We know you have questions. We have your answers.
*These responses cover most but not every scenario. If you have additional questions or want to discuss your individual case, feel free to contact Curry, Pearson & Wooten P.L.C. We are here to help you.
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Are there residency requirements to file a family law case in Arizona?
One of the spouses must have lived in the state at least ninety days before filing for dissolution of marriage. The divorce is properly filed in the county in which the petitioner resides at the time of filing. There is also a sixty-day waiting period after the service of process on the Respondent or after the Respondent's acceptance of service. If the case involves custody matters that need to be decided by the court, the children must be residents of Arizona for at least 6 months before the court has jurisdiction to decide custody matters.
What are the legal grounds for dissolving a marriage?
Arizona is a no-fault state. One of the parties must simply allege an “irretrievable breakdown” of the marriage and desire to live separate and apart.
What are the grounds for a legal separation?
The requirements are similar to divorce. One of the parties must simply allege an “irretrievable breakdown” of the marriage or a desire to live separate and apart and must live in the state of Arizona when the action for legal separation is filed. No residency time limit is required. If one spouse objects to a legal separation, the case will be amended to be an action for dissolution of the marriage.
Does Arizona have any special or simplified procedures?
Acceptance and waiver of service of the Petition is allowed. Arizona law expressly encourages agreements that set forth property disposition, custody and support matters. If the parties can agree on all matters, those agreements can be submitted to the court without ever having to appear at court.
Are there any special counseling requirements?
Prior to dissolution: either spouse may ask the court to order mediation for the purpose of a reconciliation to save the marriage or to obtain an amicable settlement and avoid further litigation. After dissolution of marriage has been filed: either spouse may request that the dissolution of marriage proceedings be transferred to the Conciliation Court for mediation. In addition, if one spouse denies that the marriage is irretrievably broken, the court may delay the case for up to 60 days and order the spouses to attend a conciliation conference.
How does the Court distribute property?
Sole and separate property is retained by the owner of the property. Sole and separate property is property obtained prior to the marriage or property that is either a gift or inherited. As to marital property, Arizona is a "community property" state. Any property acquired by either spouse outside of Arizona shall be deemed to be community property if the property would have been community property if acquired within Arizona. Community or marital property (property acquired during the marriage) is divided and awarded equitably. Marital misconduct is not considered in the division. The court may consider excessive or abnormal expenditures of community property; and any destruction, concealment, or fraudulent disposition of community property in making the division. In addition, the court may place a lien upon a spouse's separate property in order to secure payment of child support or spousal support.
How does the Court handle support (alimony) or maintenance?
The court can award spousal maintenance to either spouse, if the spouse seeking maintenance: lacks sufficient property to provide for his or her reasonable needs; or is unable to support him or herself through appropriate employment; or is the custodian of a child whose age and condition is such that the custodian should not be required to seek employment outside the home; or lacks earning ability in the labor market to adequately support him or herself; or contributed to the educational opportunities of the other spouse; or had a marriage of long duration and is of an age which may preclude the possibility of gaining employment adequate to support him or herself.
Marital misconduct is not a factor to be considered for maintenance order. The factors to be considered are:
1. time for the spouse to acquire education and training for suitable employment;
2. spouse's future earning capacity;
3. spouse's standard of living during the marriage;
4. duration of the marriage;
5. ability of the spouse providing maintenance to meet his or her needs while providing the maintenance to the other;
6. financial resources of the spouse seeking maintenance (including marital property awarded and the spouse's ability to meet his or her needs independently);
7. destruction, concealment, fraudulent disposition, or excessive expenditures of jointly-held property;
8. comparative financial resources of the spouses including their comparative earning capacities;
9. age of the spouses;
10. physical and emotional condition of the spouses;
11. usual occupations of the spouses during the marriage; and
12. vocational skills of the spouse seeking maintenance.
How is child custody handled?
In awarding custody, the court considers the best interests of the child and the following factors:
1. preference of the child (this is usually only considered for an older child);
2. desire and ability of each parent to allow an open, loving, and frequent relationship between the child and the other parent;
3. wishes of the parents;
4. child's adjustment to his or her home, school, and community;
5. mental and physical health of the child and the parents;
6. relationship between the child and the parents and any siblings;
7. evidence of significant spouse or child abuse;
8. coercion or duress in obtaining a custody agreement;
9. which parent(s) have provided primary care of the child; and
10. any evidence of or conviction for drug abuse.
No preference is supposed to be given on the basis of the parent's sex. “Joint legal custody” means that both parents have a say in important matters involving the child such as education, healthcare and religion. Joint legal custody does not necessarily mean equal parenting time. Sole custody means that only one parent has decision making power when it comes to important matters such as education, healthcare and religion. Typically, the courts favor joint legal custody and it is usually the burden of the parent seeking sole custody to persuade the court that sole custody is appropriate. Grandparents and great-grandparents may also be awarded visitation rights.
How is child support handled?
Either parent may be ordered to pay child support, without regard to marital misconduct, based on the following factors:
1. financial resources and needs of the child;
2. standard of living the child would have enjoyed had the marriage not dissolved;
3. physical, emotional, and educational needs of the child;
4. financial resources and needs of each parent;
5. destruction, concealment, fraudulent disposition, or excessive expenditure of jointly-held property; and
6. duration of parenting time and any related expenses;
7. medical insurance needs of the child.
Awards of child support are to be paid through the court unless the spouses agree otherwise. In addition, there are specific guidelines in calculating child support payments. The amount of support established by using the official guidelines will be the required amount of child support, unless the court finds such an amount would be inappropriate or unjust. Every child support order must assign one or both of the parents responsibility for providing medical insurance coverage for the child and for payment of any medical expenses not covered by insurance. Unless there is contrary evidence presented in court, the court will assume that the non-custodial parent is capable of full-time work at the Federal minimum wage (unless the parent is under 18 years of age and attending high-school).
Are premarital agreements enforceable?
The agreement must be in writing and signed by both parties and is typically enforceable. The agreement will not be enforceable if the party can prove either that he or she did not execute the agreement voluntarily, the agreement was unconscionable when executed, and before execution of the agreement the spouse was not provided a fair and reasonable disclosure of the property or financial obligations of the other spouse, did not voluntarily waive any right to the disclosure of this information, and did not have adequate knowledge of these obligations. If a provision of the agreement modifies or terminates spousal support which causes that spouse to be eligible for public assistance, the court may order the other spouse to pay support.