Frequently Asked Questions

Frequently Asked Questions - Family Law

What happens to children in a divorce?
Decisions regarding the children go under the general statutory concept of "best interest of the children." The definitions that one needs to understand are legal custody and physical custody. Legal custody generally refers to who makes the legal decisions for the children (that is educational, medical, and religious decisions). Physical custody refers to with whom the children reside. Legal custody can be shared, or it can be sole. Physical custody can also be shared. The Superior Court does not have a statutory set preference for physical access. It is hoped that the parents will make an access schedule that benefits both of the parents, and is in the children's best interest; however, if the parents cannot agree on an appropriate access schedule, then the court can intervene. There are newly published parenting plan guidelines the court may consider.

The legislature has now imposed a requirement that all parties attend a parental education class as a part of divorce with children. The court can also impose a requirement that the parties attend mandatory Conciliation. That is where the parents attend a session with a counselor in attempt to work out a Parenting Plan.

In extreme cases, the court can also order a private custody evaluation. Normally, in this case, the court would appoint a psychologist on a pre-approved list. The parties would share the expense of that psychologist. Fees sometimes range as much as $3,000-$4,000 to do an 8-week long custody evaluation. In the custody evaluation, the evaluator interviews each parent and the children. The evaluator also observes the children with each parent, and the evaluator will also talk to "collaterals" (that is other people that may shed light upon the case such as in-laws, extended family, counselors, case workers, etc.). In determining legal and physical custody, the court always considers any acts of domestic violence. If they are significant and ongoing, or there has been a history of domestic violence, the court frowns on this and it weighs very heavily in determining who should get custody of the children.

The court also considers the behavior of the parents, including, alcohol abuse, drug usage, and many other factors. Some clients often ask if the courts review an extra-marital affair when considering an award of custody. Although the statute does not specifically delineate extra-marital affairs, it looks very closely at the best interest of the children. Anything that a father or mother would do that brings emotional hardship or involves children in divorce matters will be considered by the court.

Once the court determines custody and access schedules of the children, a child support amount is imposed. This is now statutory, and is based on the gross income of the parents. The court considers both the income of the mother and the father, and if a mother or father is earning less than their ability, the court may attribute or input income to either parent. The court also takes a look at other costs of rearing children, such as, health insurance premiums, extra-curricular activities, and it also implies a 10 percent increase where appropriate with for families with teenage children. Under the recent law, the non-custodial parent, not always the father, is now entitled to an adjustment for physical custody. That is assuming that a father has custody of the children, primary care, and the mother had visitation and was ordered to pay child support. The mother would be entitled to an adjustment, or reduction, in the amount of child support she pays for the time that the children reside with her.

Will I have to pay, or will I be able to receive alimony?
Spousal maintenance, or alimony, is basically the entitlement of one party to receive reimbursement or rehabilitative amounts of money from the other party. Typically, it is granted in cases when one party is a high bread-winner. For example, an accountant husband who earns a 6-figure income, and a wife/mother who perhaps works 20-30 hours a week earning $7.00-$8.00 an hour. If the marriage has been a marriage of long duration, and if other elements are met, then the wife can, and will most likely, be successful in making a claim for spousal maintenance. However, the amount of the spousal maintenance award, and the duration of the award depends on each case. At the time of this article, there are no approved guidelines or statutory formulas for calculating spousal maintenance. It is done on a case-by-case basis. Certainly if both husband and wife have equal or near equal earning ability, both are healthy, and both have similar earning ability in the marketplace, the court would most likely not award spousal maintenance. The spousal maintenance award would terminate upon remarriage of the payee. In other words, if the husband is paying his ex-wife spousal maintenance, the award was for a period of 4 years, and the wife remarries after 2 years, then the former husband would be relieved of any further obligation to pay spousal maintenance.

After the date of service, one cannot be divorced any sooner than 64 days in Arizona. If, after 64 days, there has been proper service and the parties agree on all the issues in the divorce, the divorce can be granted through a Consent Decree. This means that the couple does not need to go to court to finalize the divorce. If the divorce is not amicable, and one party contests any of the issues in the divorce, then it becomes a contested divorce and could take as long as 12 to 18 months depending on how great the acrimony is or the amount of complexities involved in the case. Cases that involve valuations of businesses, calculation of pensions and profit sharing, stock options, appraisals of real and/or personal property, and calculations of earning ability and entitlement to spousal maintenance increase the length of time it takes to get a divorce.

If the parties choose not to file on their own, and wish to be represented by an attorney, one lawyer cannot represent both individuals in the divorce. That does not mean that both parties need an attorney; however, most spouses feel that once their husband or wife gets an attorney, than they also need an attorney.

Can I file for divorce on my own without hiring a lawyer?
Yes, people can file for divorce without an attorney. Now, the parties can obtain off the Internet a do-it-yourself divorce packet online. You can also go to the Self-Help Service Center at the Maricopa County Superior Court and pick-up, for a nominal fee, a divorce packet. All parties, unless financially qualified, must pay a filing fee to the Superior Court.