If you feel overwhelmed by the prospect of going through a divorce, you are normal. At the beginning of the process, most people have so many questions, they don't even know where to start. Here are a few common questions -- and ANSWERS!
1. HOW LONG DOES THE PROCESS TAKE? Under Arizona law, a divorce cannot be finalized for at least 60 days after the initial divorce papers are served on the non-filing party. If all issues are resolved by settlement at the end of the 60-day waiting period, the divorce can be finalized within a few weeks thereafter. If issues remain unresolved at the end of the 60 days, the divorce will not be finalized until such later time as the husband and wife reach an agreement as to all issues or the judge decides the case following a divorce court trial. Some cases take up to a year or more to be finalized.
2. WHAT ISSUES HAVE TO BE RESOLVED? Simply stated, the following issues have to be resolved in order for the divorce to be granted and finalized:
a. Child custody (now known as legal decision making) and parenting time when the parties have minor children in common
b. Spousal maintenance (alimony), if any
c. Child support when the parties have minor children in common
d. Division of assets and debts
e. Whether one spouse should pay all or part of the other spouse's attorney's fees
Any or all of these issues can be resolved by an agreement between the parties. Issues not resolved by an agreement between the parties will be decided by a judge. It is almost always quicker and less expensive to reach an agreement than to have the issues decided by a judge via court trial.
3. HOW MUCH WILL IT COST? Many divorcing couples with no children in common and no real estate, business interests or retirement accounts can get divorced quite inexpensively, sometimes without an attorney. As of September 26, 2008, court filing fees (applicable whether an attorney is involved or not) are $321.00 for the filing party and $256.00 for the responding party. When the case involves child custody, support, real estate, retirement accounts, business interests or other complicated assets, the husband and wife would each be well-advised to have an attorney. Depending on the issues involved and the time it takes to reach a final resolution, the cost of legal representation can range from a few thousand dollars to the tens of thousands in more complex and contested cases.
4. CAN MY SPOUSE AND I HIRE THE SAME ATTORNEY? No. The rules of ethics prohibit an attorney from representing both parties to a divorce. If an attorney tells you he/she can represent both parties, find another attorney. However, neither party is required to have an attorney. Anyone divorcing in Arizona can choose NOT to hire an attorney. It is not uncommon for one party to hire an attorney and for the other party to represent himself. In this case, however, the attorney still represents just one party; the other party is UNrepresented.
5. WILL I GET CUSTODY OF THE CHILDREN? Absent an agreement between the parties, the judge decides child custody (legal custody is decision-making authority for the children) and parenting time (the time-sharing schedule between the parents). Under A.R.S. Section 25-403, the judge considers many factors, including the parents' wishes, which parent has been the primary caregiver, the children's adjustment to each parent and to home, school and community, the children's wishes (in some cases), and which parent is more likely to allow the other parent a relationship with the children. The judge will also take very seriously any history of domestic violence or substance abuse. Joint legal custody is shared decision-making; it has nothing to do with where the children live. Parenting time arrangements can range from equal time with each parent to the children living primarily in one home and having alternating weekend parenting time with the other parent.
6. HOW MUCH WILL CHILD SUPPORT BE? Child support is governed by the Arizona Child Support Guidelines. It is calculated using a formula outlined in the Guidelines after the following variables are determined by agreement between the parties or by a judge following a court trial:
a. Monthly gross income for each parent
b. Cost of supporting children not common to the parties
c. Spousal maintenance (alimony) paid/received
d. Cost of child care
e. Cost of medical insurance for the children
f. Parenting time schedule
The number and ages of the children also affect the calculation. Rough calculations can be prepared in an initial office consultation, but the calculations will be based on the assumptions (see above variables) provided by the client for the calculation. If the variables change later (for example, the judge finds the incomes to be different than the figures supplied by the client or the judge orders a different parenting time schedule than the client expects), a different child support amount would result.
7. WHAT ASSETS WILL I RECEIVE? In the absence of a premarital agreement, most property acquired by either spouse during the marriage is community property. Community property is owned equally by the husband and wife and is divided substantially equally in the divorce. Even if one spouse has worked harder and accumulated more than the other spouse during the marriage, the assets are still divided substantially equally in the divorce. For example, if Husband works 20 years during the marriage and accumulates $400,000 in his company 401k plan, and Wife is a stay-at-home mom and earns nothing during the marriage, Wife is still entitled to $200,000 from Husband's 401k at the time of the divorce. Community property does not include inheritances and gifts received by one party if those assets are kept separate after they are received.
8. WILL I GET SPOUSAL MAINTENANCE (alimony)? Arizona does allow spousal maintenance in appropriate cases. Judges are required to perform a two-part analysis under A.R.S. Section 25-319. First, under 25-319 A, the judge must decide whether the person seeking maintenance qualifies for an award. The judge considers several factors, including the relative earning abilities of the parties, the length of the marriage, the parties' ages, and the property each party will receive in the divorce. If the judge determines that the person seeking maintenance does not qualify, the inquiry ends. If the judge determines that the person seeking maintenance qualifies for an award, the judge then moves to the second part of the analysis under 25-319 B -- the amount and duration of the award. This statute requires the judge to consider another long list of factors, which can be discussed in more detail in an office consultation.
9. CAN I MOVE OUT OF ARIZONA WITH OUR CHILREN? A.R.S. Section 25-408 addresses relocation with children out of Arizona or more than 100 miles within Arizona. The person seeking to relocate must generally prove that the relocation is in the CHILD's best interest. After a custody order has been entered, in most cases the parent seeking to relocate is required to provide 60 days' advance notice of his/her intent to relocate. The notice must be served. The other parent then has 30 days to file a motion with the court opposing the relocation and seeking hearing. At the relocation hearing, the relocating parent has the burden to prove that relocation is in the child's best interest, which can be very difficult to do.
10. WHAT DO I DO NEXT? Most people have many questions and concerns, and it is impossible to answer all of them in this forum. You may wish to call my office at 480-833-2211 to schedule a consultation to discuss all of your additional questions. The important thing to remember is that with the help of your family, friends, and a good attorney, you can and will get through this!