Arizona has adopted a “no fault” policy regarding divorce. This means that no party needs to find the other at fault for causing the parties to separate. The only real requirement is that one of the parties wants a divorce. The general premise is the parties either come to an agreement about the terms of the divorce, or the parties receive a dissolution of marriage after a trial. The only grounds needed are the marriage is “Irretrievably Broken” or “Irreconcilable Differences.”
Sometimes the parties can come together and mutually determine the terms of the dissolution. When this happens, a court calls it an “Uncontested Divorce” since there won’t be a need for a trial or any terms that are contested that need to be decided. However, a “Contested Divorce” is one in which there are terms that the court will need to hear about and make a decision. In these cases, the parties file a “Petition for Dissolution” and a “Response” with each stating his or her own side of how that party believes the divorce should be settled. If no settlement can be made, then the petition for dissolution will be set for trial and the parties can be heard in front of a judge who will make the final determination.
In all contested divorces, a Petition for Dissolution is the first step to filing for divorce. Along with the petition for dissolution, there are several other documents which must be filed to protect the interests of the filing party. These documents include; a “Preliminary Injunction” which is an injunction stopping either party from selling or destroying any marital or community assets; “Temporary Orders” which sets such things as who pays which bills and who gets to live in the house, where the children will reside; temporary orders may include child custody which helps preserve the livelihood of the children. Courts will look into the “best interest of the child” to determine the best course of action for things such as visitation and child support. This also prevents one parent from “kidnapping” their own children.
The issuing party who files for divorce (the “Petitioner”) must serve upon the other party (the “Respondent”) a copy of the Petition for Dissolution through “Service of Process” which is typically a private process server who delivers a copy of these documents to the Respondent. Once served, it’s best for the Respondent to contact a lawyer immediately to preserve his or her rights, especially in cases where property division or child custody needs to be resolved.
The Respondent must file an answer with the court. If no answer is filed, the Petitioner can obtain a “Default Judgment”. A default judgment is given by the court to the Petitioner stating that the requests made by the Petitioner in the petition for dissolution may be granted. The Respondent may lose his or her rights if no action is taken to respond to the petition for dissolution. Once the required time limits have passed and no response is filed, the court may issue a “Final Judgment” by granting a “Decree of Dissolution.” The Petitioner will attend a “Default Hearing” where the judge may enter an order of default. The Respondent may still have an opportunity to be heard by filing a motion to set aside the default, but he or she must act quickly. If you have been served by your spouse and have not filed a response, please contact us as soon as possible so we can help you through this difficult time.
If an answer or response is filed, then the parties may be asked to try settling the case on their own before a trial is held. If no settlement can be reached, then a trial date will be set and the case moves forward through the “Discovery” process, then to an actual trial in a courtroom.
In a legal Separation, the Petitioner must file a petition for legal separation and serve it upon his or her spouse much the same as a dissolution of marriage. The spouse must file a response or answer to the petition. The same holds true if no response is filed meaning a default judgment could be ordered and eventually a final judgment ordering a decree of legal separation. A decree of legal separation may contain terms for child support, spousal support, visitation rights, and other terms just like a decree of dissolution of marriage. If a response is filed, then the case could go to trial if no agreements can be made to settle all issues of the legal separation, or the case could be transferred to a divorce case.
Let’s assume a petition for dissolution was filed and served. The Respondent has filed a response and the court will be looking to set a trial date if no settlement can be made. At this point, the Discovery Process begins. Discovery is a legal term meaning each party will be required to “turn over” any evidence, witness list, supporting documents, and disclosure of any facts or grounds for any claims or defenses that may be used or produced at trial. Each party gets to examine the other side’s disclosed material. In addition, each side can send over a list of written questions called “Interrogatories.” These interrogatories are a list of questions that you might want to ask the other party before trial begins. The courts need to move cases along and by disclosing all evidence and providing interrogatories, this helps keep the case going. Many times the discovery procedure leads to clearing up some or all of the issues between the parties and helps facilitate a settlement agreement and avoid trial.
Often times, child custody can be difficult especially in a contentious divorce. Parents have strong feelings about how and where their child should live and parented. An attorney can help you negotiate the best possible settlement for your child’s best interest. If no settlement can be reached, then an attorney can help you preserve your rights as a parent. Arizona laws regarding child custody rights state that each parent should be afforded equal rights. Do not let your rights be overlooked, call us now to protect your parental rights.
Once the court becomes involved in the custody of your child(ren), it will award permanent child custody orders known as “Permanent Orders.” The court will review many factors before coming to a decision on Permanent Orders. These factors include all of the following:
Before any permanent orders can be written, the court will first determine or decide all the other issues such as property division and spousal maintenance. In many cases, one party may submit a “Joint Custody” plan which is an agreement made between the parties which typically settles the custody based on the best interests of the child. Along with joint custody comes a “Joint Parenting Plan” which may settle such things as visitation schedules. The court will determine feasibility of the plan by looking at the distance between the parents, work schedules, and visitation schedules. The court may order joint custody even over the objections of one parent if the court feels it is in the best interest of the child. The court may hear from expert witnesses and may have a mental health expert interview the child and provide an expert opinion, the court may interview the child and any other witnesses it deems necessary in order to make its ruling on child custody.
Child support is primarily based on numbers such as wages or income, and not necessarily who was the better parent. The court will look at numerous factors in determining child support. These factors include all of the following:
The Arizona Supreme Court has set guidelines for determining child support. These guidelines are based on mathematical formulas including the income of both parties, health insurance needs, other child support obligations, and amount of time spent with each parent. The court will take into consideration many additional facts, but mostly income determines the amount of support awarded. Income may come from many sources such as wages, bonuses, commissions, stock options, retirement accounts, ability to work, and others. If self-employment is a factor, then additional discovery may be needed to make a proper determination. Child support orders can be modified if any of these factors change over time. Child support issues can be very contentious. It is not uncommon for the court to appoint an attorney specifically to represent the child’s best interest called a “Guardian Ad Litem.” This attorney will review the requests of the parties and form an opinion to the court as to what the attorney believes are the child’s best interests. Many times the Guardian Ad Litem helps the parties come to a settlement, which puts the child’s best interests and the court’s general wishes in the final determination.
There are many factors that go into an award for Spousal Maintenance or “Alimony.” The court uses these factors to establish whether one spouse should receive money to keep the standard of living he or she had during the marriage. These factors include some of the following, but more factors could be used:
Arizona is a community property state. This means that any property brought into the marriage or bought or acquired during the marriage becomes community property unless it is deemed sole and separate property. Sole and separate property is property one spouse received or acquired prior to the marriage or property received during the marriage from which the property was given to the party through gift or inheritance. Since there is no “fault” in a divorce case, it does not matter whether only one spouse was working during the marriage or the marriage was broken because of issues of misconduct by one spouse. Property will generally be divided equally unless specifically ordered other wise by the court.
If no settlement can be reached, then the case will be set for trial. Most trials last anywhere from two to four days, but may be longer for more complex cases. Each party has a chance to present his or her case and cross-examine any witnesses. Evidence is presented and admitted to the judge. Trials are decided on a “Preponderance of the Evidence” which means that the party presenting the evidence has a burden of proof that their evidence is more likely than not to be true. Opposing attorneys have the right to object to evidence being presented by the other side. At the end of the trial, closing arguments will be made and the judge will then take the case under advisement. The judge then has time to make a written ruling which takes a week or two, but may be longer for more complex cases.
Once the judge has made a ruling, the court will issue a “Decree of Dissolution.” This decree is the final ruling or determination on child custody, spousal maintenance, property division and any other issues presented in the case. The marriage is effectively terminated and the parties are restored back to their original status before marriage. A wife may request to have her maiden name back, the judge may order certain assets be sold and distributed evenly between the parties, and decide any other requests made by the parties.
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