Family Law FAQS

How Long Do I have To Live In The State Before I can File For a Divorce?

You must be a resident of the State for ninety days (90) before filing for a divorce. It is recommended that you obtain a driver’s license, open a bank account, and have some financial or residential connection in the state prior to filing for divorce. This is called a residency requirement. However, in cases where a spouse remained behind in another state with children, you cannot force a change of the jurisdiction to Arizona if the spouse and the children never resided here. If the spouse and children resided in Arizona but have left the state, you may wish to file for the divorce in Arizona before they establish residency in another state.

Should I file for a Divorce Or a Separation?

A divorce must be obtained in order to completely sever the relationship between the other person in order to marry another party. A separation is an order from the Court confirming that the parties are living separate and apart and the same issues considered in a divorce–custody, support, debt, and property–can be resolved. However, the marital relationship is not legally severed and you may have more problems with creditors of the other party than if you were legally divorced. Later if you wish to pursue a divorce another proceeding will have to be filed and the mandatory waiting time will apply. A second action would increase costs and fees. In most cases, it is recommended that a divorce action be filed.

Is There a Mandatory Waiting Period in Order to Be Divorced?

Yes, the mandatory waiting period is 65 days. Once the divorce petition and the supporting documents (preliminary injunction, summons, notice to creditors, notice to conciliation court, notice re: rights to insurance, family court cover sheet, child support information form) are filed, the documents are served on the other party. Service may be accomplished by a private process server or by the other party accepting the service of the documents. Sixty five 65) days after service, the agreement reached by the husband and wife can be signed. This is a decree by the “consent” of the parties and the document is called a “Consent Decree”. Attached to the Consent Decree may be a Property’s Settlement Agreement, Child Custody or Parenting Agreement, Child Support Agreement, and Wage Assignment. The Consent Decree is submitted to the court and a Judge will review the agreement and typically sign the Decree as an official Court Order thirty days after it is submitted. Thus, in cases where the parties can reach an agreement on all issues in a case, then a Court Order granting the divorce may be entered 90 days from the date the action is filed.

My Spouse Left the State or I Do Not Know Where My Spouse is–What Do I Do?

There must be service of the Petition and Supporting Documents on the other party. Service on an absent spouse is sometimes accomplished by publishing notice in a paper for the mandatory periods of time. If a spouse has moved out of state, sometimes certified mail will be sufficient to service the other party. In certain circumstances an out of state process server can be hired to serve the documents.

What Has To Be Determined In a Divorce?

The issues in a divorce will include custody, parenting time, child support, wage assignment, spousal maintenance, the division of property, and the allocation of debt. There are important questions and considerations that must be given to each one of these issues or items involved in a divorce. It is highly recommended that anyone facing the difficult decision of a divorce consult with an experienced divorce lawyer.

What If We Can’t Agree on the Issues?

There will be a trial on the issues that cannot be agreed upon by the parties. In some cases, no agreements are reached and all issues are presented to the Judge who will then make a decision based upon the evidence presented at the time of the trial by way of testimony and documents that are admitted into evidence. In other cases, some issues are agreed to and a partial agreement or stipulation can be submitted to the Court in order to narrow the issues for trail. However, a divorce will not be granted and the Decree will not be signed by the Judge until all issues are resolved between the parties. Arizona does not bifurcate property issues from a decree of dissolution.

How Is Evidence Presented At Trial?

A judge can only decide the disputed issues based upon evidence that is correctly presented in the hearing or trial. There are Rules of Evidence that apply to the information offered by a party. Evidence can be oral or documentary. evidence must be relevant and in compliance with the Rules of Evidence and Procedure. There are time constraints for the exchange of evidence throughout the case that must be complied with or the information my be excluded by the Judge. This is one of the reasons why it is highly recommended that in any case where there is disagreement or dispute about issues that must be resolved that an experienced divorced lawyer be retained.

What Determines “Alimony” or Spousal Maintenance?

The Court May Grant alimony or spousal maintenance for either spouse for any of the following reasons if it finds that the spouse seeking maintenance:

• Lacks sufficient property, including property apportioned to the spouse, to provide for that spouses’ reasonable needs.
• Is unable to be self-sufficient through appropriate employment or is the custodian of a child whose age or condition is such that the custodian should not be required to seek employment outside the home or lacks earning ability in the labor market adequate to be self-sufficient.
• Contributed to the educational opportunities of the other spouse.
• Had a marriage of long duration and is of an age that may preclude the possibility of gaining employment adequate to be self-sufficient.

If Either Party Qualifies For Spousal Maintenance, How Much Will Be Paid and For How Long of a Period of Time?

Once a party qualifies for spousal maintenance, then the Court will determine how much will be paid and for what period of time by looking to many factors including:

• The standard of living established during the marriage.
• The duration of the marriage.
• The age, employment history, earning ability and physical and emotional condition of the spouse seeking maintenance.
• The ability of the spouse from whom maintenance is sought to meet that spouse’s needs while meeting those of the spouse seeking maintenance.
• The comparative financial resources of the spouses, including their comparative earning abilities in the labor market.
• The contribution of the spouse seeking maintenance to the earning ability of the other spouse.
• The extent to which the spouse seeking maintenance has reduced that spouses’ income or career opportunities for the benefit of the other spouse.
• The ability of both parties after the dissolution to contribute to the future educational costs of their mutual children.
• The financial resources of the party seeking maintenance, including marital property apportioned to that spouse, and that spouses’ ability to meet that spouses’ own needs independently.
• The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment and whether such education or training is readily available.
• Excessive or abnormal expenditures, destruction, concealment or fraudulent disposition of community, joint tenancy and other property held in common.

The cost for the spouse who is seeking maintenance to obtain health insurance and the reduction in the cost of health insurance for the spouse from whom maintenance is sought if the spouse from whom maintenance is sought is able to convert family health insurance to employee health insurance after the marriage is dissolved.

How is Child Support Calculated?

A very important issue in all cases involving children is the custody of the children and the parenting time schedule that is appropriate. Once custody and parenting time is established, then child support is calculable. Child support is largely interrelated with the following factors:

• The financial resources and needs of the child.
• The financial resources and needs of the custodial parent.
• The standard of living the child would have enjoyed had the marriage not been dissolved.
• The physical and emotional condition of the child, and the child’s educational needs.
• The financial resources and needs of the non custodial parent.
• Excessive or abnormal expenditures, destruction, concealment or fraudulent disposition of community, joint tenancy and other property held in common.
• The duration of parenting time and related expenses.

An experienced divorce lawyer can calculate a child support amount based upon these criteria to provide you with an estimate of the amount of child support payable or receivable.

How Long is Child Support Paid?

Typically child support is payable until age 18 years; however, if the child is attending high school or a certified high school equivalency program, support shall continue until the child graduates but in no event be later than 19 years of age.

However, if the child is mentally or physically disabled, the court may order support to continue past the age of 18 years or if at the time of the filing of the petition for dissolution or separation the child is over the age of 18 years, the court may order that the payment commence.

I Owned Property Prior to the Marriage or Inherited Property–Do I Get to Keep it?

Property that is determined to be “separate property” is not divided. Evaporate property is property owned by the spouse prior to the marriage or received by an inheritance. the exception is commingling or if title documents to assess were changed to include the other party. Sometimes community property liens are created when one party improved or enhanced the value of the separate property of the other party.

What Happens To Stock Options And Retirement Assets?

A highly litigated area involves the division of stock options and retirement assets. Whether options are vested or non vested will affect the division of the asset and the reason for the grant may be important. A community property component is calculable and 50% of the community property component will be awarded to the non participant spouse or alternate payee. The division of the options is typically accomplished with a special court order signed by the Judge after the Decree of Dissolution is signed. the division of retirement accounts is also calculated and those benefits are typically divided by a special order called a Qualified Domestic Relations Order or (QDRO).

What is “Community Property”?

Property purchased during the marriage with income earned by either party during the marriage is community property. Generally, community property is divided equally between the parties. However, if one of the parties wasted or dissipated assets on items that are not for the benefit of the community–such as gambling, sexual encounters or prostitution, or drugs then those expenses may be reimbursed to the spouse who was injured by the loss of the monies used for those purchases. Documentation may be very important in proving dissipation or waste.

How is Debt Divided?

Similar to property considerations, debt is classified based upon when it occurred–did it occur prior to the marriage or during the marriage. Generally, debt incurred by a party prior to the marriage remains the sole and separate obligation of that party. Debt incurred during the marriage–by either party–is typically allocated by the court equally between the parties. As in all considerations, the individual circumstances are important in the case. Allocations may be different based upon whether the debt is personal or a business debt or whether the debt is for an illicit purpose.