Gilbert Arizona Attorney, Lawrence B. Slater

 Most cases result in joint legal custody, also described as "shared custody," with one parent being designated as the primary residential parent.  Lately, many have resulted in 50-50 access arrangements, although most result in one parent having more parenting time than the other.  A visiting parent usually gets at least alternating weekends during the school year; at least one week day evening each week; alternating holidays; and a few weeks or uninterrupted vacation time, usually over the summer.

 Some cases result in sole custody, depending on the circumstances.

 Sometimes, grandparents have rights of visitation.

 Sometimes, step parents and other adults have rights of visitation.

 Sometimes, after changes in circumstances, orders for custody and access need to be modified.

 All of these circumstances are discussed in much more detail in our page on Child Custody.

 OBLIGATION TO PAY CHILD SUPPORT

 All parents are obligated to support their children. The amount of support is calculated under the Arizona Child Support Guidelines. the calculation is based on Gross Monthly Income of each parent; monthly cost of medical insurance for the children; monthly cost for day care of the children; and the number of days of visitations per year for the non-custodial parent. There are adjustments for other children, not common to the parties; payment of Alimony or Spousal Maintenance; for children age 12 or over; and other things.

 CALCULATION OF SUPPORT 

 We calculate the monthly payment obligation for the non-custodial parent. In the calculation, we reach a relative percentage of responsibility, based on the relative gross incomes of the parties. Using this percentage, we assign the percentages of responsibility for un-insured medical expenses for the children; and we allocate the income tax exemptions for the children. For a parent to claim an income tax exemption for a particular year, he or she must be current on his child support obligation for that year.

 PAYMENT OF SUPPORT

 It is mandatory that support be paid through the Child Support Clearinghouse, which maintains the official record of all payments. Any payments made outside the Clearinghouse may be deemed a "gift," unless the receiving party acknowledges it by an affidavit that is filed with the Court. The obligation to pay support continues until a child turns age 18, but continues if they are actually attending High School, but not past age 19 (unless they are mentally handicapped).

 MODIFICATION OF SUPPORT

 The obligation to pay support can be modified if there is a substantial and continuing change in circumstances. Short term changes usually do not count. If you are out of work for a few months, you probably cannot get a modification. Even if your income is reduced, this does not guarantee a modification if your "capability" to earn is not changed. If you quit and take a lower paying job so your child support can get reduced, the judge can "attribute" income to you, even if you are not earning the money!

 If one child turns 18 and finishes High School, the obligation to pay support is NOT automatically reduced; you need to be sure to file with the Court for modification!  There is no "retroactive modification of support." So, even if you have the right to modify support, if you delay filing with the Court, the modification will not take place until the papers are filed and served on the other party. You should be aware of the consequences if you snooze. There are various procedures to modify support, including "Simplified Modification." You should ask the attorney which procedure is best for you.

 COMMUNITY PROPERTY AND DEBTS 

 Arizona is a community property state.  Generally, all property and debts that accumulate during the marriage are divided approximately 50-50. Retirement accounts that accumulated during the marriage are usually considered as community property. We usually try to split up the property so the parties get approximately equal amounts. If necessary, there may be an offset payment to equalize the distribution.  Property almost never gets sold in a divorce.  The ultimate division of your property and debts depends on your circumstances.

 SOLE AND SEPARATE PROPERTY AND DEBTS

 Sole and separate property is property you brought into the marriage, or that was acquired during the marriage by gift or inheritance. Retirement accounts that accumulated prior to the marriage are considered as separate property. A Wife's jewelry is usually considered as property received by "gift." Property received at the wedding is usually considered as a gift to both spouses. If there is a property dispute in court, all property is "presumed" by the judge to be community property, and you must prove your claim to separate property by "clear and convincing evidence." If you had separate property, and commingled it with community property, you probably can't prove the separate property claim. If you brought a house into the marriage and put the title in both names, the judge presumes you intended to gift half of it to your spouse.  If you kept your separate property in your name throughout the marriage and never commingled it, you have a good chance to prove the property claim. Of course, the strength of your particular claim depends on the circumstances.

 A case starts with a party filing a petition for Divorce. The papers must be served by a process server or by the party signing an affidavit of acceptance of service.  The marital community terminates on the day the responding party is served.

 There is no real advantage to being a Petitioner or a Respondent in a divorce. Arizona has a no-fault divorce law. Parties can be divorced for any reason; good reason, bad reason, or no reason; and the outcome is determined without regard to fault for what led to the end of the marriage.  The only small exception regarding fault is that a spouse can be liable for "waste" if they wrongfully wasted valuable assets of the community.

 UNCONTESTED DIVORCE

 In an uncontested case, the Responding spouse can fail or refuse to respond to the Petition for Divorce, and the marriage can be ended by default. This case must end with a default hearing in the court. The parties can also make an agreement for settlement of their case, and they can draw up and sign a Consent Decree.  This Decree can be filed with the court (at least 60 days after the papers are served), and the judge can grant the divorce without a hearing and without the parties having to appear in court.  Most people prefer this procedure if they resolve their divorce by settlement.

 CONTESTED DIVORCE

 In a contested case, the most frequent dispute is over custody or access for the child or children.  There are many disputes over property (and sometimes debts), and also sometimes over support for the children or the spouse.  In these cases, there is much additional work to be done. The parties must make disclosures on all sorts of issues related to the dispute. We usually need to look at tax returns, pay stubs, account statements, property deeds and titles, and many other documents.

 TEMPORARY ORDERS

 Many cases that don't settle right away have hearings on temporary orders. These are orders that are in effect while the case is pending.  As a case can be pending for a year or more, this may be important to gain control over issues such as residence in the communithy house; child custody and access time; support for the children of the spouse; possession of cars; payment of bills; and many other marital issues that need to be under control while the case is pending.  As you can imagine, many cases are resolved shortly after the temporary orders are addressed.

 TRIAL

 When all else fails, your case may be resolved in a trial. This requires prior disclosure of all witnesses and exhibits.  A joint pretrial statement must be filed where each party states their positions on the disputed issues. The parties must be mindful that the judge can order one side to pay some or all of the attorney fees of the other, depending on the relative incomes and resources of the parties, and the reasonableness of the positions they take in court.

 MODIFICATION OF ORDERS

 Orders for custody and child support can be modified if there is a substantial and continuing change in circumstances. A "continuing" change for child support modification means you need more than a month or two of lost work. You need a long-term change.  For modification of custody, you usually have to wait at least one year after a court ruling, unless the health and safety of the child is in danger. 

 A legal separation is almost the same as a divorce.  The Decree of Legal Separation provides for custody and support of the children; dissolution of the marital community and division of the community property and debts; provisions for spousal support (if any); and possibly a provision for contribution to attorney fees. The only thing that remains is the status of the parties being married.

 Legal Separations are rarely done.  Some people want them for health insurance, so they can remain on the spouse's health insurance. Others want it for religious reasons.

 After a Legal Separation, either party can file to dissolve the marriage at any time.  This will be necessary if someone wants to remarry.