Divorce FAQ page
WHAT IS A DIVORCE(DISSOLUTION)?
The purpose of a divorce is to obtain a dissolution of marriage. The key issues in a divorce or marriage dissolution are: the division of assets and liabilities; parenting time with minor children; spousal support (sometimes called alimony) and child support. In all cases the object should be to resolve the proceeding in a fair and equitable manner in your and the children’s (if any) best interest.
Whether you decide to hire an attorney or file on your own, you should keep a diary, log or other written record of all events which relate to your dissolution of marriage or other proceeding. This record should be made at the time that the events occur. Often, it is difficult to remember, with precise detail, events which occurred weeks or months earlier.
“NO-FAULT” DISSOLUTION OF MARRIAGE
Arizona is a “no-fault” state. This means that you do not need to prove fault in order to obtain a divorce. In fact, fault is not an issue in a dissolution of marriage case and the court will not permit evidence of fault or blame to be presented. So long as either spouse testifies that “the marriage is irretrievably broken and there is no reasonable prospect of reconciliation,” the Court will grant the dissolution of marriage. Fault is not a basis for property division, awards of spousal maintenance, parenting time or child support awards.
HOW DO I FILE FOR DIVORCE? THE DISSOLUTION PROCESS
A dissolution of marriage (divorce) is a court-supervised proceeding. It starts by the filing of a petition for dissolution of marriage. A fee must be paid to the Clerk of the Court at the time of filing the Petition.
A petition cannot be filed unless the petitioner (person who files the petition) has resided in Arizona for at least ninety (90) days before the petition is filed. The petition must be delivered to the respondent (person against whom the petition is filed). This is known as service of process or “service.” Formal service may be waived by a respondent in some cases.
The respondent has twenty (20) days from the date of service to file a response to the petition. If the respondent is served while outside of Arizona, he/she has thirty (30) days to file a response. If a response is not timely filed, the petitioner may prepare and file appropriate papers to enter the default of the respondent. If a default is entered, a hearing may be heard at a later date to grant the dissolution of marriage on the terms requested by the petitioner in the petition. This is known as a default hearing. Please consult with a Divorce attorney if you are served with a petition for dissolution.
If a response is timely filed, the case can proceed in either two directions. Either a settlement agreement can be reached or the case will proceed to trial. Sometimes, a settlement agreement is reached after an initial period of investigation or controversy.
As soon as a petition for dissolution is filed, a “preliminary injunction” is issued in every case. This is a Court Order which prohibits both parties from hiding, concealing or encumbering assets or cancelling insurance policies on the other spouse. It also prohibits both parties from harassing their spouse or removing children from the state without the permission of the spouse or without a court order. Whether you are filing to petition or are responding to a petition, read the preliminary injunction carefully as it applies to both parties.
Violating the preliminary injunction is a serious matter. Besides the possibility of being punished by the Court, in most situations, your case will be prejudiced. Most judges begin to form an opinion about a case from the moment of their first involvement. Being accused of a violation of the preliminary injunction often results in a taint which can never be fully removed.
This office also has extensive experience with Orders of Protection if you are being threatened or harassed.
The petition must contain certain information, which is required by law. If all of this information is not included, the petition will not be valid. The petition must contain:
- The age and occupation of each party, and the length of domicile in Arizona.
- The address of each party (except in cases where domestic violence is an issue).
- The date of the marriage and the place at which it was performed.
- The names, birth dates and addresses of all living minor children, natural or adopted, common to the parties and whether the wife is pregnant.
- The details of any agreements (if they exist) between the parties as to support, custody and visitation of the children and maintenance of a spouse.
- The relief sought by the petitioner.
The response to the petition, which is filed by the other party, must also be filed, unless a stipulated default Decree has been negotiated. If any statement in the petition is not accurate, the response must so indicate. If a wife wants her former name restored, she may ask in the proceeding before it is concluded. Like the petition, the response becomes a public record once it is filed with the Clerk of the Court.
PARENT EDUCATION PROGRAM
At the time of filing the Petition for Dissolution of Marriage (with children) or Petition for Legal Separation (with children) by Petitioner, the Court Clerk provides an Order to each of the parties to attend the class. There is no way around not attending this class. This class is required in order for the action to be concluded and no court date will be provided to either party unless both parties have completed this class.
ORDERS TO SHOW CAUSE AND TEMPORARY ORDERS
Sometimes a spouse wants or needs some form of immediate relief from the Court and cannot wait for the final trial or settlement. The Court has the power to enter a variety of temporary orders. Usually, the Court will agree to enter orders designed to protect a spouse from abuse, make sure that children are properly clothed, housed and fed, and orders for payment of debts and temporary possession of property. An experienced Family Law attorney can help you get the support you and your family need during the pendency of a divorce proceeding.
If a spouse will not voluntarily agree to leave a shared residence, provide temporary child support or necessary spousal maintenance, or otherwise act fairly, a petition for “order to show cause” may be filed. The Court then sets a hearing to hear the request and determine whether a temporary order should be issued. The temporary order usually remains in effect until the case proceeds to trial or is settled.
ALTERNATIVE DISPUTE RESOLUTION SERVICES (ADR)
The Yavapai County Superior Court offers both Mediation and Alternative Dispute Resolution Services. By Rule you will be required to attend mediation in custody disputes. In many instances these services are beneficial and in some instances participation is required by the Court. Use of these services may help parties in a dissolution or post dissolution action to resolve some or even all of outstanding issues. This results in a savings of time and money to the parties involved.
Mediation is a process where the parties meet with an impartial mediator or two(2) mediators (team) in an attempt to resolve the dispute. The parties may have their attorneys attend and they may consult with their respective attorneys at any time. The mediator(s) try to get the parties to consider options. Mediation is confidential and if no agreement is reached, discussions are not permitted in Court. Ask your attorney or his staff about these services.
THE SETTLEMENT AGREEMENT/STIPULATED DECREE
If the parties are able to reach an agreement as to all of the issues involved in the proceeding, a written settlement agreement or a stipulated decree is prepared. This document then governs the conduct of the parties and should avoid disputes in the future. Sometimes, it is necessary to return to Court to enforce one or more of the terms of the settlement agreement or stipulated decree (even contested decrees) after final dissolution because one or both of the parties may not be complying with the Decree.
THE “DISCOVERY” PROCESS
Often, it will be necessary to use the procedural rules of the litigation process to obtain information. To properly advise you about your rights and liabilities, the attorney needs information about a variety of subjects. If the information is not readily obtainable or is not voluntarily provided by your spouse, the rules of court may be used to obtain the information. This is known as the “discovery” process.
The discovery rules permit written questions to be sent to either party. In addition, documents can be subpoenaed if necessary. A spouse may be interrogated under oath in the presence of a court reporter. Skillful discovery can do much to improve a party’s case. The lack of appropriate discovery can often lead to poor results.
THE DISCLOSURE STATEMENT
Pursuant to the Rules of Family Law Procedure, Rule 49, each party is required to prepare and send to the other party an information statement known as a “disclosure statement.” The disclosure statement is due not later than forty (40) days after the response is filed. There is a duty to supplement the disclosure statement when new or different information comes to your attention.
There are serious consequences for the failure to prepare a disclosure statement and for presenting a false or misleading disclosure statement. The Court can invoke a number of remedies for the failure to prepare a complete and full disclosure. You can be sanctioned, fined or have the relief granted by your spouse. Therefore, we must make full and truthful discovery or disclosure.
If the case cannot be settled, a trial will be necessary. The trial will be conducted in front of a judge. There is no automatic right to a jury trial in a divorce case. Dissolution of marriage cases are entitled to a preference when scheduling the case for trial. Nevertheless, it may be six (6) months to twelve (12) months or longer before your contested case gets to a final trial.
At the trial, each party presents evidence to support his/her request for relief. Evidence in the form of testimony and documents may be presented. At the conclusion of the evidence, the judge makes a decision about each issue involved. The judge must render a decision within sixty (60) days but sometimes the reality is that a final decision may take longer.
THE DECREE OF DISSOLUTION
After the judge decides the case, a decree of dissolution is prepared and presented to the judge for signature. One attorney will prepare the decree, the other may object that the form doesn’t conform to the Court’s Order and the Court then resolves differences. The decree is a Court Order which contains the judge’s ruling. The decree is effective as soon as the judge signs it. Thus, the divorce/dissolution does not occur until the decree is signed and entered in the Clerk’s files.
If you have reached this point without an attorney and now do not know how to proceed, you are not alone. We offer preparation of Decree of Dissolution services.
If a party is not satisfied with the Decree, he/she may ask the judge to modify it. There must be a valid legal reason to modify the decree and the request must be made within the short time period allowed by the rules of procedure. If the judge made an error of law and will not correct it, an appeal may be filed within the time allowed by law. Taking an appeal is not something done lightly. It can be expensive and it is time-consuming.
PARENTING TIME . LEGAL DECISION-MAKING
There are two types of legal decision-making arrangements which the parties can agree to or which the Court can order after a contested hearing. Additionally, there are all types of parenting time/access plans that can be agreed or granted. Please discuss these with your attorney (if you have minor children) as this is the most important aspect of your dissolution, parenting time, or paternity proceeding.
This office views children as precious and your most important asset of your marriage. They are “assets” which cannot be divided. You must act in their best interest and not yours. We are never willing parties in efforts to sabotage or interfere with either parents relationship with the children. If you have such conduct in mind, seek other counsel. If you act contrary to your children’s best interest (in our opinion) we will always be direct and advise you so. Your “best interest” is providing for your child’s “best interest.” Please be open and honest with your attorney and his staff on all issues regarding your children.
We will assist you with respect to the preparation of a parenting plan which works best for you and your family. Many times the most devastating part of a divorce is the thought that you will not see your children on Christmas or other important holidays. There are many different plans available. Many parents want to split Christmas day, others want to alternate Christmas. Splitting a holiday in half may work for Christmas but may not work for Halloween or July 4th when the festivities are held in the evening.
Parenting plans should also include provisions concerning major life decisions, education and extra-curricular activities, medical and health care, religion, telephone contact and other legal decision-making guidelines.
You need to speak to a Divorce attorney to discuss the various parenting plans and determine which is best for you and your children.
DIVISION OF ASSETS AND LIABILITIES
The Court is required to fairly and equitably divide the joint, common and community assets and equitably apportion the joint, common and community liabilities. This does not mean that the Court is required to make a fifty-fifty split. Often, it is impossible to equally divide everything and the Court will attempt to divide assets according to logistics, wishes of the parties, and the value of the assets and liabilities.
“Community property” generally is all property acquired during a marriage except that which is acquired by gift or inheritance. “Property” means a thing of value and does not necessarily mean land or a building. Generally, the earnings of a spouse are community property, as are all of the fruits and proceeds of those earnings. Property acquired during a dissolution of marriage proceeding is pending is generally not community property. There is a presumption that a marital residence is community property, even if one spouse provided the down payment from his/her separate property.
Separate property is property acquired before marriage or by gift or inheritance during marriage or after proceedings have been commenced and purchased with your salary. If separate property is mixed (“comingled”) with community property, the separate property may lose its separate character and become community property. The Court is required to apportion to each spouse whatever is his/her separate property. Sometimes, there may be dispute about whether a certain item of property is separate or community and a Court can grant a community lien on one spouse’s separate property to allow some payment in favor of the other spouse.
The court may grant a maintenance order for either spouse for any of the following reasons if it finds that the spouse seeking maintenance:
- Lacks sufficient property, including property apportioned to such spouse, to provide for his/her reasonable needs;
- Is unable to support himself/herself 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 support himself/herself;
- Contributed to the educational opportunities of the other spouse;
- Had a marriage of long duration and is of an age which may preclude the possibility of gaining employment adequate to support himself/herself.
The maintenance order may be for such amount and for such period of time as is “just.” The Court cannot consider marital misconduct in setting a maintenance order, but must consider all relevant factors including:
- The standard of living established during the marriage;
- The duration of the marriage;
- The age, employment history, earning ability, and the physical and emotional condition of the spouse seeking maintenance;
- The ability of the spouse from whom maintenance is sought to meet his/her needs while meeting those of the spouse seeking maintenance;
- The comparative financial resources of the spouse, 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 his/her 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 such party, and such party’s ability to meet his/her 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.
A Paternity Action is commenced by either the natural mother or the man alleging to be the father asking the Court to establish/order that the alleged father is the legal/biological father. It is generally filed regarding parties who were never married to one another. Sometimes the action is filed by the State of Arizona (Child Support Services) on behalf of a mother. In a paternity action, either party can also seek custody, establishment of child support, orders regarding back support and birth costs and visitation orders. When the state appears on behalf of a mother or father to establish paternity and support, they do not represent either party on issues of custody and visitation (just establishment of paternity and support). That is why often parties seek private counsel to proceed on paternity petitions.
Usually if the father denies parenthood, the Court will order DNA blood testing and a proper test result is conclusive as to whether a man is the father of the child.
In Dissolution cases involving minor children (under 18 or still in high school) or in paternity cases with minor children, the Court must order child support in an amount that is reasonable and necessary. Both parents owe a duty of support and how much the non-custodial parent will pay is determined by guidelines adopted by our Supreme Court called the Arizona Child Support Guidelines. Those guidelines take into account both parents’ gross incomes (or the ability to earn) and many other factors including day care costs, health coverage costs and other miscellaneous expenses. Support amounts should be discussed in your consultation with your divorce lawyer and they are calculated on a worksheet for support adopted by the Court based on the Court’s findings as to income.
POST DISSOLUTION ENFORCEMENT OF SUPPORT OR MAINTENANCE
Often after a dissolution is final, a party who is ordered to pay child support or spousal maintenance fails to do so. You can seek relief from the Court in the form of a “contempt” petition (asking for sanctions – like jail time or loss of licenses [driver’s and/or professional] from the Court.
MODIFICATION OF SUPPORT, MAINTENANCE, CUSTODY
Post decree modification (changes) in support, spousal maintenance or parenting time are also new and separate from your dissolution action. The same general rules and procedures discussed above apply. For parenting time modification, unless the parties agree, there must be significant, continuing changes in the child’s life to support modification by the Court.
HOW THIS OFFICE VIEWS YOUR BEST INTEREST AND THE PRACTICE OF LAW
The Law Office of Daniel DeRienzo believes that your case and your rights are important. We understand that clients are real people with real feelings and problems and that they are not made of money. We understand that divorce can be a sad and painful experience so we act at all times with compassion and understanding.
Based on that, it is our policy that:
- We charge a fair rate for our skill and experience.
- We work as quickly and as competently as we can on your case.
- We will fight and assert your rights, if necessary, until the end, but we will advise you to attempt to resolve issues with your spouse to save time and trouble and we always suggest one or more joint meeting of attorneys and parties as soon as possible to narrow and resolve issues (sometimes other attorneys will not agree to this – but we always try to set such meetings).
- We do not file frivolous motions, interrogatories or other matters to extend or expand your fees incurred, nor do we do it to harass the other side. When motions are legitimately necessary, we advise you so. And, we must respond to those filed against you whether legitimate or necessary. We do not advise you to carry on when it is not in your best interest in order to earn a fee.
- We keep you advised of what’s happening (you get copies of everything that comes in and out of this office) and advise you so you can make intelligent decisions in consultation with your loved ones or people you trust. If you or your position is contrary to law or unfair, we will be the first to tell you.
There are many potential issues involved in a dissolution of marriage. Knowledge of the pertinent facts is very important, but your comfort with our service and staff is equally important. We will carefully walk you through the steps of how to get a divorce. Our staff has the experience and the compassion to make even this difficult time less stressful and to give you the hope and optimism for your new life.