FAMILY LAW FAQs
Divorce and Alimony FAQs
How will I have the money to pay an attorney if my spouse controls the finances?
In any Petition for dissolution filed in Arizona, there will be a document entitled “Preliminary Injunction.” This binds your spouse, as well as you, from hiding assets, selling assets, or taking children out of state without permission from the other party. If a spouse does any of the forbidden things listed, they will be in contempt of court and ordered to rectify the situation. In a Motion for temporary orders, we can also direct the other party to give you money for your legal representation out of marital funds.
Should I tell my spouse I am going to file for divorce before I do it?
It depends on the situation, but it is generally bad advice to do so. The problem is that your spouse could use the warning you give to move assets around so it becomes more difficult to hire a lawyer to represent you. However, in cases where the relationship is still friendly and you believe you will be able to achieve an uncontested divorce, this may not become an issue. Bottom line: be careful. Many people think their spouse would never do anything like that and then it happens. Tread lightly.
I’ve heard Arizona is a “community property” state. What is that?
In a Community property state, the legal presumption is that all marital assets will be split 50-50. This is distinct from all other states where the court is to divide marital assets “equitably” (possibly 50-50, but not necessarily).
This includes all marital property such as real estate, financial investments like retirement accounts, and personal property like cars and furniture.
Marital property is property acquired during the marriage. Property owned by one of the spouses prior to the marriage is separate property that does not need to be split with the other spouse. But you must be careful with this. If you owned a piece of property that increased in value during the marriage and due to any effort on either spouse’s part, the increase in value is marital property subject to division.
What is spousal maintenance (alimony), and do I qualify for it?
Alimony (or spousal maintenance in Arizona) is money one spouse owes to the other spouse during and after the divorce, usually for a limited period of time. Note that spousal maintenance is not money owed to children of the marriage – that is child support. The purpose of alimony is to help a spouse who is unable to maintain the same standard of living as the other spouse due to their circumstances.
Spousal maintenance is one of the most difficult areas of divorce law to predict the outcome of. You must prove to the court that you either do not have sufficient property to live on, or that the marriage was of long duration and you have limited work skills, or that you have young children at home and cannot work because of that. There are other factors as well, but these get you into the door.
We can go over these factors in greater detail with regard to your specific situation during a free initial consultation. Spousal maintenance awards are very fact-specific inquiries that are difficult to predict.
Can I get a divorce if I don’t know where my spouse lives?
Yes you can. We make every effort to find your spouse, including using a skip racing service. If we can locate them, we have them served and the process server’s affidavit is used to prove to the court that he or she has notice of the proceeding. If after making the efforts necessary to satisfy the court, we still cannot locate them, we will serve by publication and then apply to the court for a divorce decree by default.
Are there alternatives to traditional divorce proceedings?
Happily yes. If you are concerned about traditional litigation harming what’s left of your relationship with your spouse, or concerned about privacy, uncertainty, or costs, a mediated divorce or collaborative divorce might be for you.
In a mediated divorce, you and your spouse would both be represented by attorneys, but you would submit your dispute to a mediator instead of a judge. The goal is to facilitate an agreement between the parties rather than impose a ruling in the case. The attorneys guide and advise their clients through the process and then reduce the parties’ agreements into a parenting plan that is submitted to the court. If mediation breaks down, the parties may then elect to litigate any remaining issues that cannot be agreed upon.
A collaborative divorce is similar to a mediated divorce except for one important factor. Both attorneys sign agreements to terminate representation of their clients if the parties are unable to agree. This incentivizes the parties to resolve their dispute outside of the courtroom, and removes the constant threat of going to court from the negotiations. Additionally, in collaborative divorce, the parties will often utilize experts such as child psychologists and financial planners as part of a divorce team that help the couple have all the facts in front of them to make a decision.
I offer services in both of these areas and they will be fully discussed in any consultation.
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Child Custody and Child Support FAQs
Can I get full custody of my children?
“Custody” is one of the most misunderstood terms in the law. In Arizona, custody is two-pronged. The first prong is “legal decision-making” or the ability to make unilateral decisions for your children without requiring any input from the other parent. The default position for all cases is joint decision-making. In other words, unless you can prove to the court why you should make all of the decisions for the children, you will be awarded joint legal decision making automatically. It is difficult to overcome this presumption unless the other parent has proven by their behavior that it would not be in the children’s best interests for them to have that role.
The other prong is parenting time. Again, the law favors equal parenting time. If you are seeking something other than equal parenting time, it is up to you to prove to the court why you should have more time at the expense of the other spouse. This analysis is very fact-intensive. We can review the factors that go into making a legal decision on parenting time during a free initial consultation.
Can my teenage child choose which parent to live with?
While it’s true that the court will take the preference of a child into account when making a custody decision, there is no magical age where the child gets to make the choice for themselves. The courts will, however, weigh the choice of an older child more seriously than a younger child. The wishes of a child are simply one factor among many in making a custody determination.
Will my spouse or ex spouse’s questionable behavior help my custody case?
If I had a dollar for every client who described their ex as a “psycho” I would be a rich man. Trouble for them is that most of the behavior they describe has little or nothing to do with a custody determination. The legal standard is the best interest of the children. If the behavior does not affect the children directly, or the parent’s ability to parent, it is legally irrelevant. Behavior that does affect the children, like alienation of the other parent, or exposing the children to adult situations or conversations, it can have an impact. But claiming that your ex is “obsessed with your new relationship” is not going to count for much. Myth #3: If I get an order of protection against my ex, then my ex will lose their parenting time automatically.
Can I use an order of protection to take my ex’s parental rights away?
An order of protection is used often in family matters — sometimes legitimately and sometimes, unfortunately, as a legal tactic. If the order of protection is to protect YOU, then it does not affect the other parent’s rights to see their children. In order to legally strip a parent of his or her rights, the juvenile court must make that determination. My suggestion to my clients is to never use the juvenile court system or Child Protective Services as a tactic against another parent. People justify doing this all the time. This is one of the worst things a person can do to another, and it almost always has a negative impact on the children. We will, however, file an order of protection on your behalf if there are legitimate reasons for you to fear your spouse or ex spouse. We of course defend these actions as well, especially when the other side is using the order as a tactic against our client.
If I get a second job, or receive overtime pay, will I need to pay extra child support?
The Support guidelines do not require a parent to work an extraordinary work regimen to pay for child support. Typically, the court will use a standard 40 hour work week and not count overtime pay or extra side jobs. The exception to this is where overtime is a regular part of the employment, such as mandatory overtime. If a secondary job is ongoing, the court might base support on both jobs, especially if neither one of your jobs is of the 40-hour variety. Because this question is pretty fact-intensive, we must review your particular circumstances in order to give a definitive answer.
To contact Gavin email firstname.lastname@example.org