The Divorce Process
Options for Your Divorce:
Many people think of only 2 options when they consider how to get divorced: either with an attorney or without an attorney (by yourself, pro per). In this day and age, more and more people cannot afford large advanced fees to pay for an attorney. Yet many people still need some kind of legal help, short of retaining an attorney from beginning to end. Family law rules and procedures can be complicated so there are myriad costly mistakes that can be made, some of which you may not even realize for one or two years after your divorce. Worst of all, how can you possibly know just what you do not know? Maricopa County has some valuable tools to use on their web site but you still may not understand the whole process or procedure. Best Law Firm offers alternatives to help people because we understand the need. Court staff and judges do a great job but they are often overwhelmed and they are not allowed to give you legal advice. So you need to read this book, become familiar with the process, and recognize what additional help you may require. There are actually many options available to you, depending on your circumstances and finances. Here are some of your options, listed from least expensive to most:
1. Complete Do It Yourself: get the forms from the self help desk at the courthouse or from the court website (see Resource Guide on this site)
2. Legal Consultation: Pay an attorney by the hour to give you specific legal advice on your issues, and then draft your own documents.
3. Attorney Document Preparation: Pay Best Law Firm to draft your documents on a flat fee basis which includes one FREE attorney consultation, up to one hour.
4. Attorney Document Preparation and Legal Consultation: combine #2 and #3 for flat fees of document preparation and hourly fees for consultation.
5. Pay for an attorney anytime during the process: when you need some help, such as at a court hearing or when you need an attorney to be your advocate in mediation.
6. Hire an attorney you can pay by the hour as a third party neutral mediator to get you and your spouse over any impasse in making agreements.
7. Retain an attorney: pay them an advanced fee (used to be called a retainer), and they will bill you by the hour from beginning to end.
Clearly, the most expensive option is the last, which is to retain an attorney to handle everything for you. Your attorney will charge you an advance fee anywhere from $2500 to $10,000 or more. Moreover, sometimes it seems as if retained counsel are trained to prepare for court and fight every step of the way, rather than sorting things out without going to trial. That is usually not a good idea for you because it can increase the stress and the cost. The average cost of a divorce can be $18,000 for each side. So, unless you have money to burn, you might consider other options.
Following are two charts that outline the divorce process. The first exemplifies the typical process when both parties have an attorney. The second demonstrates the stages of litigation when the parties work together for their divorce.
Litigation Process when Both Parties have Attorneys
Litigation Process when the Parties Work Together during their Divorce
You can see the importance of educating yourself about the process; learning is a good first step. You may then want to hire a mediator to help resolve and negotiate all issues. Or, at the end of a mediation, you can hire an attorney by the hour to give you specific legal advice about the negotiated agreement, before you actually sign it. A third option is to pay for legal consultations by the hour. An experienced attorney will give you specific legal advice about your case. After a legal consultation, you can also have an attorney draft your documents for a flat fee. Best Law offers all of these services.
The main point for you to understand is that there are ways to go through this process, with an attorney and with mediation, without losing all your hard earned money and suffering untold stress. Obviously, you will want to be empowered with knowledge to help you with this transition in your life.
Arizona Family Law Courts
Family law courts are courts of equity. This means that the judges are asked to make decisions based on fairness. Arizona family law courts are governed by Arizona Statutes (in Section 25, Marriage and Domestic Relations), by the Family Law Rules of Procedure and by the case law that has interpreted these statutes and rules. (Case law is what a court of appeals or the Arizona Supreme Court has determined is the actual meaning of the rules or statutes). Sometimes you will read a statute and think you know exactly what it means but in reality a court has decided another interpretation. To fully know and understand your rights, you would need to know all of the above. Luckily, most cases and most divorces are not that complicated and the parties do not need an in-depth legal analysis. But just so you are armed with complete knowledge, if you find your case in a grey area and you do not know the answer, that is the time to consider consulting with an experienced attorney. If your question is straight forward, remember that hourly consultations are much cheaper than retainer fees.
And, since family law courts are courts of equity, there are no juries. Although you may find a jury box in your family law courtroom, the judge alone will make all decisions in your case if there are disputed issues that must be litigated (brought to trial). However, there are ways to handle your entire divorce without ever having to set foot into a courtroom. You and your spouse can make all the decisions instead of a judge.
Overview of Arizona Law
Arizona is one of nine community property states in the U.S. All property acquired during marriage until the time one party is served with the divorce paperwork is presumed to be community property. All property acquired before marriage or after service of the dissolution paperwork is presumed to be separate property. All property acquired by gift, devise or will during marriage is also presumed to be separate property. It is important that you familiarize yourself with Arizona community property law as you start this process. Knowledge of the law will take out the guesswork as to what each spouse is entitled to. Most, if not all of your property obtained during your marriage will be considered community.
The “petition” is what is filed to start the divorce and “service” is the official way that the other side is notified that the petition has been filed. The other side is called the “Respondent.” Service is discussed more fully in Chapter Four and terms defined in the glossary.
Community Property
Once property is considered community property, it must be divided equally between the spouses. That is why it is important to determine the characterization of the property at the beginning of the divorce. There may be arguments about whether property is community or not, but most property is fairly easy to characterize. Property includes real property, which is land or a house. Property also includes your furniture, bank accounts, savings account, investments, deferred compensation plans such as 401Ks or IRAs. Property for division, however, does not include social security. Social security law governs your social security account and it cannot be changed in a divorce decree. If you want to know your specific information about your social security, you might want to contact the Social Security Administration to find out about your specific income. Most property disputes revolve around houses. For some reason, many couples have complicated facts about when and how a house was purchased and whose name is on the deed. It is important that you know if your name is on your house deed. You can check that out on the internet courtesy of the Maricopa County Recorder’s Office, http://www.recorder.maricopa.gov/.
Commingling of Funds
Another problem area is the commingling of funds. For instance, if you received an inheritance during the marriage, the question becomes whether it is your sole and separate property. What if you put it in the bank and added your spouse’s name to it? Is it automatically community property? The short answer is probably not, but these kinds of complications are beyond the scope of this book and can be better answered with more facts and an attorney’s advice. But remember, parties are always free to make their own decisions, without regard to what a judge would decide. For example, if you and your spouse decide that the money was and should be yours, you can make that agreement and the court will not disturb it. The exception to that rule is if there are children. Even if there are agreements about the children, especially with regard to child support, the court will look very carefully at any agreement and proposed child support for the children to make sure that it is fair for the kids. Do not let this scare you, most agreements are approved by the court since most negotiated agreements are fair for the children and the family.
Separation or Divorce?
A common question spouses have is whether they should get a legal separation instead of a divorce. The answer depends on what you are trying to achieve. If you want some financial protection or you want to continue your health insurance, a legal separation will accomplish both. If you want to get remarried, obviously you need to get divorced. A legal separation is almost identical to a divorce, except that in the end, you are separated, not divorced. The procedures are identical in terms of filing, costs, and the final agreements. Financial agreements in a legal separation will become the same financial agreements in a divorce. In other words, you cannot make a decision regarding finances in a legal separation and then change your mind about the same issues in a divorce. So, the financial agreements (or court decisions) cannot be changed in a subsequent divorce action. Again, children are an exception to this general rule. You and your spouse can make certain decisions and agreements for a legal separation concerning children and you are then free to re-negotiate or litigate those decisions in a subsequent divorce. Be advised that there is some duplication if a legal separation turns into subsequent divorce.
If the person who filed for a legal separation decides that he or she prefers a divorce, then that spouse will have to re-file the paperwork and pay a new filing fee for the dissolution. On the other hand, if one spouse files for a legal separation, the responsive party can convert the legal separation into a divorce, by their responsive pleading (answer) without the consent of the party who filed first and without paying additional filing fees. (They must still pay the answer fee.) Just do not be lulled into thinking you are getting separated when in fact your action may cause your partner to convert your separation filing into a divorce. And, if either party wants a divorce, there is nothing you can legally do to stop it.
Children and Custody
Here is a brief overview of custody with more to come in later chapters. Custody might be easier to understand if you think of two kinds of custody for children: legal and physical. “Legal” refers to who makes decisions and “physical” refers to where the kids live and how they “visit” their parents. Do not be confused by some of the court forms; “joint legal custody” has nothing to do with where the kids live and how they visit. You will need to determine how you and your spouse share decision-making, where the kids live at what times, how to split holidays, and who pays what for the children. These details are in Chapter Four, but rest assured: these details can be worked out with parenting plans and honest discussions between the parents, always keeping the needs of your children paramount in your negotiations. There are as many parenting plans as there are families; you can be creative about what works for your family, remembering that a good spirit and flexibility will ensure that your children do not become the collateral damage of your divorce.
In 2001 Maricopa County drafted Model Parenting Guidelines that are very useful.
The Court re-drafted new Parenting Guidelines but they are not quite as helpful since they omit all information about the developmental stages of children and how that interplays with their parenting schedules.
Joint Legal Custody
First, who makes major decisions for the children regarding their health, religion and education? Arizona law reads: “joint legal custody means the condition under which both parents share legal custody and neither parent’s rights are superior, except with respect to specified decisions as set forth by the court or the parents in the final judgment or order.”
Sole Legal Custody
Sole legal custody means that one parent can make all the legal decisions for the child, without the consent of the other parent. Some legal custody arrangements require the sole legal parent to consult with the other parent before decisions are made but the sole legal parent can ultimately do what s/he thinks is in the best interest of the children. Courts generally will consider awarding sole physical custody to one parent if the other parent is deemed unfit — for example, because of alcohol or drug dependency, a new partner who is unfit, or charges of child abuse or neglect. If this is your situation, you should consider seeking the advice of an attorney.
Joint Physical Custody and Primary Physical Custody
Joint physical custody means that the physical residence of the child is shared by the parents in a manner that assures that the child has substantially equal contact with both parents. The actual schedules that carry out this plan can vary with each family. Primary physical custody means that a parent has the child more than 50% of the time. When the child already lives primarily with one parent and has visitation with the other, generally the parent with whom the child primarily lives will have primary physical custody, with visitation to the other parent. Joint physical custody is not always a good idea, especially when the child is an infant or toddler. You can also decide to have a graduated parenting schedule if you have very small children at the time of your divorce. That allows the schedule to take into consideration a growing child’s changing needs.
Joint physical custody works best if parents live relatively near to each other, as it lessens the stress on children and allows them to maintain a somewhat normal routine. Joint custody has the advantages of assuring the children continuing contact and involvement with both parents. Also it alleviates some of the burdens of parenting for each parent. There are, of course, disadvantages, which include shuttling children around, serious negative effects on children if there is parental noncooperation or ill will, and the expense of maintaining two homes for the children. Nonetheless, joint physical custody might be the best option for the children when both parents are in agreement and want to parent cooperatively.
Parenting Time
Parenting time is the scheduled time the parents are with their child. A variety of parenting time schedules can be set up by a family and the schedules can be as different as the families who use them. Some popular parenting time schedules include alternating weeks, or spending weekends and holidays with one parent, while spending weekdays with the other.
Custody Thoughts
Do not let your children become your personal battleground. Repeat: do not do this to your children. If you and your spouse are good parents, everything can be worked out. These admonishments do not apply to the parents who find themselves in the ugly predicament dealing with domestic violence, child abuse, drug abuse or mental disorders. Those parents may need to fight to protect their children. These comments are not directed to those tragic situations. Contact an experienced family law attorney if you have any questions.
Spousal Maintenance
Spousal maintenance was formerly called alimony. There seem to be more misconceptions about spousal maintenance than almost any other area of divorce. You may have heard that you will get spousal maintenance because your spouse makes more money but It is not that simple. Spousal maintenance can be highly discretionary depending on the Judge. In fact, it is often a mystery as to how spousal maintenance has been determined, seemingly very dependent on the court. There is a statute to follow but it is very factual and case specific dependent. That may be why it is hard to pin point rules and outcomes with any certainty. Spousal maintenance is most common in long term marriages of 20 years or more where one spouse has been a stay-at-home parent who never worked outside the home and has limited job skills and prospects compared to the working spouse.
Specifically, the court first determines any one of the following: the spouse lacks sufficient property to provide for reasonable needs, the spouse is unable to be self-sufficient through appropriate employment (that is, “who takes care of whom” if age or condition precludes the spouse from working), the spouse contributed to the education of the other, or the marriage was of long duration and the spouse may be too old to be employed and self-sufficient. Once the court determines that any of these factors are met, there are 13 other factors that the court may use in order to determine how much and how long maintenance should be paid. Even though there are 13 factors, oftentimes the court and the attorneys use a “spousal maintenance guideline” calculation. We share this calculation with you, in Chapter Seven. While not a set rule, these guidelines are a starting point for negotiations. If you go to court on this issue, the outcome is anyone’s guess.
DIVORCE FREQUENTLY ASKED QUESTIONS
How long will it take to get a divorce?
According to Arizona Revised Statute, section 25-329 and Arizona Rules of Civil Procedure 4.1(c), you must wait at least 60 days from the date your spouse was served before going to Court and having the Decree of Dissolution of Marriage entered. This assumes you and your spouse have agreed on the terms or your spouse is in default. When the spouses cannot agree on how to settle issues such as assets and debts, the length of time to get divorced can be longer. If you litigate the issues, it can take up to a year.
How much does it cost to file for divorce in Maricopa County?
The Petitioner (initiator of the divorce) must pay Maricopa County $321.00 as of March, 2010 and the Respondent pays $256.00 for filing an answer.
Who actually divorces me?
The divorce decree will be from the Judge or Commissioner assigned to your case who works for the Superior Court of Maricopa County, which is a state court.
Where do I file for my divorce?
There are currently four courthouse locations in Maricopa County, which are located Downtown, Northeast, Northwest and Southeast (see resource guide for other county courthouses). Maricopa County location include:
Central Court Building 201 W. Jefferson, Phoenix, 85003-2243
Family Court Administration: (602) 506-1561
Old Courthouse 125 W. Washington, Phoenix, 85003-2243
Family Court Administration: (602) 506-1561
Northeast Courthouse 18380 N. 40th Street, Phoenix, 85032
(602) 372-7601
Southwest Regional Center 4264 W. Tierra Buena Lane, Surprise, 85374
(602) 372-9400
Southeast Court 222 E. Javelina Ave., Mesa, 85210
(602) 506-2020
You can file your documents at any courthouse but the Judge assigned to your case will most likely work in the courthouse closest to the home address of the Petitioner (the person who files first).
Can my spouse and I file for divorce together?
No, Arizona does not have a provision for any type of joint filing.
Am I considered the “bad guy” if I file first?
Someone has to be the Petitioner and someone has to be the Respondent. There is no advantage or disadvantage to either (other than perhaps assignment of the courthouse nearest to the Petitioner).
What if my spouse filed and I do not want to get divorced?
You cannot stop your spouse from divorcing you but you can file a request with the court to order a one hour conciliation meeting to try and reconcile. These rules change, depending on the budget, there may be a fee associated with reconciliation. During this “time out” for 60 days, there can be no “discovery” (see glossary) taking place.
Do I need an attorney for my divorce?
Arizona law allows you to do this yourself. You are considered pro se or pro per; you must follow all the same rules as parties with attorneys. You may have to go into a courtroom but you are held to the standard of an attorney. Maricopa County has a self help web site at:
http://www.superiorcourt.maricopa.gov/SuperiorCourt/Self-ServiceCenter/index.asp.
Even if you do this yourself, it is always a good idea to have an attorney review your work and give you some legal advice.
Does it matter if my spouse was having an affair?
No, Arizona is a “no-fault state,” which means that the court does not require that one spouse prove blame or responsibility in order to end the marriage. However, in Covenant Marriage (see below), a court will not enter a decree of dissolution of marriage unless certain criteria are met. (See Arizona Revised Statute, Section 25-903 for the specific requirements).
What is a Covenant Marriage?
You will most likely know if you have one of these; it is an optional type of marriage created by the state legislature that requires partners to complete marital counseling prior to marrying and to sign a special declaration to obtain a marriage license. In a covenant marriage, a legal separation or divorce may be granted only for certain reasons listed in state law. The law regarding covenant marriages can be found in Sections 25-901 through 25-906 of the Arizona Revised Statutes.
Is it possible to represent myself in court?
Yes, as it is not a requirement that you have an attorney to represent you in divorce proceedings. However, the same rules and procedures apply whether you have an attorney or not, which means all papers must be correctly completed and filed on time.
What if I change my mind after starting a divorce?
If you and your spouse decide to stay married, the divorce case can be canceled or “dismissed” by filing a request with the Clerk of Superior Court and signed by both parties.
What is a divorce “Decree?”
Arizona Revised Statutes §25-312 and §35-325 provide that A Decree of Dissolution of Marriage is the final order of the Court which makes each party a single person again, and includes separate orders concerning child custody and visitation, child support, division of property and debts, spousal maintenance and any other appropriate orders. The Decree is the final order of the court legally ending the marriage. Spouses are not “divorced” until the court grants the divorce and the Decree is signed by the judge. A Decree of Dissolution is a court order and can be enforced just as any other order of the Court. A certified or duplicate copy of the Decree can be obtained from the Clerk of Superior Court for a small fee.
Where do I get a divorce?
In Arizona, only the Superior Court can grant a divorce. To get a divorce, one spouse must start a court case in the Superior Court. Although the Superior Court has a facility in each Arizona County, a court case to end a marriage must be started in the county where the person requesting the divorce lives.
Who can start a divorce case?
In Arizona, either spouse can ask the court for a divorce. A divorce is not awarded to either spouse; rather, it simply changes the status of the marriage relationship.
What if I do not have money to pay the filing or response fee?
You may request that the Court waive or postpone payment of the filing or response fees. Forms must be completed and signed by you and submitted to the Court. The forms are free of charge and are available in the office of the Clerk of Superior Court.
When is my dissolution final? (A.R.S. §25-325)
A dissolution of marriage is final after the judge or commissioner takes testimony, signs the Decree and files it with the Clerk of the Court.
Will I have a jury if my divorce proceeds to trial?
No, if your case is litigated, you will not have a jury. One judge will make all the decisions that the parties cannot agree on.
When can we start mediation?
You can start this at anytime, even before you file.
I cannot afford health insurance. If I file for divorce, can my husband stop paying for it while we are in the divorce proceedings?
No. After one spouse is served with the dissolution or legal separation documents, no insurance of any kind can be cancelled or modified to the detriment of the other spouse.