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Frequently Asked Questions
Marriage Questions
Should I sign a prenuptial agreement?
I don't know. The decision to sign a prenuptial agreement is an important one. Each party to a prenuptial agreement should have an attorney of their own choice and should insist on receiving full and complete disclosure of the other party's assets and liabilities before they sign a prenuptial agreement.
Should I get divorced?
I don't know. Generally, we will not advise you if you should get a divorce. This is an intensely personal decision that should be made after much thought and careful consideration. I usually tell people that they should be as sure about getting a divorce as they were about getting married. In many cases, it is important that you be even surer of this decision. While it may be important to consider the opinion of family members and friends, mental health professionals or spiritual advisors, in the end it is a personal decision that should be made voluntarily.
I encourage all of my clients to ensure that they have made every good faith effort to stay married before they decide to file for divorce. Many times people are too quick to dissolve a marriage that could be saved with the proper help. Believe it or not, a good family law attorney can assist you in helping to stay married if both spouses are willing.
What is a legal separation?
A legal separation requires the husband and wife to take all of the steps they would take to get a divorce except that they are still married at the end of the case. A legal separation is often sought by spouses who have been married a very long time, who are elderly, who cannot get divorced for religious reasons or who, for practical considerations like eligibility for health insurance benefits, wish to stay married but do not want the legal obligations attendant to a lawful marriage.
What is a covenant marriage?
A covenant marriage is a form of marriage that was created by the Arizona legislature in 1998 that introduces elements of fault into the marriage dissolution process.
What is a "no fault" state?
Arizona, like most states, does not require a spouse to prove that there is a "legitimate" reason to get a divorce. A spouse need only allege that they believe the marriage is irretrievably broken and that there is no reasonable prospect of reconciliation. The other spouse does not have to agree with this allegation and the judge does not have to find proof that the allegation is, in fact, true.
Child Custody and Parenting Time Questions
What is sole custody?
A parent who is awarded sole custody has the right to make major parenting decisions without the other parent's consent.
What is joint custody?
A parent who is awarded joint custody is usually required to make major parenting decisions jointly in cooperation with the other parent. There are some situations where joint legal custody only requires a parent to give, or receive, notification regarding a major parenting decision. Joint custody does not necessarily mean that each parent spends an equal amount of time with the children.
What is a primary residential parent?
The family court judge has the authority to designate one of the parents to be the "primary residential parent." Absent a specific order, this designation does not usually confer any superior decision making authority but, rather, generally is only relevant to determining a parent's eligibility for public assistance.
How does the judge decide which parent should have custody or how much time a parent will spend with a child?
Arizona law requires the judge to consider the following factors when deciding custody and parenting time (visitation) issues:
- The wishes of the child's parent or parents as to custody.
- The wishes of the child as to the custodian.
- The interaction and interrelationship of the child with the child's parent or parents, the child's siblings and any other person who may significantly affect the child's best interest.
- The child's adjustment to home, school and community.
- The mental and physical health of all individuals involved.
- Which parent is more likely to allow the child frequent and meaningful continuing contact with the other parent.
- Whether one parent, both parents or neither parent has provided primary care of the child.
- The nature and extent of coercion or duress used by a parent in obtaining an agreement regarding custody.
- Whether a parent has taken a Parent Information Class.
- Whether either parent was convicted of an act of false reporting of child abuse or neglect under section 13-2907.02.
Is there a presumption in favor of one parent?
No. The judge cannot award custody to a parent simply because of their gender, sexual orientation, race or religion.
Is there a presumption in favor of joint custody?
No. Arizona law does not prefer joint custody over sole custody. However, it is my experience that most judges, in practice, assume that intact families make major parenting decisions jointly and that divorce or separation, in and of itself, should not alter this arrangement.
Can the judge order joint custody even if the other parent wants sole custody?
Yes. The family court judge can order the parties to share joint custody (to make major parenting decisions jointly) over the objection of a parent if the judge considers all of the factors listed above and:
- The agreement or lack of an agreement by the parents regarding joint custody.
- Whether a parent's lack of agreement is unreasonable or is influenced by an issue not related to the best interests of the child.
- The past, present and future abilities of the parents to cooperate in decision-making about the child to the extent required by the order of joint custody.
- Whether the joint custody arrangement is logistically possible.
Are there any guidelines that the judge considers when creating a parenting time schedule?
Yes. The Arizona Model Parenting Plans can be found on their web site.
Can I keep my child from his/her parent if I don't receive child support?
No. The payment of child support and the right to have parenting time with a child are separate and distinct issues.
I am the father of a child that was born out of wedlock. Does that mean I have no rights at all?
No. A father of a child who is not married to the mother when the child is born has a fundamental right under the United States Constitution and the Arizona Constitution to be a parent. However, the father must take the initiative to establish a relationship with the child support and provide support, financial and otherwise, in order to preserve the right to parent. Generally, law enforcement officers will not assist a father to obtain possession of a child unless the father has a valid court order that establishes paternity and sets forth a specific schedule of parenting time. Many parents of children who are not married are able to cooperate and share time with a child without a court order. More often than not, however, the parents will require judicial involvement at some point in time to set forth a specific parenting time schedule.
Will my child be interviewed by the judge?
Fortunately, no. However, your child, depending on his/her age, may be interviewed by a child custody evaluator or a social worker. In extremely rare cases it may be necessary for a child to meet the judge. In those rare cases the interview is usually off the record and the child's testimony is not subject to cross examination by either parent or their attorney.
My child says he/she does not want to go with the other parent. Can I deny court ordered parenting time?
Absent legitimate concerns that a child will be at risk to suffer immediate and irreparable harm or injury, a parent is not entitled to deny a parent the right to court ordered parenting time. A parent who is in this position is well advised to immediately seek judicial involvement to modify the parenting time order and address the fitness issue to avoid being accused of custodial interference or parental alienation.
When does my child get to decide who he/she wants to live with?
It is a myth that there is a particular age that a child reaches that allows the child to decide which parent the child wants to live with. Having said that, a family court judge is required to consider the wishes of a child in deciding custody and parenting time issues. Most judges use common sense; the older the child and the more mature and sophisticated the child is, the more likely it is that the judge will give greater weight to the child's expressed wish.
When can the judge modify the child custody order?
Arizona law requires a parent to establish a substantial and continuous change of circumstances to modify a child custody order. For example, a material change in a parent or child's emotional or physical health, employment schedule, living situation or marital status that has a direct effect on major parenting decision-making is necessary. Immaterial differences in parenting style in and of themselves are not sufficient basis to modify a custody order.
When can the judge modify the parenting time schedule?
Arizona law only requires that modification of the parenting time schedule be in a child's best interest. This lesser standard, therefore, allows changes to the parenting time schedule without having to prove that there has been a substantial and continuing change of circumstances.
Can a parent avoid paying child support if the parents share parenting time equally?
Maybe. Arizona law requires the judge to calculate child support based on the incomes of the parents. The Arizona Child Support Guidelines do provide that no child support can be ordered if the parents have equal time with the child but only if the parents' incomes are substantially equal also.
Child Support Questions
How is child support calculated?
Arizona law requires the Supreme Court of Arizona to create child support guidelines which are supposed to be used by the judge. The Arizona Legislature required the Supreme Court to consider the following factors to establish child support guidelines:
- The financial resources and needs of the child.
- The financial resources and needs of the custodial parent.
- The standard of living the child would have enjoyed had the marriage not been dissolved.
- The physical and emotional condition of the child and the child's educational needs.
- The financial resources and needs of the noncustodial parent.
- Excessive or abnormal expenditures, destruction, concealment or fraudulent disposition of community, joint tenancy and other property held in common.
- The duration of parenting time and related expenses.
Generally, the Arizona Child Support Guidelines are created on the Income Shares Model. This theory assumes that parents should contribute to the support of their children in proportion to their incomes.
The other parent is self-employed, how do I prove his/her income?
Each parent is required to voluntarily disclose financial information including personal, corporate or partnership tax returns, pay stubs, W-2 statements, 1099's, K-1's, investment income documentation, pension information, etc. In some cases the court may appoint a federally authorized tax practitioner to provide the family court judge with a recommendation regarding a parent's income for child support purposes.
Can I make my ex-spouse prove how they use the child support?
No. The law assumes that the parent receiving child support will use the child support for the benefit of the child.
But what if I can't afford child support?
Arizona law makes the support of natural or adopted children the primary financial obligation of a parent. Therefore, the law assumes that a parent will make sacrifices in order to afford the child support amount including significant lifestyle changes.
Can we agree to use a different child support amount?
Yes. The child support guidelines permit the family court judge to deviate from the guidelines and order an amount that is less than or more than the amount that would be ordered under the guidelines if the family court judge finds that application of the child support guidelines is inappropriate or unjust and the parties voluntarily a written agreement to deviation that confirms the amount that would be ordered under the guidelines.
Will my child have medical insurance?
The family court judge can order one or both of the parents to purchase medical insurance for the minor child. The monthly premium will be included in the child support calculation to ensure that each parent pays for their proportionate share of the monthly premium.
How are uncovered medical expenses paid?
Generally, the child support guidelines require the family court judge to order the parents to pay for uncovered medical expenses in proportion to their incomes.
Who is entitled to claim my child as a dependent for tax purposes?
The family court judge can allocate the use of the children as a dependent for tax purposes in proportion to the parties' incomes. The parent who pays child support must pay all child support and any court-ordered child support arrearage payments on or before December 31 of the applicable tax year in order to use the exemption.
When does child support end?
Child support must be paid until the child turns 18, unless the child is actually attending high school when he/she turns 18, then it terminates upon the child's graduation from high school but not later than the child's 19th birthday.
My child's other parent owes me child support. Will I lose it if I don't collect it before my child turns 18?
No. Once a judgment for past child support is entered, then it is good for life. However, equitable defenses may apply to the collection of a very old judgment. Interest accrues on a child support judgment at 10% simple interest. A family court judge cannot incarcerate a parent who owes past child support if the child is over 18.
How can I collect past child support?
There are a number of ways that past child support can be collected. The primary means of collecting child support is through the use of the family court's authority to hold a parent in contempt of court and incarcerate the parent until child support is paid. Other remedies including seizure of property, cash in financial institutions and tax refunds, administrative penalties including passport holds, driver's and professional license revocations and other remedies are available.
Spousal Maintenance
What is spousal maintenance?
The origins of spousal maintenance (or "alimony" as it used to be called), as we know it in the United States, can be traced back to the ecclesiastical courts in England. Because the husband was the property owner, and the wife depended upon him to provide for her sustenance, the English ecclesiastical courts consistently ruled that the husband had the duty to provide for the wife after divorce. In modern times the policy underlying the payment of spousal maintenance is to provide the spouse seeking maintenance with financial assistance from his/her former spouse for a sufficient time to allow the spouse to become financially independent.
How is spousal maintenance determined?
The determination of a spouses' need for spousal maintenance, and the amount and duration of the award, is one of the hardest issues to predict in any family court case. Arizona law requires the judge to engage in a two-part process. First, the family court judge must consider the following factors:
- Lacks sufficient property, including property apportioned to the spouse, to provide for that spouse's reasonable needs.
- Is unable to be self-sufficient through appropriate employment or is the custodian of a child whose age or condition is such that the custodian should not be required to seek employment outside the home or lacks earning ability in the labor market adequate to be self-sufficient.
- Contributed to the educational opportunities of the other spouse.
- Had a marriage of long duration and is of an age that may preclude the possibility of gaining employment adequate to be self-sufficient.
The spouse seeking spousal maintenance is only required to prove that one of the above listed criteria is met. You should speak to a competent family law attorney if you have questions about your eligibility for, or exposure to pay, spousal maintenance.
How much spousal maintenance will be ordered and for how long?
Once a spouse seeking spousal maintenance proves one of the above-listed factors, the family court judge must consider the following factors to determine the amount and duration of spousal maintenance:
- The standard of living established during the marriage.
- The duration of the marriage.
- The age, employment history, earning ability and physical and emotional condition of the spouse seeking maintenance.
- The ability of the spouse from whom maintenance is sought to meet that spouse's needs while meeting those of the spouse seeking maintenance.
- The comparative financial resources of the spouses, including their comparative earning abilities in the labor market.
- The contribution of the spouse seeking maintenance to the earning ability of the other spouse.
- The extent to which the spouse seeking maintenance has reduced that spouse's income or career opportunities for the benefit of the other spouse.
- The ability of both parties after the dissolution to contribute to the future educational costs of their mutual children.
- The financial resources of the party seeking maintenance, including marital property apportioned to that spouse, and that spouse's ability to meet that spouse's own needs independently.
- The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment and whether such education or training is readily available.
- Excessive or abnormal expenditures, destruction, concealment or fraudulent disposition of community, joint tenancy and other property held in common.
- The cost for the spouse who is seeking maintenance to obtain health insurance and the reduction in the cost of health insurance for the spouse from whom maintenance is sought if the spouse from whom maintenance is sought is able to convert family health insurance to employee health insurance after the marriage is dissolved.
- All actual damages and judgments from conduct that results in criminal conviction of either spouse in which the other spouse or child was the victim.
Isn't there a formula in Arizona to decide the amount of spousal maintenance?
Yes, sort of. In 1999 the Maricopa County Superior Court undertook a study of divorce cases to attempt to create a set of guidelines to assist family court judges' in deciding the amount and duration of the spousal maintenance award. The Maricopa County Spousal Maintenance Guidelines are not the law in Arizona. However, a reason Division 1 Court of Appeals decision holds that the family court judge can use apply the Maricopa County Superior Court Spousal Maintenance Guidelines if the judge considers all of the factors listed above.
How do the Maricopa County Superior Court Spousal Maintenance Guidelines Work?
The guidelines are not intended to determine if a spouse should receive spousal maintenance (although they do provide some helpful guidance). Basically, you take the total years of marriage multiplied by .015 and then take that sum and multiply it by the difference in the gross monthly incomes of the spouses. The duration of the award is a third to one-half the length of the marriage (unless the spouse seeking spousal maintenance is over 50 and the parties were married for more than 20 years, then the award is of an indefinite duration).
For example, if you assume that at the time of the filing of the Petition for Dissolution of Marriage a husband and wife were married 17 years, the husband earns $10,000 per month and the wife earns $1,500 per month, the formula works like this:
Complete Years of Marriage: 17
Multiplied by: .015 (this factor is the same in every calculation)
Duration Factor: .255 (25.5%)
Husband's Gross Monthly Income: $10,000 per month
Wife's Gross Monthly Income: $1,500 per month
Difference in H/W's Income: $8,500 per month
Amount of Spousal Maintenance Award: $2,167.50 per month (.255 times $8,500)
Duration of Award: 5.1 to 8.5 years (.3 to .5 length of marriage).
*A note about the guidelines. They are just that -– guidelines. The use of the spousal maintenance guidelines is controversial. Some judges rely on them exclusively while others ignore them entirely. Unfortunately, the judges are not required to disclose their particular opinion about the guidelines to the public. There are a number of valid criticisms of the guidelines, e.g., that they result in orders that are higher than are typically agreed to or ordered by judges, that they assume that each spouse's income will not change following divorce, that they ignore the rate of inflation. The guidelines may provide a "gut check" or provide some measure of objectivity in what is still a very subjective decision-making process.
Is spousal maintenance modifiable?
Yes, unless the parties agree to make the spousal maintenance award non-modifiable. Spouses who intend to make the spousal maintenance non-modifiable must do so explicitly in writing.
Is spousal maintenance taxable income to the recipient?
Yes. Receipt of spousal maintenance is taxable as ordinary income.
Is spousal maintenance tax deductible to the paying spouse?
Yes.
Does spousal maintenance end when my ex-wife gets remarried?
Yes.
Does spousal maintenance terminate upon the death of the party receiving spousal maintenance?
Yes.
Does spousal maintenance terminate upon the death of the party paying spousal maintenance?
Maybe. Some orders require the estate of the deceased spouse to pay any spousal maintenance amount remaining due at the time of death of the party who pays spousal maintenance.
Property Issues
Is Arizona a "community property state"?
Yes.
What is community property?
Community property is defined by statute to be "all property acquired by either the husband or wife during marriage" except property that is acquired during marriage by gift, devise or descent, or acquired after the date of service of process of a petition for dissolution of marriage if the parties ultimately get divorced. Thus, the law creates a presumption that any property acquired by either spouse during marriage is community property. A party seeking to establish that a particular asset is separate property must prove its character by clear and convincing evidence.
How is community property divided?
The family court judge is required to equitably divide community property and debts. An equitable division is not necessarily an equal division although Arizona appellate courts have held that community property should be divided in a substantially similar manner. The family court judge is permitted to consider concepts of fairness and all of the facts in deciding how to divide community property.
Will I have to sell my home if I get divorced?
It depends. Generally, if you want to keep the marital residence, you must be able to purchase your spouse's financial interest in the residence. Often times, this requires you to be able to refinance the mortgage debt.
My home is worth less than I owe, do I have to pay the deficiency if I lose the home in foreclosure?
Fortunately, no. The rapid depreciation in the Valley's real estate market has caused many homes to lose so much value that the home is now worth less than the debt that is secured by the home. Arizona law precludes a mortgage lender (or a holder of a deed of trust) to collect the difference in the amount received at auction and the amount of the balance of the loan at the time of auction. Arizona's "anti-deficiency" statute also applies to home equity lines of credit that were used to purchase personal property, goods or services.
Do I have to liquidate my 401 (k) to pay my spouse for his/her share?
No. Federal and state law permits the court to enter a special court order called a Qualified Domestic Relations Order that is signed by the family court judge and sent to the Plan Administrator of the 401 (k) plan to ensure that the non-contributing spouse has a separate account set up to transfer the other spouses' interest without having to pay taxes or penalties. The non-contributing spouse, i.e., the alternate payee, may leave the money in the plan or can roll it over into another 401 (k) plan or into an Individual Retirement Account (IRA) tax free. The alternate payee will have to pay taxes and penalties if they liquidate the plan, unless he/she qualifies for a hardship exemption. A similar process is involved in transferring an interest in an IRA tax free.
Will the judge consider giving me more property because my spouse caused the divorce?
No. The family court judge is not permitted to consider issues of "marital misconduct" in dividing community property and debt. However, the family court judge can consider waste or concealment of community property.
Is a creditor bound by an order in a divorce decree which assigns responsibility for payment of a debt?
No. A creditor who is not a party to the litigation is not bound by an order that assigns responsibility for payment of a debt and may legally pursue collection of the debt from both parties.
Attorney's Fees and Costs
Will you work for free?
No (although we have historically provided pro bono or discounted rate services from time to time for one or two people at a time).
Can I pay you a percentage of the amount I receive when my case is over?
No. An ethical family law attorney will never agree to make any portion of his/her fee contingent on the outcome of the case. The attorney should never have a financial interest in the outcome of the litigation.
Will my spouse be ordered to pay your attorney's fees?
Maybe. Arizona law requires the judge to consider the reasonableness of the positions taken by the parties during the litigation and the relative financial resources of the parties when deciding if a parent is entitled to an award of attorney's fees. The two factors are independent and separate. A spouse need not be actually destitute to qualify for an award of attorney's fees and costs.
Why does it cost so much money to get divorced?
Running a responsive and efficient, small family law practice takes a considerable amount of talent. The single largest expense is support staff. We believe in rewarding staff who have been loyal by paying them a salary that is commensurate with their experience, dedication and years of service. Other costs, in no particular order, such as rent/mortgage, furniture, computer technology, professional services, malpractice insurance, health insurance, property insurance, filing fees, advertising, phone service, courier service, office supplies, copier/printing machines, continuing legal education, reference materials and online research services, etc. all add to the monthly overhead.
In the end, though, our fees are determined by market forces. The unfortunate reality is that it is not cheap to obtain a divorce in Maricopa County. Many attorneys charge over $350 per hour while few charge less than $250 per hour. Our hourly rates for attorney's and staff are believed to be less than the majority of attorney's with similar experience.
How much is your retainer?
It depends. I will not quote a retainer until I consult with a potential client. Generally, my retainer for a divorce with children is not less than $4,000. My associates retainer may be less than mine depending on the case.
Why should I hire you?
Well, hopefully, the answer is yes, because you have decided that your trust is well placed in my firm. I am not a miracle worker and I do not have a magic wand to make everything easier for you. My style seems to work for most people but I have found over the years that I may not be the attorney for you if you want someone to act ridiculously "aggressive" on your behalf and pursue unreasonable claims or if you are an overly controlling or demanding person or are inflexible and perennially churlish. I use the words "overly" and "perennially" intentionally. The simple truth is that I cannot please everyone all of the time and it is not healthy to try and obtain everyone's approval. I am happy to refer you to other attorneys if I do not think we will work well together.
I think you will find that my staff is experienced, knowledgeable, patient, courteous and willing to listen. We are all here to serve you.
