3100 W. Ray Road, Suite 115, Chandler, Arizona 85226
Ph: 1-480-792-9770

Frequently Asked Questions

WHAT IS THE GENERAL PROCESS OF OBTAINING A DIVORCE?

  1. A Petition is filed. The Petition gives the Court information about the parties, the children (if any) and the assets/debts. Since Arizona is a no-fault divorce state, the Petition must allege that the marriage is "irretrievably broken with no reasonable prospect of reconciliation." There are several other documents that are filed along with the Petition. These documents provide additional information regarding the parties' rights and obligations during and after the divorce process. In Maricopa County, the Petitioner must pay a filing fee to the Court in the amount of $321 (filing fees vary by county). Under certain circumstances, the Court can waive or defer this fee.
  2. The Petition is served. Service can be accomplished in several ways: (a) personal service by a process server or law enforcement officer; (b) if the Respondent does not reside in Arizona, certified mail/return receipt requested; (c) acceptance of service; and (d) publication, if the Respondent cannot be located after diligent efforts have been made. The acceptance of service is the most time-efficient/cost-effective method of service, and is commonly used in cases where the parties are attempting to amicably resolve their case. By signing this document the Respondent acknowledges that he/she has received the documents from the Petitioner. It does not mean that the Respondent agrees with the contents of the Petition.
  3. A Response is filed. The Respondent has twenty days (thirty if served outside of Arizona) to file a written response if he/she disagrees with any of the requests made in the Petition. There is a filing fee of $256 for the Response. If the Respondent does not file a timely Response, the Petitioner is entitled to proceed by default (the case proceeds without the Respondent's participation). The Petitioner can seek a hearing to have the divorce finalized in a way that is identical to the requests made in the Petition.
  4. Temporary Orders. In cases where the parties cannot agree on how to handle issues during the divorce (e.g. parenting time, child support, spousal maintenance, use of the family residence, payment of joint expenses), either party can file a Petition to ask the Court to schedule to make temporary orders.
  5. Decree of Dissolution. The Decree is the document the Court signs to signify that your marriage is dissolved. There are three ways to get this accomplished: (a) After Trial. If the parties are unable to resolve their contested issues after reasonable attempts, the Court will conduct a trial to hear evidence and testimony, then rule on the outcome; (b) By Default. If the Respondent does not file a timely Response, the Petitioner can attend a hearing during which the Court will confirm that the final orders match the requests in the original Petition, and the Decree will be signed during the hearing; (c) By Consent Decree. If the parties are able to resolve all issues, they will both sign the Consent Decree package (Decree, Parenting Plan, Settlement Agreement, Child Support Calculations) and submit it to the Court not less than 64 days after the Petition was served. The Respondent's filing fee must be paid at or before the time the Consent Decree is submitted, and if there are children, both parents must have completed the Parent Information Program Class.

WHAT ARE THE ISSUES INVOLVED IN A DIVORCE?

Child Custody/Parenting Time:

Legal Decision Making Authority (previously known as "custody") refers to the parents' authority to make decisions regarding their children with respec to medical, educational, religious and personal care issues. Legal Decision Making can be "joint" (where the parents share authority), or "sole" (where one parent has authority). Joint Legal Decision Making Authority does NOT mean equal parenting time.

"Parenting time" (previously known as "visitation") refers to the parents' time-sharing schedule. The parties are free to agree upon a parenting time schedule, so long as it is in the best interests of the children. If the parties can't agree, the Conciliation Services department of the Court can conduct mediation services, or the parties can participate in a private (and costly) custodial evaluation. Children do not get to choose where they want to live, at an age. An older child's preference might be given more weight, but it will never be the sole determining factor. If an agreement cannot be reached, the Court will make the final decision. The Court's goal is for both parents to play an active role in their children's lives, whether they live in the same community or in different states.

Child Support:

Child support is calculated according to a statutory formula. The relevant factors are the parents' gross (before taxes) monthly incomes, the number of children, the ages of the children, the cost of medical insurance, the cost of daycare, and the amount of parenting time exercised by the non-residential parent. The parties' incomes are generally based on a regular 40-hour workweek, but if one party is unemployed or underemployed, the Court has the discretion to attribute additional income. If spousal maintenance has been awarded, it is deducted from the paying parent's income and added to the receiving parent's income. Child support is modifiable if there is a change in circumstances that would result in a 15% change in the support amount, and the support terminates upon the emancipation of the child. In Arizona, emancipation occurs at age 18 or high school graduation, whichever occurs later, but not later than age 19.

One parent will be required to maintain health insurance for the children, and if there are any medical/dental/vision/orthodontia expenses not covered by insurance, the parties will divide those expenses in proportion to their incomes.

The federal and state income taxes exemptions for the children are also generally divided in proportion to the parties' incomes; however, in order for the paying parent to claim the children during his/her year, the parent must be current in his/her child support obligation for that year.

The Court can permit the parties to settle on an amount of child support that is different from the statutory calculation; however, in order to do so, both parties must sign a statement indicating that they are aware of what the child support would have been had they not entered into the agreement.

Spousal Maintenance:

In Arizona, there is no statutory formula for calculating spousal maintenance (know as "alimony" in some states); however, there is an unofficial "guidelines" formula that is used by many attorneys and some judges.

To receive spousal maintenance, the receiving party must demonstrate the need for maintenance (e.g. lack of resources, lack of education, inability to work, etc.). Once the need is established, the parties must determine the appropriate and duration of the support, taking into consideration the incomes of the parties, the need of the parties, and the length of the marriage. If the parties cannot agree, the Court will make the decision.

Spousal maintenance terminates upon the death or remarriage of the receiving spouse. Also, spousal maintenance is considered income, so it is taxable to the receiving party, and it will reduce the taxable income of the paying party.

Division of Assets/Debts:

Since Arizona is a community property state, the Court presumes that any asset or obligation acquired during the marriage is community (except for gift or inheritance), and anything acquired prior to the marriage or after the date the Respondent is served is separate property. Community property and debts are to be equitably divided, and if the parties cannot agree on an "equitable division," the Court will make the decision.

Attorneys' Fees:

In most cases, each party will pay his or her own filing fees and legal fees. The Court has the discretion to award attorneys fees after considering the parties' comparable financial resources and the reasonableness of the position each party has taken during the proceedings.

Satisfaction in the outcome of the case depends greatly on whether the parties can reach agreements. It is certainly best to do so; a trial is extremely costly, takes a long time to schedule, and is somewhat unpredictable, as the Court might order something that neither party wanted. If the parties cannot reach agreements on all issues, there are other non-litigation alternatives to assist in an amicable resolution.

If you or someone you know needs the assistance of an experienced Arizona Family Law Attorney, call Donaldson Stewart, P.C. today at 480-792-9770, or complete the contact form provided on this site to schedule your initial consultation.


Donaldson Stewart, P.C.
3100 W. Ray Road, Suite 115,
Chandler, Arizona 85226
Telephone: 1-480-792-9770
www.donaldsonstewartlaw.com

Monica H. Donaldson Stewart   -   David I. Sheffield   -   Richard S. Fregin
Marty J. Zalevsky   -   Heather N. Pelaez

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