Family Law Frequently Asked Questions

 

Does custody always go to just one parent?
Are Arizona courts more likely to award custody to mothers than fathers?
Under what circumstances will the court award alimony or spousal support?
How is the amount of child support calculated?
Once a court issues a child support order, can the amount of support that is paid be changed?
How is child support collected if the person responsible for paying it moves to another state?
What are parents' obligations to their children?
How does a court decide which parent will get custody of a child?
What is the legal divorce process like?
What kinds of assets are divided in a divorce?
What terms should be included in a separation agreement?
Learn More: Family Law


Does custody always go to just one parent?
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Custody does not have to go to one parent (sole or primary custody); joint/shared/split custody may be an option as well. There are two types of joint custody. If parents have joint legal custody, they each have equal rights to make major decisions for their child/children and must agree on these decisions. Some examples of major decisions are schooling, religion, healthcare, athletics, discipline, age of driving and other activities. If parents have joint physical custody, the time each child spends with the parent is split equally. It is also possible for parents to have joint legal custody and not joint physical custody. Then the child may spend less time with one parent, such as weekends, holidays or other specified time periods. The courts look at the fitness of each parent (issues such as drugs, alcohol, domestic violence and criminal activity), each parents ability to cooperate with each other, the child’s relationship with each parent and each parent's desire to be involved in the child’s life, among many other factors.

Are Arizona courts more likely to award custody to mothers than fathers?
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Historically, the court presumed the mother to be the best parent to award custody of the child. Today, that is not the case. Courts must consider the best interests of the child when determining custody. The best interests of the child have nothing to do with a parent's gender. The courts look at criteria such as the wishes of the child and the parents, the relationship of the child to the parents, siblings and any other extended family, the location of the parent (considering adjustment to school, church, etc.), the health of the child and/or parents, the financial situation of each parent and which parent has been the primary caretaker of the child thus far. Even though there is no legal presumption in favor of the mother, it is important to note that courts may still give preference to the mother in custody disputes where the child is an infant, under the age of six or a female child of mature years. However, courts still consider who has been the primary caregiver, the mental and physical health of the parent, the financial situation of the parent and other similar criteria to arrive at the “best interests of the child.”

Under what circumstances will the court award alimony or spousal support?
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The obligation of spouses to support each other does not necessarily terminate when they divorce. If the divorce will leave one spouse with very little income and the other with enough to contribute to the low-income spouse's support, the court will usually award alimony, at least temporarily.
Historically, spousal maintenance was awarded to homemaker wives, and paid by wage-earning husbands; that is no longer always the case. Now, either spouse may be awarded alimony if the other has the more substantial income and the recipient spouse's income is insufficient to support him or her at the level to which the spouses were accustomed during the marriage.

Spousal support is often awarded in cases in which one spouse has put his or her education or career on hold in order to raise the parties' children while the other climbed the career ladder and achieved a higher income. In such cases, the alimony will often be temporary, providing income for a period of time to enable the recipient spouse to become self-supporting. This temporary, or rehabilitative, spousal support enables the recipient spouse to further his or her education, receive job training, reestablish himself or herself in a former career or complete childrearing responsibilities, after which time he or she can be self-sufficient. The first issue to be determined by the Court is whether this is a case that warrants spousal support. If the court decides that it is such a case the next issue to be decided is the amount and the duration of the spousal support. Arizona divides marriages into three classes. A short marriage is one lasting less than 10 years. An average length marriage is one lasting 10 – 20 years. A marriage of long duration is one lasting over 20 years. A very generic rule-of-thumb is that spousal support can be awarded for a duration lasting one-half the length of the marriage for a short or average length marriage and for life for a long marriage. The amount of spousal support is determined by several factors listed in the Arizona statutes.

How is the amount of child support calculated?
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Arizona has developed guidelines that help establish the amount of child support that must be paid. The guidelines are based on the parents' incomes, expenses and the needs of the children. Generally, variation from the statutory guidelines must be carefully justified or it can be readily overturned on appeal. The guidelines are set out in a chart-type format that calculates the child support amount as a percentage of the paying parent's income that increases as the number of children being supported rises. The purpose of guidelines is to aid the judge (and parents) in determining fair child support amounts. Judges are free to deviate from the guidelines when there are good reasons to do so. If, for instance, one party or a child has higher than average expenses, the amount can vary. Or if the court determines that the paying parent is voluntarily earning less than he or she could for the purpose of minimizing the child support obligation, the judge can calculate the amount of child support based on what the payer is capable of earning. The general factors that are almost universally considered by judges issuing child support orders, include



- The child's standard of living before the parents' separation or divorce
- The paying parent's ability to pay
- The custodial parent's needs and income
- The needs of the child or children, including educational costs, daycare expenses and medical expenses (health insurance or special health care needs)
- Extraordinary or special expenses of a child

Once a court issues a child support order, can the amount of support that is paid be changed?
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The amount of child support may be modified under certain circumstances and through a variety of methods. The simplest method is for the parents to agree to a change, but the court must approve even an agreed-upon change in order to be enforceable.

When there is no voluntary agreement, the party seeking the change must request a court hearing at which each side will present, usually through counsel, the reasons supporting and opposing the modification. The court usually will not grant the request unless there has been a significant change in circumstances that justifies the change, such as a significant increase or decrease in either parent's income by at least 15%, a job change or loss of employment, or a considerable change in the needs of the child. Changes in the child support laws, too, may justify a change in previously issued orders. Also, under certain circumstances, an increase in the cost of living can warrant an upward modification of child support. Generally, periodic increases can be provided for in the original order so that the parties do not need to make repeated court appearances each time there is a significant change in the cost of living. Additionally, if the initial court order does not specify the date when the child support stops for children that reach the age of 18 or graduate from high school, a modification can be filed to terminate support.

How is child support collected if the person responsible for paying it moves to another state?
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Under the Revised Uniform Reciprocal Enforcement of Support Act (RURESA), an order for support issued by the family court in one state will be enforced by the family court in another state to which the paying parent moves if certain conditions are met. Under RURESA, the custodial parent has two options for how to proceed to collect support.

Under the first option, the custodial parent who receives the support must register the order for support in the county where the payer parent now lives. The family court will move to enforce the order and make the non-custodial parent pay. The payer parent can, however, go to court in his or her new home state and argue that the child support amount should be modified, and if he or she is successful, the child's home-state court may be stuck with the reduced amount.

Alternatively, the custodial parent can go to the family court in his or her home state to commence an action to enforce the support award issued by that court. The enforcement agency that serves that court will notify the payer's new home state so that enforcement actions, such as wage withholding, can be implemented there. Under this method, the payer cannot get the award modified in his or her new home state. The new state's court can, however, determine that the amount of child support ordered is too high and require that only a portion of it be paid, but the original state does not have to accept the reduced amount. The payer remains liable for the full amount as originally ordered, and if he or she fails to pay it, the original state may issue an arrest warrant, and the delinquency can show up on the payer's credit report.

What are parents' obligations to their children?
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Every parent has the duty to provide his or her children with the basic necessities of life, including food, clothing and shelter. This duty usually terminates when the child is emancipated, when the child graduates from high school, when the child enters the military or when the child marries, but the support obligation can extend beyond that point if the child is unable to support him or herself. The law generally does not dictate the level of support that is provided when the children live with both parents, but when, through divorce or other circumstances, the child is living with one parent, there are laws specifying the amount of financial support the non-custodial parent must provide.

How does a court decide which parent will get custody of a child?
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When the parents cannot agree on a custody arrangement, the court will make the decision for them. When determining the child's best interests, the court may consider many factors, including


- The child's age
- The child's physical and mental health
- The parents' physical and mental health
- The parents' lifestyles
- Any history of abuse, domestic violence, alcohol and drug abuse, and criminal activity
- The emotional bonds between the parent and the child
- The parent's ability to provide the basic necessities, such as food, shelter, clothing and medical care
- The child's routines, including home, school, community and religious
- The willingness of the parent to encourage a healthy, on-going relationship between the child and the other parent
- If the child is above a certain age, the child's preference
- Who has been the child's primary caretaker.

What is the legal divorce process like?
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Most divorces are simple (from a legal standpoint) and can be handled with a minimum amount of court involvement. However, other divorces are more complex and can take many different courses. The following is a basic outline of the divorce process.

- One spouse contacts a lawyer, who prepares a complaint (Petition for Dissolution of Marriage) setting forth the reasons that person wants the divorce.
- The Petition is filed with the court (filing fee of $326) and served by a registered process server on the other spouse, together with a summons that requires the spouse's response.
- The served spouse must respond within the time limit prescribed (20 days) or it will be assumed that he or she does not contest the petition, in which case the petitioner will be granted the requested relief via a default divorce. The response, or answer, must express the relief that the answering spouse requests.
- The parties, through their attorneys or individually, engage in "discovery," during which they exchange all documents and other information relevant to deciding the issues in the divorce such as property division, spousal support, child support, etc.
- The parties may attempt to reach a settlement, which can be initiated voluntarily or facilitated by the parties' lawyers or a neutral third party, such as a mediator. The mediator can be assigned by the Court or the partiescan agree to select a private mediator.
- If a settlement is reached, the agreement (called a Consent Decree) is submitted to the court.
- If the judge believes the Consent Decree is fair and reasonable, he/she will approve the Consent Decree and the parties are divorced.
- If the parties cannot agree on settlement of the issues, a trial will be scheduled. At trial the parties’ attorneys present the evidence and arguments for both sides, testimony of the parties and any witnesses, and the judge decides the issues and grants the divorce. In Arizona a divorce trial is scheduled for no more than 4 hours.
- Either or both parties can appeal the judge's decision to a higher court.

What kinds of assets are divided in a divorce?
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The parties in a divorce can agree to the division of (or the judge will divide) all marital or community property owned by the parties. Marital property generally includes most of the property the couple acquired during the marriage. Examples may be the marital home, second home, furnishings and appliances, artwork, vehicles, financial assets, investments, retirement accounts and privately owned businesses.

The value of intangible property may also be divided. Examples of divisible intangible property include the value of a patent on an invention, the goodwill value of a business owned by one spouse and the value of a professional degree earned by one spouse. The value of these intangible assets will generally only be divided when both spouses made a substantial contribution to that value, either directly or indirectly.

It is not always easy for a spouse to identify all of the assets that may be available for valuation and division. A party's lawyer may help with this issue through discovery. During discovery the parties' attorneys' trade documents that disclose each party's income, assets and liabilities. In addition, each spouse may be deposed by the other spouse's attorney. At the deposition, the questioned spouse will respond, under oath, to questions designed to gather all necessary information about his or her assets and income. If necessary, additional parties may be deposed, such as employers, bankers or business partners.

It is always best if the parties can mutually agree on a fair and equitable division of the marital assets before spending thousands of dollars and a great amount of time and mental anguish taking depositions and thereafter putting your faith in the hands of a Judge who will divide the property as equally as possible without any hesitation or emotion as to what each party really desires or wants.

What terms should be included in a separation agreement?
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A separation agreement may be advisable when the parties have very different financial situations, such as when one spouse is the wage earner and the other is a homemaker. A formal separation agreement can help ensure that all family members' needs will be met.

The terms of such separation agreements vary, but the following items are usually addressed:

- The spouses' right to live separately
- Custody of the children
- A visitation schedule
- Child support
- Alimony or spousal support
- The children's expenses (medical, dental, educational and recreational)
- Property and debt division
- Insurance (medical, dental and life)
- Income taxes

Learn More: Family Law
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The laws relating to families continue to change and evolve as judges and legislators have reconsidered and revised the legal issues involved in divorce, child custody, child support, domestic violence and other family law matters. Family law has become entangled in national debates over family structure, gender bias and morality. Few legal areas are as emotionally charged as family law and even with previous changes, family law remains a controversial and ever-changing area of law, which will continue to evolve as families and society evolve.
The division of marital property has also changed in recent years to give each spouse an equitable share of property upon divorce. One change that displays this trend is the recognition of the homemaker spouse's contributions to the growth of marital property. Along the same lines, homemaker spouses are not considered as dependent as they once were, and as a result, alimony is now often temporary, with the thought that after a period of "rehabilitation" these spouses can become self-supporting.

Issues such as child custody have also advanced in the courts as cultural and societal attitudes have changed. Mothers may have been favored in many custody disputes of the past, but fathers are given much more consideration than in the past. Custody battles, while always difficult and emotional, have become even more complicated as reproductive technology has increased the ways in which people can become parents. Family law lawyers and judges are faced with new, difficult and sensitive questions.

Another major change in family law in recent years is the recognition that many family disputes can be resolved through alternative dispute methods, such as mediation, as opposed to the traditional litigation process. Arizona has mandatory mediation in family law cases, which can save time and money and help maintain relationships.