By Cindy Best
Family law can be complex and intimidating, and there is no shortage of myths and misconceptions circling how divorce and issues involving children are handled in Arizona. Below is a list of the ten major points of family law that you should be aware of before heading to court:
Arizona is one of nine states in the country that uses a community property system. In Arizona, it is presumed that each spouse has an equal one-half interest in ALL items of community property. So, what is community property? In Arizona, it is presumed that just about ANYTHING that was earned during the marriage is community property, and that each spouse should be entitled to receive a share of each and every asset during a divorce. This includes homes, paychecks, bank accounts, cars, furniture, jewelry, retirement accounts and even pets While this may seem like a fairly straightforward and simple ways to divide up your “stuff” in the event of a divorce, there are a number of pitfalls you need to be aware of. For example, while Arizona considers that vast majority of what is acquired during a marriage to be community property, there are some items that don’t qualify. Inheritance and gifts are not considered community property, nor are funds received for pain and suffering in personal injury settlements. To complicate things further, separate property (usually the property that you have before you enter the marriage or property that is earned after your divorce has begun) CAN TURN INTO COMMUNITY property if it’s not carefully managed during the marriage There are a number of things that can happen over the years to cloud the nature of what you own, and it’s not uncommon for these sorts of disputes to turn into major roadblocks standing between you and settling your divorce. When property is at issue, it makes sense to work alongside an experienced attorney who is familiar with the nuances of Arizona community property laws.
At the beginning of 2013, Arizona made dramatic changes to the wording of several major laws used in family law practice. Lawmakers have almost completely removed the word “custody” from Arizona Statutes, and have replaced it with two separate terms: “legal decision making” and “parenting time.”
Legal decision-making is the right to make decisions regarding healthcare, education and religion for your children. Parties will typically be seeking either “sole legal decision making,” where one parent calls all the shots, or “joint legal decision making,” where the parties are meant to work together and have equal say in all decisions. “Parenting time” is physical time spent with your child, which is what many people think of when they hear the word “custody.” In most divorces involving minor children, the parties will adopt a formal parenting time schedule and it is this schedule that will determine when and for how long each parent will have their kids.
It is important to realize that legal decision-making and parenting time are two sides of the same coin. The fact that parents may have joint legal decision making of their children does NOT mean that they necessarily have equal parenting time Conversely, just because one parent has more parenting time with the children does NOT mean that they have a greater say in making decisions about education and health care. The concepts of legal decision-making and parenting time are distinct, and it is important to realize that the two do not necessarily need to be equal when you’re negotiating these issues in your family law matter.
Spousal maintenance is the name for “alimony” in Arizona, and it is NOT automatically awarded. In Arizona, a party must make a formal request for spousal maintenance as a part of their Petition for Dissolution in order for the court to even consider the issue. Once requested, whether or not you’ll be eligible to receive support from your former spouse is entirely dependent on the facts of your case. There are a number of considerations that the Court must make before they can decide what and how much to award you and it all needs to be taken into account before the court can decide on anything.
Issues involving spousal maintenance can be difficult and are often times the focal point of heated and costly litigation. If you require spousal maintenance in order to meet your basic needs and reestablish yourself in the wake of a divorce, do not count on the court to automatically know this Consult with an attorney and make sure the court is made aware of your need from the very start.
The appropriate amount of child support that is ordered when a child is four isn’t necessarily going to be appropriate when that same child is fourteen. Your life and the lives of your children are going to continue on well after child support has been determined and the amount that you were receiving or paying then may not be what you should be receiving or paying now. Child support is meant to change as your children grow and your living arrangements adjust. Perhaps you’re making less than you were when the order was made? Maybe the terms of parenting time have changed and you’re with your children substantially more than you were before? Substantial and continuing life changes CAN be a basis on which to modify your support obligations If it’s been some time since your child support went into effect, you could very well be paying too much or receiving too little.
It’s no secret that emotions run high in family law cases, but the way that you behave and conduct yourself matters. The reasonability of the parties during a family law proceeding is something that judges can and do consider when making decisions concerning parenting time, legal decision making, and even attorneys fees. That angry email or voicemail could very well come back to haunt you if you let emotions get the best of you.
Though it may seem impossible at times, it is important to treat the opposing party and the court with the utmost courtesy and respect, even if the other side is behaving poorly. Working with an attorney who understands this and is aware of the importance of courtesy and proper behavior may have a greater impact on your case than you’re likely to believe.
Domestic violence is never acceptable. The Court and factor into many of the determinations that a judge will have to make during a family law case weight incidents of abuse heavily. If domestic violence has occurred between the parties, you should seek out an attorney immediately to discuss the effects it will have on your case, or, at the very least, make sure the court is put on notice of the incident Never assume the court will automatically know what is going on If domestic violence or abuse has occurred, make it known.
Divorce in Arizona will result in a complete allocation of community assets and debts between the parties, but that doesn’t necessarily mean everything is over. Dividing up the marital property can result in significant tax consequences that may not even be considered until long after a divorce is finalized. Speaking with a competent financial advisor or a knowledgeable attorney before your divorce is finalized may better help you to better identify and plan for these issues before they become surprises.
While certain legal procedures must be followed and certain paperwork is necessary, parties to a divorce action in Arizona can and often do manage to resolve their case without ever setting foot inside of a courtroom.
If you and your spouse are in agreement with how your assets and debts should be divided and how legal decision making and parenting time should be structured, your divorce can be as simple as filing several sets of required documents and waiting for the judge’s signature. This is often times the easiest and least expensive way of handling a divorce, and a full settlement will more often than not keep you from having to go to court. Traditional litigation is NOT the only option.
There are a number of programs, self-help forms and options available to you through the Maricopa County Superior Court. From parenting coordinators to assistance for domestic violence, the Court provides a variety of resources that you can access to help you through your family law matter. Though the programs and resources available are too numerous to list here, the following link is a good place to begin: MARICOPA COUNTY SELF-HELP CENTER