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Written by Canterbury Law Group

What is the Difference between Divorce and Legal Separation in Arizona?

In Arizona, there are two ways to formally and legally remove your estate from your spouse: divorce and legal separation. It’s important to understand that these are two different processes. Legal separation is not another term for divorce. While there are certain overlapping legal similarities between the two, it’s important to understand that these are two different things. Read below to find answers to commonly asked questions about divorce and legal separation in Arizona:

What is the Difference between Divorce and Legal Separation?

Obtaining a divorce means that the marriage is legally dissolved, with all assets separated, and both spouses legally become single people capable of remarriage and child custody rights are legally established. In contrast, a legal separation does not dissolve a marriage. The spouses will be technically still married to each other, but also judicially separated. However, like with a divorce, virtually all assets and debts are typically separated between the two spouses. But unlike in a divorce, the spouses cannot claim to be single persons for any legal reason nor can they remarry.  Most people pursue Legal Separation to maintain valuable health care coverage, among other reasons.

Why Seek Legal Separation Instead of a Divorce?

Legal separation may be suited for some people over a divorce for several reasons. Most spouses who do not want to divorce due to religious reasons or personal convictions can still undergo legal separation to judicially extricate oneself from a spouse. Spouses that want to live apart but without getting a divorce can obtain a legal separation.

Some people prefer to legally separate rather than divorce in order to keep valuable health insurance benefits of a group plan. As mentioned above, legally separated spouses are still considered married, and thus can benefit from continued spousal health insurance coverage. Similarly, those who have been married for less than 10 years can continue to receive social security benefits on their spouse’s federal benefits following a legal separation, unlike with a divorce in which such benefits are completely terminated for the lower earning spouse.

If you need to formally cut all legal, civic and other ties to a spouse, then you will need a divorce.

Grounds for Divorce or Legal Separation

Arizona is a no-fault state. It does not matter who did what to whom, or who cheated with whom.  Therefore, for both divorce and legal separation, you don’t need to show any reason for divorce to a court. If one spouse desires to divorce then the court will grant the divorce. Similarly, spouses do not need to prove a reason to get a legal separation. Claiming that the marriage is “irretrievably broken” is reason enough to obtain a Decree of Legal Separation as long as the other spouse does not object.  Only one of the two spouses must desire the divorce.  The person who “wants to hang on” cannot prevent the legal divorce from ultimately taking place.

What if One Spouse Insists on a Divorce?

Unlike in a divorce, legal separation is only granted if one spouse does not object. If one spouse wants a legal separation but the other wants a divorce, the court will convert the case and grant the divorce. Because a spouse can object, it’s important to discuss and make sure this is what both parties want. Consult with a local divorce attorney in Scottsdale to discuss your options.

What if the Legally Separating Couple has Children?

Child custody issues for legally separating couples are handled similarly to a divorce by Arizona courts. The courts will always prioritize the needs of the children. A family court will also determine parenting time and parental responsibilities.  You will receive formal judge imposed custody orders from the Court under either scenario.

What Happens to Marital Assets and Debts When a Couple Legally Separates?

Asset and debt separation for legal separations are also handled similarly to divorces. A court will make the determination.   Usually, the date upon which the original Legal Separation or Divorce Petition is “served” on the receiving spouse is the date that the community terminates.  Put another way, any salary or paychecks received after the date of service will usually be the earning spouse’s sole and separate property.  Exceptions apply, however.  Please consult seasoned legal counsel on all of these issues.

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Written by Canterbury Law Group

Alimony Factors in Arizona

Alimony is the former name for what’s now called spousal maintenance. Alimony is financial assistance that the court orders one spouse to provide another spouse when a marriage ends. One spouse must request spousal support for the court to issue an order compelling the payments. There are several factors that a court takes into account when determining alimony. The court first examines certain qualifying factors to determine if one spouse even can procure alimony and then and only then decides how much and for how long.   There are no juries in Arizona family court, only a sitting judge.  So whether you like it or not, one person, in a black robe, will someday make a big decision on how much and how long your ex-spouse may or may not be paid upon divorce.

The Need for Spousal Maintenance

The court first decides whether one spouse actually qualifies for spousal maintenance and whether the other has the means to pay, before ordering maintenance be paid. A spouse may request alimony if he or she does not have enough property after marital distribution to provide for oneself, or is somehow unable to find proper employment. If one spouse has significantly contributed financially to the other spouse’s education, then alimony can be requested by the spouse who contributed. The court will look at the other’s spouse’s financial situation as well. A divorce lawyer in Scottsdale can help you file an alimony petition.

Duration of Marriage Affects Alimony

The longer the separating couple has been married, the higher the chance for alimony for one spouse may be. Generally speaking, if married less than 5 years, procuring maintenance from the wealthier spouse can be a challenge, or impossible. Once one hits ten years or more, the ability to obtain maintenance for some period of time appears to jump significantly.  If you have been married 30 years or more you can almost guarantee that someone is going to be paying spousal maintenance to the other.

The law of Arizona specifically states to take the duration of marriage into consideration when setting alimony. However, the law does not specify the ideal duration or a minimum duration. So even a spouse that was married for just a week can technically request alimony.  As noted, however, marriages of short duration rarely qualify for a payout.

Can Alimony Be Granted to Unfaithful Spouses?

The short answer is yes.  This is a common question for some divorcees. Understandably, a spouse may not want to pay alimony to another who has been unfaithful throughout the marriage. So, some spouses may prefer to have such spousal misconduct be a factor in determining alimony. However, in Arizona, divorce is not granted based on spousal misconduct. Arizona is a no fault jurisdiction.  Thus, couples can file for divorce in Arizona without providing a reason. If one spouse contests the divorce, the other spouse only has to show to the court that the marriage is broken beyond repair. Marital misconduct is not legally relevant to the divorce proceedings, and therefore will not play a role in any alimony fight. Unfaithfulness on one side does not lead to automatically denying alimony for that spouse, nor does the court demand the cheating spouse to pay the other. The same applies for dissolution of covenant marriages.  Long story short, while he or she may have cheated—he or she may still get paid by the Court depending on your income and length of marriage.

Prenup Roles in Alimony

A prenuptial agreement is an optional private contractual agreement that spouses enter into before marriage. When a couple divorces, a prenup is upheld for the most part if all provisions are in accordance with the law. If one spouse has agreed not to seek alimony in a prenup, the court will often uphold this in divorce proceedings. However, the court may rule otherwise if the spouse that needs alimony could end up in a welfare state without spousal maintenance. Arizona law allows courts to decline the validity of prenups if one spouse could end up in dire financial need following divorce.

Determining alimony is affected by many factors. Consult with a competent divorce lawyer to secure alimony as you desire, or to defend vigorously against paying it.

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Written by Canterbury Law Group

Grandparent Rights in Arizona

Grandparents form an important part of extended families. In some families, grandparents are like another set of parents to children. Most grandparents care deeply for their grandchildren. If a child’s parents or guardians are failing in their duties, the grandparents might wish to step in and help.

In Arizona, grandparents can legally seek custody of grandchildren or visitation rights under the statutes A.R.S § 25-409. A grandparent must go to family court for these rights, and these petitions are carefully reviewed by a judge. The court decision will be based on what’s legally called the “best interests of the child.” Therefore, grandparents who want legal custody, visitation rights, or seek to adopt a grandchild should consult with Family Law help in Scottsdale.

How Can Grandparents Get Visitation Rights?

If a child’s parents deny the grandparents visitation rights under any circumstance, the grandparents can file a petition in court in Arizona. The court will consider the petition if the following conditions are true:

  • The child’s parents were never married.
  • The grandparent is the parent of a deceased or missing (for at least 3 months) parent of a child.
  • The petitioning grandparent is the parent of a non-custodial parent of a child, where the child’s parents are divorced and have been for at least three months.

If the above conditions are not met, it’s unlikely the court will consider the petition. Exceptions may be granted in the case of extraordinary circumstances, such as abuse. These considerations fall under the child’s best interests category.

Eligibility of the Grandparent

Grandparents petitioning for custody are required to meet certain eligibility criteria as set by Arizona law. The requirements go as follows:

  • The child’s legal parents should be deceased, in the process of getting divorced or legally separated, or were never married
  • For the grandparent to get custody of a child, then remaining in the parent’s custody must be detrimental to the child’s well-being.
  • The grandparent must be able to be “in loco parentis” to the child, meaning that the grandparents will provide the same care and support as a parent.
  • The custody of the child should not have been decided in the previous year (exceptions are granted in cases where the child could be harmed).

If the above eligibility requirements are not met, then the petition will be dismissed.

How Does an Arizonian Court Determine the ‘Best Interests of the Child’?

Under Arizona law, a court must consider “all relevant factors” when determining the best interests of the child. In family law, there are actually five statutory factors that courts always consider when approving a petition. Here are those factors as follows:

  • The relationship the grandparent has with the child in historical terms
  • The reason that the grandparent is petitioning for visitation rights
  • Why the parents may have denied the grandparent visitation rights
  • The impact of visitation on the child’s life or activities if the court grants the grandparent visitation rights, depending on the amount of visitation the petitioner seeks
  • If a parent, or both, are deceased, the benefit grandparent’s visitation will have on other extended members of the family

When Can Grandparents Petition for Visitation Rights

Grandparents can go to the family court directly for visitation rights. If the parents are getting a divorce or are in the middle of a custody battle, then a grandparent can sometimes file the petition as part of the divorce or custody proceedings. Consult with a lawyer for more specifics on when to file.

Grandparents can also formally adopt a child, but these types of petitions are subject to a different set of laws. Your family lawyer will be able to assist you in explaining these laws.

Grandparent Rights in Arizona

Grandparents form an important part of extended families. In some families, grandparents are like another set of parents to children. Most grandparents care deeply for their grandchildren. If a child’s parents or guardians are failing in their duties, the grandparents might wish to step in and help.

In Arizona, grandparents can legally seek custody of grandchildren or visitation rights under the statutes A.R.S § 25-409. A grandparent must go to family court for these rights, and these petitions are carefully reviewed by a judge. The court decision will be based on what’s legally called the “best interests of the child.” Therefore, grandparents who want legal custody, visitation rights, or seek to adopt a grandchild should consult with Family Law help in Scottsdale.

How Can Grandparents Get Visitation Rights?

If a child’s parents deny the grandparents visitation rights under any circumstance, the grandparents can file a petition in court in Arizona. The court will consider the petition if the following conditions are true:

  • The child’s parents were never married.
  • The grandparent is the parent of a deceased or missing (for at least 3 months) parent of a child.
  • The petitioning grandparent is the parent of a non-custodial parent of a child, where the child’s parents are divorced, and have been for at least three months.

If the above conditions are not met, it’s unlikely the court will consider the petition. Exceptions may be granted in the case of extraordinary circumstances, such as abuse. These considerations fall under the child’s best interests category.

Eligibility of the Grandparent

Grandparents petitioning for custody are required to meet certain eligibility criteria as set by Arizona law. The requirements go as follows:

  • The child’s legal parents should be deceased, in the process of getting divorced or legally separated, or were never married
  • For the grandparent to get custody of a child, then remaining in the parent’s custody must be detrimental to the child’s well-being.
  • The grandparent must be able to be “in loco parentis” to the child, meaning that the grandparents will provide the same care and support as a parent.
  • The custody of the child should not have been decided in the previous year (exceptions are granted in cases where the child could be harmed).

If the above eligibility requirements are not met, then the petition will be dismissed.

How Does an Arizonian Court Determine the ‘Best Interests of the Child’?

Under Arizona law, a court must consider “all relevant factors” when determining the best interests of the child. In family law, there are actually five statutory factors that courts always consider when approving a petition. Here are those factors as follows:

  • The relationship the grandparent has with the child in historical terms
  • The reason that the grandparent is petitioning for visitation rights
  • Why the parents may have denied the grandparent visitation rights
  • The impact of visitation on the child’s life or activities if the court grants the grandparent visitation rights, depending on the amount of visitation the petitioner seeks
  • If a parent, or both, are deceased, the benefit grandparent’s visitation will have on other extended members of the family

When Can Grandparents Petition for Visitation Rights

Grandparents can go to the family court directly for visitation rights. If the parents are getting a divorce or are in the middle of a custody battle, then a grandparent can sometimes file the petition as part of the divorce or custody proceedings. Consult with a lawyer for more specifics on when to file.

Grandparents can also formally adopt a child, but these types of petitions are subject to a different set of laws. Your family lawyer will be able to assist you in explaining these laws.

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Written by Canterbury Law Group

Common Misconceptions about Divorce in Arizona

We all have our own ideas about divorce. When it comes to the legal aspects of divorce, most people have significant misunderstandings. The legal process to divorce in Arizona is straightforward, but cases that go before a judge can become really complicated. If you are considering a divorce, it’s very important to realistically understand the legal process and consequences. Here is a list of common misconceptions about divorce most Arizonians have:

Does Filing a Court Petition Equal a Divorce?

When you file for a divorce in a court, you are required to file a petition. Some people believe this petition to be equal to a legal divorce. It is not. You are legally divorced when a judge says so and issues a ruling which recognizes the formal Date of Separation. From that day on, your civil status will be officially divorced and single, but not a day before. This date is very important because your income and property ownership (that you retain after the proceedings) only become non-marital property after this date is set by the court.

Can Child Custody be Arranged According to a Prenup?

This is an absolutely inaccurate idea. Prenups can set provisions for things like asset division in a divorce. However, child custody is solely up to a family court to decide. Child custody is largely a matter of public policy that ensures the well-being of a child. That requires judicial assessment of a child’s current living situation. Therefore, having provisions for child custody is highly improper in a prenup agreement. It could possibly render the whole agreement void. To make sure your prenup agreement has no chance of being voided by a court, consult with a divorce attorney in Scottsdale.

Can A Spouse be Ordered to Pay My Attorney’s Fees?

In Arizona, the laws allow for a divorce court to order one spouse to pay the legal fees of the other in whole or part. However, this is very much subject to a judge’s independent review. The aim of these laws is to eliminate any income disparity between the spouses from hindering access to similar legal representation (going to court on “a level playing field” so to speak). However, the judge will see how “reasonable” both parties are. In other words, your spouse will be ordered to pay your legal fees if only the request is evaluated as reasonable and that your positions are in fact reasonable as presented in court.

Is Alimony is Forever in Arizona?

Courts in Arizona typically set alimony for a specific period of time, such as until a child comes of age. The purpose of alimony is to provisionally support a spouse in need. But alimony is not financial life support. If the receiving spouse dies, remarries or cohabits with another, then alimony can be terminated.   Generally speaking, the longer the duration of the underlying marriage, the longer the potential duration of payout on spousal maintenance.

Creditors will Only Go After the Spouse for Debts He or She Agrees to Pay Off

Arizona is a “community property” state. That means that any debts incurred during a marriage become the presumptive responsibility of both spouses. The actual person who signed the loan agreement may not always matter. This status applies even after a divorce. Your spouse could agree to pay off a credit card loan or the home equity line of credit in the divorce agreement, but you won’t be completely off the hook. If the spouse fails to pay, the third party creditors could come after you. Any agreement in a divorce is between you and the spouse, not the creditor.

Hopefully, now you are a bit more enlightened about what getting a divorce means in Arizona.

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Written by Canterbury Law Group

How to Find a Divorce Mediator in Arizona

A divorce mediator is a neutral third-party that tries to facilitate legal negotiations between spouses who are getting divorced. If you and your spouse cannot come to conciliatory terms on your own, you may require the services of a divorce mediator.  Some spouses conduct the mediation with just a mediator and no lawyers (3-way mediation), and others bring their own lawyers to aid their representation in front of a private mediator (5-way mediation).

Hiring a divorce mediator is not the same as hiring an attorney. A divorce mediator has the interests of both spouses in mind. That’s why your divorce lawyer in Scottsdale cannot typically act as a mediator; the lawyer will always act on your behalf, and the same goes for the other party’s lawyer as well. Divorce mediators listen to both parties, assist positive communications, and try to get the divorce negotiations going.

Here is a list of qualities to look for when finding a divorce mediator in Arizona:

Neutrality is Very Important

The purpose of hiring a divorce mediator is to level the playing field and make the talking table less hostile and aggressive. So make sure the person you hire is absolutely neutral. That means no friends, family, colleagues or divorce lawyers. The divorce mediator will act as an advocate, but not a legal advocate. All responsible divorce mediators encourage spouses to hire divorce lawyers separately to review any legally-binding agreements.  Mediations can be one day or a series of days.  Both spouses may want to consult their own privately retained lawyers before, during or after mediation sessions.

Search for Mediators who Offer Flat Fees

No matter what, you will both have to pay for a divorce mediator. Good divorce mediators understand that the financial costs of divorce are high, and offer affordable rates. Ideally, find a mediator that charges only a flat fee for all services provided. Avoid the ones that charge various additional fees. Divorce mediation in Arizona can cost anywhere between $3,000 and $10,000. The spouses can split the costs.  This is usually far cheaper than heavily contested litigation with lawyers on both sides.  Even if mediation ‘fails’, you will be far better equipped to enter the court system against your spouse with your separately retained legal counsel.

Choose a Mediator who Knows the Law

Divorce mediators do not have to be lawyers, but they typically are and are always knowledgeable about the law. It’s best to choose one of these mediators so he or she can help you both make informed decisions regarding the separation process. During negotiations, an educated mediator will be able to make suggestions according to the established law. You can then have these suggestions run by your lawyer to see if they are in your best interest.

Strong and Stable Communication is a Must

Divorce mediators typically excel in communication. However, communication goes both ways. If you are, for any reason, uncomfortable communicating with the divorce mediator, it’s time to look for a new one. Mediators must encourage fairness with the other spouse and act swiftly to diffuse problematic situations. Without the proper manner of communication, a divorce mediator will not offer many benefits to you.   You can walk out, your spouse can walk out, and in some cases, the mediator will terminate the session if he or she believes that a final mediated settlement is not achievable.

It’s best to hire an experienced divorce mediator who has been doing this job for years. Many private litigation attorneys practice divorce mediation part-time. You might also consider a full-time divorce mediator who can dedicate full attention to your case. The problem with divorce lawyers acting as mediators is that lawyers are used to battling for a client, not acting as a neutral party. So, hire a neutral mediator and hire a lawyer separately to watch out for your best interest in the negotiations.  As noted, some parties elect to conduct 5-way mediations: (1) Husband (2) Husband’s legal counsel (3) Wife (4) Wife’s legal counsel and (5) the Mediator.

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Written by Canterbury Law Group

 How to Divide Property When Getting a Divorce in Arizona

Property division can become challenging for divorcing couples. However, this need not be a challenge.  And If you and the soon-to-be-ex cannot come to good terms on your own, a court will have to do it for you. Under Arizona’s community property law, debts and assets accumulated during a marriage belong to both parties 50/50 in the absence of a prenuptial or postnuptial agreement that says otherwise.  Arizonian family courts emphasize fairness when dividing up a property. Unlike in some states, the property may not be divided equally 50/50, but equitably in the eyes of the judge assigned to your case.  This can sometimes mean 55/45 or 60/40 or 40/60—every case is unique.

No matter what the facts, you will have to hire a talented divorce attorney in Scottsdale, Phoenix or your local area in the state. Absent years of litigation experience, you likely won’t be able to capably represent your interests in court without a deep knowledge of divorce and property laws in the state. If you are undergoing a process of dividing property in a divorce, here are some important items you should be aware of:

Determine if the Property Belongs to the Community or the Separate Category

There is a very clear distinction between community and separate property under Arizona law. Separate property is assets a spouse owned before marriage, inherited solely during the marriage, was gifted solely during the marriage, or purchased alone during the marriage with sole and separate finances. A prenuptial or postnuptial contract may also designate that certain items are to be treated as separate property.  Absent these facts, the law presumes all property and all debt, acquired or originated during the marriage, is community property.

Courts in Arizona only have jurisdiction over community property, not either spouse’s sole and separate property. Each party will have to provide evidence for separate property claims in the form of financial documents. It is possible that property that was originally separate later becomes community property during the marriage. For example, a house purchased by one spouse before marriage may become community property following the marriage if both spouses names are later placed on the recorded deed.

The reason that each is different is that the distinction between community and separate property during the marriage can be blurry. Some spouses may have unknowingly turned separate assets into community property by the “commingling” process, where two assets are combined. A bank account owned by one spouse before marriage becomes marital property if the other spouse makes deposits to it later with community income. Sometimes assets are partially community and partially separate, such as houses and retirement accounts. A business that one spouse operated but later received contributions from the other spouse after marriage can fall into this category.   A seasoned lawyer can walk you through these issues, and advance them in a court of law.

Set Values for Property

Regardless of whether community or separate property, all assets and debts must be assigned a monetary value before equitable division. The two spouses can do this themselves, or a court can do it in case the parties cannot agree on values. Typically appraisals are used to set values of real assets, like houses, antiques, or vehicles. The toughest asset to value can sometimes be retirement accounts.  You may have to hire a financial professional like an actuary to ascertain the value of a retirement account and the growth in value of such retirement assets since the original marriage date.

The Process of Dividing Property

You can see the first section above that determining whether a property is community or separate can be complicated. Ideally, both parties come to an agreement out of court. But this rarely happens when multiple assets are in question and the stakes involve hundreds of thousands of dollars or more.

Courts may divide up property in multiple ways. In the case of property that is partially separate, the court may offer a spouse the option of buying out the remaining portion from the other. In some cases, it may be recommended to mutually sell the assets and divide the proceeds. Some property, like family homes, can be co-owned even following a divorce if children are living there or visiting each year.

Arizona courts typically divide property approximately equally among the divorcing partners. There are only a handful of exceptions to the rule. For example, if one spouse is known to have squandered money through irresponsible activities like gambling or drug use, the court may rule in favor of the other. In the case of property under massive debt, the court may rule against the spouse responsible for the debt.  At the end of the day, you will need the guidance and stewardship of experienced legal counsel to navigate these issues for you.

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Written by Canterbury Law Group

Common Questions about Divorce in Arizona Answered

In Arizona, divorce refers to a legal “dissolution” of marriage. You will go through a procedure in court to formally end your marriage. If you are the one who goes to court for a divorce, you will be identified as the “petitioner.” The other spouse will be identified as the “respondent.” Divorce in Arizona is not the same as in other states. Here are some answers to common questions most people have about divorce in Arizona.

Can I File for Divorce Anytime?

Either you or your spouse must have resided in the state for a minimum of 90 days before filing for a divorce at a local Arizona court. That is a legal requirement.  If there are children, they must typically be in the state for 180 days to vest custody jurisdiction, depending on the facts of the case.

Do I Need a Divorce Attorney?

Technically, you can represent yourself in court. However, it is highly recommended to get your attorney from your local area, like a divorce attorney in Phoenix. If you choose to self-represent, the court will assume that you know all the laws and rules pertaining to your case. You will have to follow court procedures on your own. A judge may disallow you to take certain actions if you do not properly follow court procedure. No one at court will be able to give you legal aid because they are barred by law from doing so.

You can seek legal aid if you cannot afford an attorney for your divorce. You can also petition the court to have the spouse pay for your attorney’s fees if your spouse makes substantially more income than you do.  Every case is unique.  

Do I Need to Give a Reason for Divorce?

Not in Arizona. The state has a so-called “no fault” clause, which means neither party needs to give a reason for the divorce. Moreover, the romantic escapades of Husband or Wife will have no relevance in the underlying dissolution action.  The mere desire to get a divorce is enough. In the court, only one spouse needs to claim that the marriage is “irretrievably broken “to finalize a divorce. The only exception is if the spouses have previously chosen a “covenant marriage”. Then, the petitioning spouse must provide ground or reasons for the divorce under state law.

What are A.R.S. and A.R.F.L.P.?

You will see these acronyms in the papers your divorce lawyer in Scottsdale or elsewhere files. The letters stand for particular legal statutes, or laws, in Arizona. A.R.S. refers to Arizona Revised Statutes, and A.R.F.L.P. refers to Arizona Rules of Family Law Procedure. You can go to the Arizona court or state websites to get access to these legal documents and rules if needed.  Ideally, you simply hire counsel and let them do their job to advocate for your rights in the underlying divorce.

What Do I Do if My Spouse Doesn’t Want a Divorce?

Too bad.  It’s going to happen anyway.  In cases where a spouse is morally against the divorce from advancing, there is little they can do to stop the case.  At best, the objecting spouse can request the court order a mandatory reconciliation counseling session which typically only pauses the case for 30 to 60 days. If at the end of reconciliation session, the spouses have not come to an agreement to postpone the divorce, the proceedings will go forward. Conciliation meetings are free of charge and rarely derail a case.  

If you have children, then your proceedings will be subject to a wide range of family laws in Arizona. The legal aspects you should consider will depend on the type of custody you seek. For more information, you should contact an attorney in your area.  Your children are your most treasured asset and case strategy and approach to maximize your custody is critical and experienced legal counsel even more important in such instances.  

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Written by Canterbury Law Group

Answers to Frequently Asked Questions about Child Custody in Arizona

Custody in legal terms refers to the person a court has appointed as the parent or guardian of a child. The person retaining child custody manages the well-being of that child. The legal custodial parent will have the right to make decisions about the child’s education, religious teachings, and healthcare. There are different types of custody, but courts in Arizona do not favor one over the other. The decisions will be based on what’s ultimately good for the child. If you are a parent currently seeking custody of the child, or if you are already a custodial parent, here are answers to some of the questions frequently asked on the subject:

What is the different between “sole,” “joint,” and “legal” decision making authority?

These are three ways in which a court can grant custody of a child. Sole Legal Decision Making means that one single parent has complete legal custody of the child’s legal decision moving forward. The court has granted this parent the express authority to make major decisions regarding the child’s life. Parents can discuss these issues together, but the sole Legal Decision Making parent will always have the final say.

In contrast, in Joint Legal Decision Making situations, both parents have legal decision making authority over a child. However, in order to reach a final decision, both parent must agree—or divert the case to mediation or back to the court if no agreement can be reached. 

Can the court declare one parent’s rights superior to another’s in a Joint Legal Decision Making case?

No. Generally, when a court grants joint Legal Decision Making authority, both parents have equal rights to make decisions regarding the child’s well-being. No one parent is deemed superior to another. However, in special cases, one parent may get the sole right to make decisions regarding a certain aspect of the child’s life if the court decides it’s the best for the child. You should refer to an attorney to seek more family law and child custody information with regards to your situation.

Is there a difference between legal decision making powers and physical custody?

Absolutely yes.  Legal Decision Making authority relates to granting a parent the authority to make decisions about the child’s wellbeing, e.g. where the child goes to school. Physical custody, also called Parenting Time, determines where the child lives from day to day. A parent can have legal custody, but not physical Parenting Time, although this is rare. If a child is to live with both parents for equal amounts of time, then the court will have to grant both parents joint physical Parenting Time. Some parents may prefer for the child to live in one place without moving around, and have one parent with physical virtually all Parenting Time. But both parents, in this case, can have legal custody as well. Refer to Family Law help in Scottsdale, or your local area, for specific information.  Legal assistance is recommended to navigate these complex legal channels. 

Are court custody orders final?

The court decides custody when the parents cannot agree upon themselves, how to share custody of a child. A court may grant early custody orders when divorce or separation filings are in process. Once the divorce or a legal separation becomes final, the court may make modify prior orders which are dramatically changed at the time of trial. This custody decision by the court will stand, subject to certain exceptions, for at least one year, or upon a showing of a substantial and continuing change of circumstances thereafter.

If you want a custody ruling to be modified after trial, you can petition the court to make changes to the order. You will have to present strong evidence that the changes requested are in the best interest of the child. You are very likely going to need the able assistance of legal counsel at that time. 

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Written by Canterbury Law Group

Divorce Tips from Attorneys

Getting a divorce can be a messy affair, financially and emotionally speaking. Contested divorces can be particularly hard on both parties, as experienced divorce attorneys will quickly point out. Divorce has a way of bringing out the worst in even the nicest people. While emotions can play a role, it’s critical to maintain clear emotions when dividing assets in a divorce and reaching a custody agreement if there are any children. Here are several tips for Arizona divorcing couples from divorce lawyers who have seen it all:

Keep Your Feelings out of the dispute

Divorce can be a very emotional affair, no matter how hardened one tries to be during the process. It’s very important to keep personal feelings out of it when dividing assets and negotiating during divorce proceedings. Emotions can unnecessarily complicate the process. You must aim to get the best out of divorce proceedings to ensure your long-term well-being. Getting caught up in petty fights in the moment will not go well for either party.  Let your lawyer do their job, stand back and watch, and ideally everything will be handled.

Pick Your Battles Wisely

According to a divorce lawyers in Scottsdale, some people pay attorneys a lot of money to recover assets that do not matter. For example, it makes no financial sense to get your divorce attorney to send a letter to retrieve a $100 piece of furniture from the ex, especially when attorney letters can cost as much as $500. Divorce can be costly. So wise petitioners pick battles that are worth spending money to win.

Assets in One Spouse’s Name Can be Divided

In divorces, basically everything can be divided between the spouses. This includes assets that are specifically under either spouse’s name. Debt, extra income, royalties, a lottery win—all of these and much more can be divided in divorce proceedings. Divorce attorneys warn clients not to assume that assets under one’s own name are not up for grabs. The only protection against dividing assets is a prenup or a postnup agreement. But these agreements should be handled early on in the marriage.   Even if you signed a prenuptial or postnuptial agreement, it could be deemed void by the court depending on the circumstances during which you signed such paperwork. Consult an experienced lawyer to determine your rights. 

Be Careful of Generous Income Reporting Before Divorce

It’s common for people to overstate incomes in credit card or loan applications. A spouse that discovers such generous disclosures of income can present these documents in court in a divorce case. Under those circumstances, the court could assume that you make as much money as you boasted in your loan application under penalty of perjury in a prior loan application, warns a divorce attorney in Scottsdale. On the other hand, if you find similar overstatements by your spouse, you can be the one to use them in court against them.

Take Time to Gather Evidence for the Divorce

Divorce lawyers advise clients not to walk out the door before proceedings begin, unless an abusive situation is present. It’s highly advantageous to stay behind and gather evidence for the divorce, such as photographing assets, property and gathering documents. Make copies of account statements of the spouse as well to present your case with solid evidence once the proceedings begin.

Divorcing is not easy on anyone. But following the above suggestions will help you present the best case in court.  Hiring a seasoned legal professional to guide you through this complex process is self-evident.

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Written by Canterbury Law Group

Preparing for Divorce in the New Year

The Scottsdale divorce lawyers at Canterbury Law Group have represented hundreds of clients in Scottsdale divorce cases.  Although every case is unique, there are certain steps that every potential divorcee should take:

  • Do not try to hurt your soon-to-be ex –   Do not let your emptions get the best of you.  Especially if you and your spouse have children together, you need to try to take the higher road and attempt to part on decent terms. The court may frown upon any type of negativity or drastic misconduct against the other spouse. 
  • Confidently know your joint finances – It is estimated that 40% of divorce proceedings are about money. Be well informed in advance about your shared accounts.  Specifically, you should know all online passwords to bank accounts, which accounts have automatic payments and where money is invested, including the names of all accounts, the account numbers and the investment advisors.  Many times one spouse knows everything and the other spouse knows nothing about finances.  The law provides that both spouses be provided 100% financial disclosures while the divorce is pending. 
  • Find a trusted legal team – A lawyer who is knowledgeable in family law in your state can likely get you a better settlement because they understand the state-law nuances and understand local judges’ tendencies and opposing lawyers. If you and your spouse have complicated family assets, you likely need a legal team with additional expertise.  Take into consideration every possible avenue and plan accordingly.
  • Know your future living expenses – Your future financial well-being should be your top priority.  Thoroughly understand your current cost of living before the divorce proceedings start, so you can ask for a fair amount in the divorce settlement.
  • Also remember that anything written online about an ex-spouse will exist forever—when the children are old enough to read.  Although you may be hurt now, you don’t want to hurt your children even more in the future.  Texts and emails can also be used against you at trial.  Think twice before hitting ‘send’ on that nasty message to your spouse. 

The Scottsdale divorce attorneys at Canterbury Law Group have represented women and men, young and old, in their complicated and simple divorce cases.  To discuss your options in a Scottsdale divorce, call today to schedule a consultation.  480-744-7711.

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