Divorce and Family Law Attorney

The Nuts and Bolts of
Arizona Divorce and Family Law

Five out of ten marriages in Maricopa County end in divorce. This is shocking and staggering. Divorce usually brings heartache, financial ruin and depression for those involved. And when children are involved, they suffer as well, if not more.

Most people entering into the bonds of matrimony expect and believe that their marriage will last forever. Unfortunately, through the passage of time, through lack of commitment, addictions, infidelity, selfishness and many other reasons many couples decide to end their marriage.

Some of the typical first questions asked when a husband or wife is divorce are:

• What happens to the children?
• How much money do I have to pay, or how much money will I receive?
• What property or assets do I get to keep, or do I give up?
• Do I have to pay spousal maintenance, or will I receive spousal maintenance?
• How long does it take to get a divorce?
• Do both spouses need their own lawyer?
• Can we file on our own without a lawyer?
• How much will it cost me if I hire a lawyer?
• What happens to my business?

The answers to these questions depend, of course, on each case. A general answer to most of these questions are yes, people can and do file for divorce on their own. 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 a free divorce packet. Both parties, unless financially destitute, must pay a filing fee to the Court.

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

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 is who makes the legal decisions for the children – that is educational, medical and religious decisions. Physical custody is generally where the children reside. Legal custody can be shared, or one parent can have legal custody.

Physical custody can also be shared. The superior court does not have a statutory preference for physical access. It is hoped that the parents will make an access schedule that benefits both of the parents and the children if the parents cannot agree on an appropriate access schedule however then the court can intervene. To assist the court, the legislature has now imposed a requirement that both 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, in that the parents attend a session with a counselor in an attempt to work out a parenting plan.

In extreme cases, the court can also order a private custody evaluation. In this situation, the court normally would appoint a psychologist from 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 eight week custody evaluation. In the custody evaluation, the psychologist interviews each parent individually and the children. The psychologist also observes the children with each parent, and will also talk to “collaterals” – is other people that may shed light upon the case, such as in-laws, extended family, counselors and Case Workers.

In determining legal and physical custody, the court always considers any acts of domestic violence. If they are significant and ongoing, or a history of domestic violence, the court gives it significant weight in determining who should get custody of the children. The court also considers the behavior of the parents, including alcohol and, drug abuse and many other factors.

Some clients often ask if an extra-marital affair is considered by the court to determine 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 causes emotional hardship, or involves children in divorce matters, will be considered by the court. If a parent makes bad decisions that detriment a child, the court will consider that misconduct.

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. To determine the amount, the court considers both the income of the mother and the father. If a father or mother is earning less than his or her ability, the court may attribute additional income to that parent. The court also considers other costs of rearing children – health insurance premiums, child care costs, extra-curricular activities-and also applies a ten percent increase per child 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 assumes 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. Again, this is a statutory amount based on the number of days. Therefore, in many new joint legal and joint physical custody arrangements each parent has custody, the non-primary care parent who spends significant amount of time with his/her children, gets a substantial reduction in what he/she pays in child support to his/her ex-spouse.

How long does divorce take in Arizona? First, the “clock does not begin to run” until the non-filing spouse is served with the proper legal documents. “Service of process” can be done either by a paid process server or by that spouse signing a waiver, which is then filed. After service of process if completed, one cannot be divorced any sooner than sixty days. If after sixty days after proper service, spouses agree on all the issues, the divorce can be granted through a Consent Decree. In a Consent Decree, neither of the parents goes to court to finalize the divorce. If the divorce is not amicable, and one party contests any of the issues, then it could take as long as twelve to eighteen months, depending on the level of acrimony or complexities involved. Cases that involve valuations of family 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.

Spousal maintenance (“formerly alimony”) is basically the entitlement of one spouse to receive reimbursement or rehabilitative amounts of money from the other party. Typically, it is granted in cases with a high wage earner, such as an accountant husband who earns a six figure income, and a wife/mother who left the work force to raise the children or perhaps works part-time earning $7.00-$8.00 an hour. If the marriage has been of long duration, and if other elements are met, then that wife can and will most likely be successful in a claim for spousal maintenance. 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 you had a situation where both husband and wife have equal or near equal earning ability, both are healthy, 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 for a period of four years, and the wife remarries after two years, then the former husband would be relieved of any further obligation to pay spousal maintenance.

General Tips in Divorce and Family Law Cases

If you are contemplating a divorce, I recommend the following: talk to a counselor, someone experienced and educated in the field of mental health and family issues. Attempt to work through your marital problems through counseling and try to save the marriage. This often can be done free of charge through church organizations and family services. In addition, some insurance plans provide counseling services as part of their insurance benefit. If counseling is not successful, the husband and wife should attempt to communicate between themselves as best as possible, expressing their concerns and feelings. Parents should never involve children in divorce matters. Parents should not try to pit the children one against the other. Parents should at all costs avoid at all costs the devastating effects of parental alienation syndrome. If parents are unable to resolve their differences through personal communication, through counseling and social service organizations, and they feel like a divorce is imminent, they should individually contact an attorney for an initial consultation. Most attorneys will provide an initial consultation for less than their standard hourly rates. Some provide consultations free of charge, and others charge up to $100 for that consultation. In order to select an attorney, referrals from family friends or co-workers is the most popular and common way of finding an attorney. You can also contact the state bar or look in a Martindale Hubbell directory. Also, the yellow pages provide a directory of attorneys, and now, via the internet, many attorneys can be found online.

When you consult an attorney for the first time, be prepared to provide basic information. It is sometimes helpful to gather copies of financial documents about which you may have questions, such as the deed to your home, deed to other real property, copies of the last two (2) years’ tax returns and financial statements that you may have completed. In the initial consultation with your attorney, you should determine whether the chemistry is right. Determine whether or not the attorney is the type of person that you would feel comfortable with over the next twelve to eighteen months representing you. Determine exactly what the fees are. The attorney should be able to explain to you all aspects of the divorce from beginning to end, how much he/she charges at an hourly rate, whether or not the client pays for costs and what those costs are. Some attorneys bill at a flat fee. The norm is however to be billed on an hourly basis. Divorce attorneys do not bill on a percentage of the estate or the outcome of the case. Typically, attorneys will bill at an hourly rate, and those hourly rates differ from firm to firm. Generally, anywhere from $100 up to $400 per hour, and paralegals bill anywhere from no bill for paralegal time up to $150 per hour for paralegal time. Your attorney should be candid with you and anything you discuss with your attorney is covered under the attorney-client privilege. It is very important that you are open and honest with your attorney. What you tell your attorney is confidential and protected from disclosure later, even if you choose not to retain your attorney. Most attorneys, after the initial consultation will present the client with enough information to determine if now is the time to approach the divorce or if it’s better to wait. Generally, I recommend that a client not necessarily commit that date to that attorney. It never hurts to go home and think about what was discussed, contemplate and feel comfortable with the attorney, and make sure that this person is right for you.

Generally, an attorney will present the client with a Fee Agreement. Attorneys are required to have a written Fee Agreement in family law cases. In other words, if you retain an attorney, he/she will ask you to sign an Agreement, which is a contract that says you agree to pay a certain amount of money, usually an hourly rate, for the services that the attorney and/or his office provides. The attorney would sign that, as well as the client. Attorneys then ask for a retainer, or a “last months rent” as security that the bill will be paid. Most attorneys then bill on a monthly or some periodic interval each month for the work that they do on the case. You should receive a monthly or periodic bill in writing in detail, you need to contact your attorney immediately. If you still don’t receive an itemized billing, then you might want to consider changing attorneys. There should be no secrets on the bill, and there should be no hidden costs. If you have questions, your attorney should, free of charge, discuss the bill with you at any time. As your attorney bills on your case, he/she will draw down or pull money out of the retainer to cover the expenses or fees for that month. Typically, the client will reimburse or put back into retainer money each month to make sure that there is a sufficient amount of retainer to cover immediate costs and fees on the case.

During the divorce process, Arizona law contemplates that the assets and liabilities of the community will be equitably divided. In other words, the husband and wife who have been married for 15 years, and they have purchased a home, and they have been making payments on the home, they own a couple of automobiles, they have a retirement plan at work, perhaps some stock or stock options, a savings account, furniture, personal property, jewelry, and some heirlooms, the parties should sit down and attempt to divide that as equally as possible. Items that were brought into the marriage, such as inheritances or gifts generally remain the sole and separate property of the party that brought it into the marriage. Just as the parties divide assets, they also divide liabilities, and to the extent they incurred during the marriage they constitute a community debt. In other words, both parties owe that amount of money. Arizona law allows an equitable division of assets and liabilities. For example, a husband could take $15,000 in consumer debt, and have the automobile awarded to him that has an equity value of $15,000. The court would consider that those two items are a wash, and that was a fair and equitable distribution. If the parties can’t agree on valuations, than appraisers are brought in. Generally, appraisals are expensive, depending on the nature of property to be apprised. There are real property appraisers, personal property appraisers, business appraisers, jewelry appraisers, etc. Obviously, the more appraisers that are retained in a case, the higher the cost.

Try to make your marriage work. The grass is not always greener on the other side. Love your spouse and try to make it work. If for some reason you are unable to do so, get help through a professional mental health counselor, church or social agency. If divorce is inevitable, contact an attorney and make sure you are comfortable with that attorney before you retain him/her. Next, gather as much information as you can. Do not involve the children in the divorce. Be fair to your spouse – try to work things out. Judges do not love your children, judges do not know the value of your assets. Do not leave the outcome of your case to a judge to determine what is fair. The more you can work out between yourselves, the better settlement you will usually have. If one party is taking advantage of another party, then litigation may be necessary, and competent attorneys hired to make sure that neither party gets an unfair advantage.

If you have any questions about divorce and family law please contact Rowley Chapman Barney & Buntrock at (480) 833-1113 and ask for Paul S. Rowley.