Divorce

In Arizona, we untie the marriage knot by filing for a marital dissolution (commonly known as a divorce). The process takes at least 60 days from when the other party is properly served with the legal paperwork. The 60 day wait is necessary even if you and your spouse agree on all the terms.


If the you and your spouse are not in agreement on how to divide up the assets, debts, or the payment of spousal maintenance, then it is “contested” and will take longer. If children are involved and the parties do not agree on all of the above and the child related issues like the parenting plan, legal decision making and child support, the process may take several more months.


Contested family law matters may take months to resolve due to the many hearings involved and the busy family court calendar.  The court will often insist the two of you participate in some form of alternative dispute resolution (ADR) in an attempt to find a less adversarial solution in which you both have input on the end result. If the case cannot be resolved through mediation or some other form of ADR, it will be set for a trial. If it goes to trial, after hearing testimony and reviewing exhibits, the Judge will make all the decisions. The end result may be very different than what you hoped for and expected.


It is important to speak with an attorney to make sure you understand what the real legal issues are in your case and what outcomes are most likely for your unique situation. This is especially true if you have children, significant assets like high income, real property, 401(K)’s and retirement accounts, credit card and other debts or if one of you received an inheritance during the marriage.

Legal Decision Making

When you have a family law matter in Arizona, the term “child custody” has been replaced by “legal decision making” and concerns the decision making process for the child's education, religious upbringing, health care and personal care.  There are three types of legal decision making: Joint, Joint with Final Decision Making Authority in the Event of a Dispute or Sole Legal Decision Making.


Joint legal decision making means both parents have an equal say in decision related to their child’s education, religious training, medical care and personal care. The courts usually award the parents joint legal decision making unless there is a history of significant domestic violence, and/or substance abuse issues. If the parties are unable to reach an agreement, they will often be required to mediate the dispute prior to seeking assistance from the court.


Joint legal decision making with one parenting having final decision making authority occurs most frequently when there are communication issues, a history of domestic violence or substance abuse concerns. The parents are expected to discuss the child related issue and try reach agreements however, if they cannot, one parent has the authority to make the final decision. 


Sole legal decision making means that one parent has the ability and authority to make decisions involving those same four areas (education, religion, medical and personal care). This creates a power imbalance between the parents, however, when there is high conflict between the parents, domestic violence or some other serious issue, joint legal decision making would be nearly impossible.


Real life success story:  Attorney Jane Schmaltz successfully argued for her client to be awarded sole legal decision making. The other parent was not actively involved in the minor’s life and had only sporadic parenting time. When the client attempted to consult with the other parent about important decisions, the client would be subjected to repeated harassing calls, texts, and emails.

Parenting Time/Visitation

For parents, the term “visitation” has been replaced with the term “parenting time."  Parenting time is the child's schedule with each parent per week, month, and year, including school breaks and holidays. There are many different parenting time schedules as each family is unique. The court will consider each parent’s work schedules, the children’s school and activities schedule. Sometimes the location of each parent’s home can impact the parenting time schedule if distance or transportation is an issue.


The primary consideration for the court and parties will be to create a parenting time schedule that is in the best interest of the child and provides significant, meaningful and continuing contact between parents and child, if appropriate and feasible.One of the more common schedules is known as a 5-2-2-5 plan. Each parent will have the child for 5 consecutive days and then alternate for 2 and repeat. This allows the child to spend significant quality time with each parent without going back and forth between homes too often.

The parenting time schedule directly impacts the calculation of child support and the amount paid. If the child is spending significant time with each parent, the calculator presumes each parent is paying their share of the ongoing care and needs of the child.  Since each parent is providing shelter, food, clothing, etc., while the child is in their care, child support costs would be less.  If, however, one parent has the child most of the time and is primarily responsible for the costs associates with raising a child, the less active parent would pay more in child support to assist with those ongoing child rearing costs.

Spousal & Child Support

Spousal support is a court ordered monthly payment from one spouse to the other. In Arizona, A.R.S. §25-319 gives us a two-part test to see if a spouse qualifies for spousal support and what the amount will be if ordered.

In part 1, (25-319(A)), there are four reasons the court may order spousal support.

  1. If one spouse lacks sufficient property to provide for his or her reasonable needs.
  2. If one spouse is unable to be self-sufficient through appropriate employment

    OR is the custodian of a young child or child with such special needs that the spouse should not be required to be employed outside the home,

    OR the spouse lacks the earning ability in today’s job market to be self-sufficient.
  3. If one spouse contributed to the educational opportunities of the other spouse.
  4. If the parties were married for a long duration AND the spouse is of an age that may make it difficult to find adequate employment for self-sufficiency.

If any of the 4 factors apply to a spouse, we then look at part 2 of the test to help determine the spousal maintenance amount. Part 2 (25-219(B)) allows the court to order an amount and duration (months or years) as the court deems just, without regard to marital misconduct, and after considering all relevant factors, including:

  1. The standard of living established during the marriage.
  2. The duration of the marriage.
  3. The age, employment history, earning ability and physical and emotional condition of the spouse seeking maintenance.
  4. The ability of the spouse from whom maintenance is sought to meet that spouse's needs while meeting those of the spouse seeking maintenance.
  5. The comparative financial resources of the spouses, including their comparative earning abilities in the labor market.
  6. The contribution of the spouse seeking maintenance to the earning ability of the other spouse.
  7. The extent to which the spouse seeking maintenance has reduced that spouse's income or career opportunities for the benefit of the other spouse.
  8. The ability of both parties after the dissolution to contribute to the future educational costs of their mutual children.
  9. The financial resources of the party seeking maintenance, including marital property apportioned to that spouse, and that spouse's ability to meet that spouse's own needs independently.
  10. 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.
  11. Excessive or abnormal expenditures, destruction, concealment or fraudulent disposition of community, joint tenancy and other property held in common.
  12. 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.
  13. All actual damages and judgments from conduct that results in criminal conviction of either spouse in which the other spouse or child was the victim.

If you or your spouse is likely to seek spousal maintenance, please meet with me. The amount of spousal maintenance per month and the duration are up to the Judge.  At trial you must be prepared to present strong evidence showing you meet the above factors or why your spouse does not meet the factors.

Modification & Enforcement

If the court has already entered orders for legal decision making and parenting time and you believe those orders should be changed, you can request they be modified. The one catch is that one year must have passed since the making of the order unless the child’s current environment is a serious threat of harm or danger to the child whether it be physical, moral, mental or emotional.  For example, one of the parents has an addiction issue, the new spouse or boyfriend (or girlfriend) is harming the child or parent or criminal activity is taking place in the child’s home. If one of the parents is charged with a dangerous crime against children or commits an act of domestic violence against a minor, the parent may request an expedited hearing. 

What do I need to do to modify an existing parenting time or legal decision making order?

The answer depends on the circumstances and reason for the change. Assuming a year has passed or some other qualifying event has occurred, a verified petition explaining why the change is necessary and in the best interest of the child(ren) will need to be filed. The other parent must receive notice of the filing and requested change. They may file a response to let the court know their side of the story and reason why the orders should not be changed. The court may grant the hearing if the reason for the change is sufficient. Be aware, the court may order the filing parent to pay the other parent’s attorney fees and costs if the court believes the modification request was vexatious and harassing.

LGBT

Recent changes: On October 17, 2014, federal judge, Hon. John W. Sedwick, ruled that Arizona’s anti-marriage amendment as well as other marriage definitions in Arizona, are unconstitutional. The pivotal case was Connolly v. Jeanes which challenged Article 30, section 1, of the Arizona Constitution which states only a marriage between one man and one woman is recognized; and A.R.S. §25-201(C) which prohibited same sex marriage in Arizona; and A.R.S. §25-125(A) which defines marriage as between a male and female. While the case was pending in Arizona courts, the Court of Appeals for the 9th Circuit ruled that substantially similar definitions and provisions of Nevada and Idaho law were invalid because they denied same sex couples equal protection under the law, which is a guaranteed by the Constitution of the United States. Since Arizona is part of the 9th Circuit, it must follow that ruling as precedent.

What does that mean to you?

It means that couples of the same sex can now marry, divorce and have all the same benefits under Arizona law.

Pet Custody

For many of us, our pets are members of the family and we don’t view them as mere property like a toaster or chair. When couples break up, it’s not uncommon for fights to occur over who will get the pet(s). Sometimes the new living arrangement will help dictate the outcome. If one party must move to an apartment or in with other friends or family while the other partner keeps the house with the yard, it may make sense for the pet to remain in the house.  Sometimes couples can create a “share the dog/cat” schedule, not unlike a parenting time schedule as we do with children.


If couples cannot agree, ownership of the pet may become an issue to be decided by a judge. In family court, we often use the “best interest of the child” factors when we establish parenting time with the parents and child(ren).  Most Courts don’t consider the best interest of the pet when deciding who will get the pet.  Whether we like it or not, pets are property, like a toaster. Therefore, it’s better for the couple to make their own decisions and agreement regarding their pets and not leave it up to the Judge.


If the pet custody issue does go before the Court, it is important to look at the relevant “ownership” evidence, including: who purchased the pet, was it a gift from one to the other, who has the strongest bond with the animal and visa vie?  Which person was primarily responsible for the feeding, walking, grooming, vet checks etc.?  Is the pet registered or are there adoption records?


If you have an ownership dispute involving your pet, please feel free to contact me to discuss possible legal strategies and review prior cases and their outcomes.