WARNING: The answers to the questions provided in this section are general in nature and are not intended to create an attorney-client relationship or to replace specific legal advice. Further, the authors and creators and any and all persons or entities involved in any way in the preparation of the following answers to frequently asked questions disclaim all responsibility for the legal effects or consequences of the interpretation of the information provided. Individuals intending to use these answers as an information resource should seek advice from Family Law professionals and experts familiar with the laws of their state, including the State of Arizona. This website is not intended to provide legal advice and should not be relied on for that purpose. DO NOT TAKE ANY ACTION BASED UPON THE INFORMATION SET FORTH ON THIS WEBSITE WITHOUT FIRST CONSULTING A FAMILY LAW ATTORNEY.

What is a "marital dissolution?"

Divorces are termed "dissolution actions", as parties seek to 'dissolve' their marriage. 

Must I reside in Arizona to obtain a dissolution here?

At least one of the parties must have resided in Arizona for the 90 days immediately preceding filing for dissolution in the State of Arizona.

What if my spouse no longer resides in Arizona?

When your spouse no longer resides in Arizona, you can typically seek and obtain a marital dissolution in Arizona, but you must serve your spouse with notice of the dissolution action.  Service may be completed by the spouse's acceptance of service, service by a process server, or - after those attempts at service have been unsuccessful - service by publication.

What if my spouse has never lived in Arizona?

When your spouse has never lived in Arizona, there may be a problem obtaining jurisdiction over them.  However, there are various situations where the dissolution may be pursued in Arizona.  What is essential is that you have resided in Arizona for 90 days prior to the filing of the dissolution action.  You should consult a family law attorney in order to know your rights and obligations.

How long does it take to obtain a marital dissolution?

There is a mandatory 60-day waiting period between the time a party is served with the petition for dissolution and when the court can enter the decree of dissolution.  That means the least amount of time it can take, and only if the parties agree on everything in advance or the other party does not respond to the petition for dissolution (“uncontested" cases), is 60 days.  If the parties cannot reach agreement on all issues or a response to the petition for dissolution is filed, the case may then go to trial and a judge will enter rulings on the disputed issues (a “contested case”).   In that case, most likely, it will take between five and nine months to complete the case.  A settlement may be reached at any time during the pendency of the case, thereby quickening the process.

If the dissolution takes several months, during the dissolution process, what happens to the property and insurance policies?

In all dissolution proceedings, the court automatically issues a preliminary injunction ordering both parties to refrain from disposing of (or stealing or hiding) marital property; incurring new debts on behalf of the marital community; or changing or canceling insurance policies without the written consent of the other party or an order of the court.  Parents are also instructed that they may not remove their minor children (from the marriage) out of state without first obtaining the written permission of the other parent or court order.

If a response to the petition for dissolution is filed, does this mean we have to go to Court?

No.  If you resolve all of your differences, you may avoid appearing in court at all.  However, courts do start setting appearances, starting with a resolution management conference (an initial appearance akin to a ‘status conference’ that takes 15 minute to 30 minutes), as soon as forty days after the response is filed.

Do I have to give a reason as to why I am seeking a marital dissolution?

No. Arizona is a “no-fault divorce state”, which means that the Court will not inquire as to why you seek a dissolution nor enter rulings based upon the wrongdoing of the parties (absent domestic violence and/or child abuse or neglect).  Hence, if your spouse has committed infidelity, the court will in no manner consider the infidelity in awarding property or making decisions as to child custody. 

What if my spouse says he/she won't "give" me a marital dissolution?

You can obtain a dissolution, anyway.  Arizona is a “no-fault divorce state” and a party who does not want a divorce can delay the process, but ultimately cannot prevent a divorce.  As a rule, courts do not reward a party for dragging out the process and, as such, it is the best course to simply accept the situation and take the necessary steps to resolve the dissolution action.

Do I need an attorney?

No.  There is no requirement that you retain an attorney and, in fact, many people obtain a divorce without an attorney.  However, a Family Law attorney is familiar with Arizona Family Law statutes, court rules,  cases, and procedures, and can recommend options for you about which litigants are typically unfamiliar.  An attorney will assist you in making informed decisions, fight for your rights, know what is or is not fair, and provide peace of mind, especially if the other party has hired an attorney.

How much does a dissolution or other action - such as paternity cases or modification of custody and parenting time orders - typically cost?

The cost can vary widely depending on the type of matter.  For matters in which the parties have a complete agreement, we can prepare document packets that the parties sign and file themselves.  For example, we offer dissolution packets for $1,495.00 for cases with children, and without children for $1,195.00.  The parties pay their own filing fees.  For a "contested" matter (no agreements reached in advance), the cost could range from hundreds to thousands of dollars for a dissolution matter that proceeds to trial.  Every case is different so it is difficult to give an estimate without discussing the specific facts of your case.  But, as a rule, the more you can agree upon, the less the cost.

May the court order my spouse to pay my attorney's fees?

Yes.  The court will consider the disparity of the parties' incomes, as well as the reasonableness of their positions on the issues, in determining whether attorney's fees will be awarded.  Typically, however, a court will order parties with relatively similar incomes and who have held reasonable positions to pay their own legal fees and court costs. 

It may be possible for a party to receive an advancement of attorney's fees during the pendency of the case in order to maintain legal representation.  Again, disparity of the parties' incomes, as well as the ability of the requesting party to access community assets or resources, will be considered.

Will my spouse seek spousal maintenance?

Generally, if one spouse has been a stay-at-home spouse or has been employed only part time or at low-paying job, and cannot meet their reasonable needs, that spouse is in a position to seek and award of spousal maintenance.  Also, if the requesting spouse has contributed to the education of the other party, must stay home to care for a very young or disabled child, has been married a significant time, or is older and cannot be expected to establish a career, then the spouse may be entitled to spousal maintenance.   If a party is entitled to spousal maintenance, the court must determine the amount of the award and duration.  A main factor is the ability of the higher earner to meet their reasonable needs after divorce and still assist the other party. 

I purchased the house we live in prior to the marriage (or my spouse signed a quitclaim or disclaimer deed).  Does my spouse have any interest in the house, if it is still in my sole name?

Generally, if the house is in your sole name, it remains your sole and separate property upon dissolution.  However, if payments were made toward the mortgage (during the marriage) from income earned by either spouse during the marriage, the community holds an interest in the equity accrued (in the home).  In that case, the other party is entitled to half of that “community equitable interest.”  The facts of every case are different, so you need to consult an attorney regarding your set of facts. 

I inherited some money during the marriage.  Is my spouse entitled to it?

Generally, property acquired through inheritance is the separate property of the party receiving it.  However, what you did with the money after receiving it can make a difference.  If the money is kept in a separate account and never combined with money earned during the marriage by either or both parties, it will remain the separate property of the recipient.  If the money is put in a separate account and then combined with community money, it may still be separate if it can be traced.  That would generally require an accountant to determine what part of the inheritance remains separate and what part is community.  If inherited funds are used to pay community debts, there is a presumption that the money was a gift to the marital community, which may be overcome with the proper evidence.

Does my spouse have an interest in my retirement?

Retirements, 401ks, IRAs, pensions, stock options, deferred compensation and any other similar assets earned during the marriage belongs to the marital community and may divided.  If a party earned some of the retirement prior to marriage and some during the marriage, the part earned prior to the marriage is separate and the part earned during the marriage is community.

What is community property and community debt?

Generally, community property and debt is property and debt acquired after the parties married and before one party serves a petition for dissolution of marriage or legal separation upon the other.  Parties can unknowingly alter the characterization of property and debt during the marriage, from sole to community or from community to sole.  Courts divide community property and debt equitably (which does not necessarily mean ‘equally’).

What is sole and separate property and debt?

Sole and separate property and debt is generally property and debt that you acquired prior to the marriage, or following service of a petition for dissolution or legal separation.  It may also include property acquired during the marriage that you solely inherited and property given to you as a gift.  Certain actions can change the characterization of property and debt.

How do courts determine child custody?

The Court will determine legal custody (which is the right to make decisions pertaining to the child's health, safety, education, religion, and welfare) and parenting time (which is the amount of time each parent has the child in his or her care).  The Court makes these decisions based on the “best interests” of the child, taking into account several factors, including:

1. The wishes of the child's parent or parents as to custody.
2. The wishes of the child as to the custodian.
3. The interaction and interrelationship of the child with the child's parent or parents, the child's siblings and any other person who may significantly affect the child's best interest.
4. The child's adjustment to home, school and community.
5. The mental and physical health of all individuals involved.
6. Which parent is more likely to allow the child frequent and meaningful continuing contact with the other parent.
7. Whether one parent, both parents, or neither parent has provided primary care of the child.
8. The nature and extent of coercion or duress used by a parent in obtaining an agreement regarding custody.
9. Whether a parent has taken the required parenting class.
10. Whether either parent was convicted of an act of false reporting of child abuse or neglect.
11. Domestic violence.

After the custody orders are entered, can the other parent move the child out of state?

If you both continue to reside in Arizona, there are restrictions for relocation of the child if the relocation will be in excess of 100 miles within the state or anywhere outside of Arizona.  Arizona Revised Statutes §25-408 defines the requirements necessary when a parent seeks to relocate with the minor child.  A sole custody determination does not give the parent the right to relocate with the minor child.

How is child support determined?

Child Support is generally determined by the Arizona Supreme Court's Child Support Guidelines, which set forth a formula that incorporates the gross income of both parents; child-care costs; health insurance costs; payment and receipt of spousal maintenance; other children for whom a party provides support; extraordinary costs; and the amount of time the child spends with each parent.

How is child support paid?

In most cases, child support is paid through the Arizona Support Payment Clearinghouse and, whenever possible, by wage assignment. Money paid directly to the payee by the payor may be considered a gift and may not credited towards child support.

How is child support modified?

Either party may file for a modification of child support when a substantial and ongoing change in circumstances of one or both of the parties justify an adjustment.  The adjustment must result in a 15% change in the child support amount.  Modifications may occur several times until a child reaches the age of majority.

Can grandparents get visitation rights with their grandchildren?

Yes, under the following circumstances:

When the visitation rights would be in the best interests of the child and any of the following is true:

1. The marriage of the parents of the child has been dissolved for at least three months.
2. A parent of the child has been deceased or has been missing for at least three months. For the purposes of this paragraph, a parent is considered to be missing if the parent's location has not been determined and the parent has been reported as missing to a law enforcement agency.
3. The child was born out of wedlock.

In determining the child's best interests the court shall consider all relevant factors, including:

1. The historical relationship, if any, between the child and the person seeking visitation.
2. The motivation of the requesting party in seeking visitation.
3. The motivation of the person denying visitation.
4. The quantity of visitation time requested and the potential adverse impact that visitation will have on the child's customary activities.
5. If one or both of the child's parents are dead, the benefit in maintaining an extended family relationship.

If logistically possible and appropriate the court shall order visitation by a grandparent or great-grandparent to occur when the child is residing or spending time with the parent through whom the grandparent or great-grandparent claims a right of access to the child. If a parent is unable to have the child reside or spend time with that parent, the court shall order visitation by a grandparent or great-grandparent to occur when that parent would have had that opportunity.

If you have questions please don't hesitate to contact Jennifer W. Shick and Shick Law Offices L.L.C. today for a free initial consultation.  We're here to help!