rules may apply. We recommend consulting with an experienced family attorney regarding these assets.

Additionally, if an adult child has special needs to the point they cannot provide for themselves, a Court may order child support for that child even if they are now an adult.

LIFE INSURANCE

Under Arizona law, the beneficiary designation for certain financial instruments that name a spouse as a beneficiary, such as life insurance or a will, are automatically revoked upon divorce. But a spouse can choose to reaffirm that beneficiary designation, thereby avoiding the impact of the automatic revocation statute.

Where spousal maintenance is ordered, it is common for the party paying spousal maintenance to keep the receiving spouse as their beneficiary.

SOCIAL SECURITY

Following divorce, a spouse (“drawing spouse”) may eligible to draw upon their former spouse’s social security benefits if the marriage has lasted 10 or more years, the drawing spouse is 62 or older and not married, and the benefit is more than what the drawing spouse would receive from his or her own social security benefits.

Frequently Asked Questions About Divorce

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 a year or longer.

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 gray 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 is a divorce "Decree?"

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.

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 March, 2010 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.

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.

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

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.

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 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.

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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