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Child Custody FAQs Part 3

 

How does custody affect child support?
The physical custody arrangement is one factor considered in the worksheet (see Chapter 5.) The more time you have your child, the more expensive it is.

We have not been to court yet and there are no orders. Who gets the kids right now?
It is basically a free-for-all, unless the two of you can decide. Just remember that 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 detrimental to your obtaining legal custody.

Can I get temporary custody?
Yes. 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 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.

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

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?
History of care giving is only one factor in determining the best interests of the children. 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 learning to be 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.

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 books to them at night, he started doing it on his parenting time. I bet he is just doing it to look good. What gives?
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.

Will the court tell me when I can see my kids?
Only if you and your spouse 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 an hour 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.

Will my kids have to go to court?
No, judges do not care to speak with children. Your children can talk to counselors and they can write reports. Also, the conciliation services may choose to interview your children as part of a parenting conference. Children over the age of 6 or 7 can usually be interviewed.

I think my spouse?s behavior reflects instability and potential likelihood for harm to my children if my spouse does not undergo the proper treatment. Is there anything that I can ask the court for?
This is beyond the scope of this book, but you could ask for a Rule 63 psychological examination or a custody evaluation.

What is a parenting conference?
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. (See ?Parenting Conference Through the Courts,? earlier in this chapter.)

Frequently Asked Questions Regarding Divorce & Legal Separation

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

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 custody 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.

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

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.

How do I obtain a legal separation in Arizona?

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.

May I stop an Arizona legal separation proceeding?

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.

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

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.

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

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.

How do I start a legal separation?

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 a dissolution.

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

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.

What happens if I get served with separation papers?

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.

Does it matter who files first?

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.

Do all separations have to go to trial?

No, in fact the majority of separations in Arizona eventually settle without the need to go to a final trial. However, 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.

How are property and debts divided in a legal separation?

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. This is the same law that applies to property in a dissolution. (Please see Chapter 6.)

Requirements To File For A Divorce In Arizona & Other Frequently Asked Questions

There are three requirements to file for divorce in Arizona.

1.? One party must have domiciled?(lived) in Arizona for at least 90 days at the time the divorce was filed. If one party was stationed here in the military, that party must have been stationed in Arizona for 90 days.

2. Conciliation has been attempted and not worked or has not been attempted and will not work.

3: The marriage is irretrievably broken. The marriage is not a covenant marriage, as designated on your marriage certificate, or if it is a covenant marriage, the requirements have been met. Very few marriages are covenant and you would know if yours was.

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.

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

The petitioner (initiator of the divorce) must pay Maricopa County $321 as of March, 2010, and the respondent pays $256 for filing an answer.

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.

Where do I file for my divorce?

There are currently four courthouse locations in Maricopa County, which are located Downtown, Northeast, Northwest and Southeast. These include:

Central Court Building

201 W. Jefferson, Phoenix, 85003-2243

Family Court Administration: (602) 506-1561

Old Courthouse

125 W. Washington, Phoenix, 85003-2243

Family Court Administration: (602) 506-1561

Northeast Courthouse

18380 N. 40th Street, Phoenix, 85032

(602) 372-7601

Southwest Regional Center

4264 W. Tierra Buena Lane, Surprise, 85374

(602) 372-9400

Southeast Court

222 E. Javelina Ave., Mesa, 85210

(602) 506-2020

You can file your documents at any courthouse, but the judge assigned to your case will most likely work in the courthouse closest to the home address of the petitioner (the person who files first).

Other courthouses in the state of Arizona are listed in Appendix D.

Can my spouse and I file for divorce together?

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

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.

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.

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. Maricopa County has a self-help web site at:

http://www.superiorcourt.maricopa.gov/SuperiorCourt/Self-ServiceCenter/index.asp.

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.

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 one spouse to 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 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.

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.

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 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.

Where do I get a divorce?

In Arizona, only the Superior Court (a state 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 at least one 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.

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.

What if I do not have money to pay the filing or response 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.

When is my dissolution final? (A.R.S. ?25-325)

Your dissolution of marriage is final after the judge or commissioner signs the decree and files it with the clerk of the court.

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

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

When can we start mediation?

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

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 cancelled or modified to the detriment of the other spouse.

Introduction

 

Divorce is one of the most devastating and life-changing events you will ever experience. You need to know what you are getting into and be involved in the process. There are decisions to make for yourself and your children. We urge you to become educated about this process, so you can make wise decisions. You most likely are reading this in an effort to save money, but even if you choose to retain an attorney, the Divorce Coach will empower you by providing the information necessary to help yourself. You most likely have heard all kinds of wrong information about divorce, custody, child support and alimony. You need to have the playbook, so you know what attorneys and the courts know. The differences between law and equity are both important concepts to understand. It is helpful to understand the decisions that you must make along the way and the possible outcomes. Once you see the full game plan, you might want to avoid this scenario entirely.

Before you decide about the ?big game? (your divorce), you have to ask yourself if you are ready and whether you really want to be in the game. Divorce is a big decision; it should be taken seriously and thought through very carefully. We hope that you think carefully through each step of this process, keeping an open mind as you go. You do not want to end up at halftime or when the final whistle blows wishing you had never driven to the stadium. There is quite a bit of work involved in a divorce, but be aware that even though you may be exploring this option for your life, you can decide to stop at any time. It is not like jumping off a cliff; you can take baby steps until you know it is right for you. The beginning of a divorce is a reversible course. If you discover along the way that you would like to reconcile with your spouse, you should feel free to do so. You can actually quit anytime before the court signs the decree.

By reading this book, you are already way ahead of the game. You want to know the rules, the plays, the strategy and what the outcome of divorce will look like for your family. This book will assist you in figuring out what options you have and what decisions you need to make. Some people start and finish this process without any help from an attorney. That might work fine for some people; for others, not so well. Some people begin and then start feeling overwhelmed. This book will take the mystery out of the process. You want to do this right the first time: there are at least an equal number of post-divorce modifications filed in Arizona as there are first-time divorces. (Modifications are changes that are filed to change the original paperwork; often, these modifications are necessitated by mistakes made in the original divorce).

This introductory chapter outlines various aspects of the divorce process that are dealt with in more detail in succeeding chapters. A glossary of family law terms appears at the back of the book, as well as some useful Arizona statutes (laws) and a resource guide for online assistance in Arizona.

Can the mediation reach a custom tailored agreement for me and my spouse?

The relaxed atmosphere of mediation allows for creative settlements that are tailored to the parties’ individualized circumstances. Mediation permits the parties, rather than the court, to control the outcome of their case. The tailored agreements typically result from both parties’ determination of how they will share their children, how they will make major decisions concerning their children, who will pay child support and how much, and how to equitably divide property and debts.

What are the advantages of mediation for my family?

Mediation is designed to help parents focus on the best interests of the children. The mediation process helps the parties remain aware that despite their differences that brought them to the mediation process, they must continue to communicate for the sake of their child. The mediation process will preserve the parties’ relationship, which will benefit the child in the future years. It is also important to recognize future issues that might arise, and put a mechanism in place that will prevent future litigation.

Once an agreement is reached how can I put it in writing?

Once the parties have reached a verbal agreement, Best Law Firm here in Scottsdale can draft a Memorandum of Understanding to memorialize the parties’ agreements that complies with Family Law Rule 69. We can also draft the petition and supporting documents to initiate your case in the court, as well as draft and file the consent decree, parenting plan and property settlement agreement to finalize your case. We can draft all of your documents, from start to finish.

What happens when the parties reach a verbal agreement?

Two persons cannot divorce or legally separate unless, and until, certain paperwork is filed with the court. In Arizona, Family Law Rule 69 requires parties to have a signed, written agreement for it to be binding in the court. In some cases, the parties may not need or want their agreement to be enforceable. In other situations, it is required that the agreement be filed with the court. Here in Scottsdale, Best Law Firm can assist the parties in completing all the required paperwork. We can also draft the necessary decree for your case or other paperwork, such as child support.

How does mediation help us reach agreements?

There is no coercion, and both parties must be in accord in order for there to be any agreements. Often, more than one conference may be needed to resolve all the issues. Family issues invoke a great deal of emotion, and sometimes people need time to think about the process and the decisions that need to be made. There is no rush about this process.

 

Some parties may be able to reach agreements on all issues in one session, while others may require multiple sessions. Additionally, the parties can meet together or individually with the mediator. For example, some parties may wish to sit together at a table with the mediator, while others may prefer to be in different rooms and have the mediator move between the parties, acting as a liaison between the parties. The latter approach helps minimize the emotion associated with meeting face-to-face and promotes progress on the individual issues. Each case is different, and our goal is to find an approach that will work best for your family.

How does the mediator help resolve issues?

The mediator, in an impartial role, will help the parties define the issues, explain the legal process in the state of Arizona and then assist the parties in finding mutual agreements. The mediator’s job is to keep the parties conversing about the issues and help them move toward agreements. To accomplish this, the mediator engages in conversation with the parties to identify issues and possible solutions. Throughout the conversation, the mediator may propose various settlement options.

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