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- Written by David Ryer
- Category: Uncategorised
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- Written by David Ryer
- Category: Uncategorised
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We look forward to working with you. We understand that this is a challenging time for you and your family, and we are committed to providing you the compassionate and aggressive services you need.
We have put together a couple forms to help you provide us all the information we need in order to effectively help you (and that is required by disclosure laws.) Here are the links to the downloadable forms:
Domestic Relations Disclosure Form
Uncovered Medical Expenses Reimbursement Table
Afffidavit of Financial Information
In addition, to better acquaint you with the issues surrounding divorce, custody and other related family disputes, we have prepared the following FAQ.
A “Petition for Dissolution” is the first paperwork which is filed to begin a divorce action. Arizona has adopted a statute which terminates the community upon the service of the Petition of Dissolution of Marriage. This means that once the Petition is served, although you may not be divorced, the community will no longer exist for purposes of debt and asset acquisition. Any debt incurred by either of you will be your sole and separate debt unless the Court orders otherwise. Each party’s earnings become that person’s sole and separate earnings. Any asset acquired as a result of his or her earnings becomes that person’s sole and separate asset as long as it is kept clearly separate and can be identified as such. It therefore becomes important for you to keep a separate bank account for your earnings and any other separate income you may receive post-service. Remember, however, that your paycheck may reflect pre-service work. It does not become your separate income until you start to get paid for work actually performed post-service.
Temporary orders can be issued by the Court to lay some ground rules for the interim period. For example, if you continue to pay the mortgage on the residence while your spouse lives there, you may want to call the payment spousal maintenance and obtain the deduction for the payment. If you make any payments to your spouse or on your spouse’s behalf, without a Court Order or written agreement to the contrary, it may be considered a gift. If you earn less than your spouse, it will be important to establish a support order early on. Temporary orders also generally address where the children will live, visitation, custody and child support. Temporary orders can evolve into Permanent Orders if the parties agree.
In every case, a Preliminary Injunction is issued against both parties. You are not allowed to sell, transfer, encumber or dissipate any joint assets except in the ordinary course of business or to pay your reasonable attorney’s fees. Joint assets can be assets that are in one party’s name alone. If in doubt about a particular transaction, please ask me. Let me know immediately if you learn your spouse has violated it. You should be aware that the injunction prevents either of you from changing insurance coverage or the beneficiaries of insurance coverage, or from taking the children out of the state or from harassing one another. If you have any questions whatsoever if a particular action will violate the Preliminary Injunction, please contact me. Violation of the Injunction can result in a finding of contempt which is very serious
Each person is entitled to control or possession of one-half of your liquid assets, meaning cash, money market accounts, certificates of deposit, stock accounts and the like, but not retirement or Individual Retirement Accounts. This does not mean that you can spend the assets in those accounts as you wish—they are still subject to the Preliminary Injunction—but you are entitled to control them. You should discuss with me any significant use of the funds in your possession before you spend them to make sure your actions are lawful. Decisions on liquid assets can be made in temporary orders.
Cox Sandoval Law, PLLC, recommends that all of its clients have a will or estate planning documents prepared on their behalf. We can recommend an estate planning attorney should you need one. In divorce cases, should you die without a will, your spouse may be entitled to all of the community property as well as all of your separate property.
Once the Petition is filed, you must maintain in effect all life insurance in effect at the time as well as any other insurance you have along with the beneficiaries listed at the time of filing. Although Arizona law requires that your spouse maintain you as beneficiary of any insurance in effect at the time of the filing, it is important to check directly with any life insurance company which insures your spouse’s life to make sure that (1) the policy is still in effect; (2) you are the beneficiary; and (3) you will receive notice in the event of default. If any life insurance is employer-provided, it is even more imperative to check on this because in certain cases, federal law preempts Arizona law and would permit the newly-named beneficiary (not necessarily you) to keep the proceeds.
While the divorce is pending – yes, but after the entry of a Decree – no. There are medical insurance considerations which should be attended to early on in the process, particularly if you have any pre-existing conditions. If either party is covered by health insurance obtained through a spouse’s employment, that coverage will end for the spouse of the employee upon entry of the Decree of Dissolution, unless the policy is converted to a personal policy. In order to convert that policy to a personal policy, the premium must be paid timely and the conversion privilege must be exercised with the insurance company within 30 days of the entry of the Decree of Dissolution. We cannot take this action for you. In some instances, COBRA coverage is available if you are covered under your spouse’s plan and if your spouse’s employer has more than a certain number of employees. Conversion under COBRA guarantees you coverage for a period of time, but you must convert after that time to an individual policy. This may be costly if you develop a pre-existing condition in the interim. You should consult with the plan administrator of your current policy for your options. If future coverage is not feasible, you should check with an insurance advisor.
It is important that you understand that communication with you is confidential. In essence, this means that neither Cox Sandoval Law, PLLC attorneys nor staff can be compelled to divulge information we have received from you, other than to comply with the disclosure and discovery requirements. Disclosure is the obligation of each party in the case to provide the other party with information without being asked for it. Discovery is the process in which parties request information from each other and respond to those requests. Although the office will assist with these requirements, it is your responsibility to produce and provide all of this information to Cox Sandoval Law, PLLC. Please do not send documents via email as they may not be secure. Additionally, it is essential that the documents produced for the other side are unmarked by you in any way, other than as marked on the original document. If you would like to provide an explanation or comments regarding the documents, please do so by separate notes or attachments.
It is important that you understand how Arizona’s Rules of Family Law Procedure may apply to your case. Arizona’s rules substantially change the litigation process that clients may be familiar with from federal court or from other states. The purpose of the rules is to reduce the time and expense involved in civil litigation. The rules encourage early Court involvement in case management, require disclosures by the parties and contain presumptive discovery limits.
We will assume that you have or will talk with someone knowledgeable about all the facts that give rise to any of our claims or defenses. You or the firm may need to talk with all the people that may have information about a case. You or the firm will need to identify and review all documents that may be relevant to your defense or claim.
As you can see, one effect of the rules is to “front load” much of the legal investigation and analysis to be done in your case. Obviously, this will also “front load” some of your legal expenses. However, please keep in mind that the other side must abide by these same rules, and that a benefit to be derived is that both sides should know relatively early on in any litigation the relative strengths and weaknesses of their cases. The rules were designed precisely for that purpose, to allow both sides to assess the whole case well in advance of trial, and to focus their resources on exchanging information and resolving the dispute rather than waging costly discovery battles.Click here to read the Arizona disclosure rules.
Both parties are required to attend a Parent Information Class in any case in which custody and/or visitation are disputed. The class is intended to assist parties in understanding how the legal process can negatively affect children. The class also provides you with valuable tools to help your children during this difficult time, and keep them out of the legal process as much as possible. It is important that you attend this class within 45 days from the date of service upon Respondent and that you follow the advice given.
The Court will not enter a decree without proof that all required persons have attended the class. If a party (or other person ordered to attend) refuses to do so, the Court may decline to enter orders in favor of that party. If you have any questions regarding these classes, please feel free to contact our office for instructions
If the parties agree to a settlement prior to going to trial, they can file a “Marital Settlement Agreement” or a Rule 69, Arizona Rules of Family Law Procedure, Agreement with the Court. This serves as a contract between the parties concerning all issues. It must be signed by both parties and filed with the Court (along with the “Decree of Dissolution”) for the Court to review, grant and sign. The Court will normally adopt all of the terms set forth in the Agreement, unless there are any glaring issues. It is common for a Consent Decree to occur when one spouse does not wish to fight the original Petition for Dissolution. This Marital Settlement Agreement is often used to settle issues regarding child custody, child support, property division and spousal maintenance.
Please keep in mind that even if you initiate a divorce with full agreements, the Court will still take 60 days to sign off on a final Consent Decree. That 60 day waiting period starts from the date of service.
There is no way we can agree on anything. What happens then?
After all discovery is complete, we will attempt to negotiate a Marital Settlement Agreement/Consent Decree. If this is not possible, then the case will be set for trial. Divorce trials in Arizona are done without a jury and are called “Bench Trials.” The Judge hears all of the evidence and then issues a “Final Judgment” in the form of a “Decree of Dissolution.”
The Petitioner is the first one to proceed and present evidence at trial. This is called “Direct Evidence.” Once the Petitioner has presented his or her evidence, the Respondent is allowed to cross examine the witness(es) regarding their testimony. After cross examination, Petitioner gets a second chance to conduct re-direct examination. Once Petitioner has presented all of his or her case, the Respondent spouse will present their evidence in the same manner. Each side has the burden of presenting to the Judge a “Preponderance of the Evidence” that their claims are justified. Preponderance of the Evidence means that the fact is more likely than not to be true.
After all the evidence is presented, the Judge may ask for closing arguments. The Judge will then normally take the case “under advisement” and issue a written ruling at a later date. The final Decree of Dissolution is the ultimate piece of paper that specifies that your divorce is final. Keep several copies available should any disputes arise in the future. The judge has up to 60 days to issue a ruling after a trial.
You are actually asking about legal decision-making and parenting time. Effective January 1, 2013, Arizona no longer recognizes the term “custody” in cases involving minor children. A.R.S. § 25-401 et. seq. has been revised to separate what once was considered “custody” and “visitation” to now be “legal decision making” and “parenting time.” Legal decision-making has to do with who makes medical, educational, religious, and personal care decisions on behalf of the minor child(ren), while parenting time has to do with where the child(ren) spends his or her time.
When awarding permanent legal decision-making and parenting time, the Court considers numerous factors as to what is the “best interests of the child.” Pursuant to A.R.S. § 25-103, it is now public policy that it is in the minor child’(ren)s best interest to have substantial, frequent, meaningful and continuing parenting time with BOTH parents and that BOTH parents should participate in legal decision-making for the child(ren). This means that it is now the Court’s starting point to award joint legal decision-making and parenting time between the parents, absent any serious fitness issues with either parent. In many cases, the spouses will have their attorney file a written agreement providing for Joint Legal Decision-Making and Parenting Time. This is normally called a “Joint Parenting Plan.” This plan helps determine legal decision-making issues and parenting time schedules (i.e., holidays, birthdays, etc.). The Court may order Joint Legal Decision-Making and Parenting Time over the objections of one of the parents. The Court may also order a legal decision-making and parenting time evaluation at the expense of the parties over both parties’ objections. Remember, the most important determination in awarding legal decision making and parenting time (either Sole or Joint) is what is in the best interests of the child.
The Court can order either party to pay child support. This is money to be used to house, feed, and educate the child. Determination of child support is based upon numbers and certain factors, and not who is the “better parent.” Child support is normally determined by specific Arizona Supreme Court Guidelines. These guidelines are based upon mathematical formulas that look at numerous factors. These factors can include the income of the parties, the amount of time spent at each parent’s residence, who pays for the children’s health insurance, and other child support obligations or support of other natural children living with a spouse. We will specifically discuss the applicability of these factors if child support is at issue.
In Arizona, “Spousal Maintenance” is not designed to be punitive in nature. Its overall purpose is to assist a spouse in maintaining the standard of living enjoyed during the marriage, and/or to assist in the transition from living together as a unit to being two independent people. Numerous factors are considered under Arizona law in determining whether Spousal Maintenance should be awarded to either spouse. Those factors are outline in A.R.S. § 25-319(A). The fact that you and your spouse may make more or less money alone does not mean someone is entitled to spousal support.
If both parties agree on an amount and length of term for spousal support, that agreement can be entered into a consent decree as part of a final order. If there is no agreement, then the issue would have to go to trial and the court will want to see evidence addressing the above factors. Evidence would include testimony, financial records, potentially medical/disability/mental health records and the like. We will specifically discuss these issues if spousal maintenance is at issue in your case.
Click here to read the Arizona maintentance regulations.
Arizona is a “community property” State. “Separate property” is retained by the owner of the property. It is the general proposition that all property and debt acquired during the marriage (which starts when you get married and ends when a party is served with the dissolution petition) through the joint resources or funds of the spouses are considered community property. This includes property acquired by either spouse outside the State of Arizona if that property would have been community property within the State of Arizona while married. It is irrelevant if only one spouse held a job during the marriage when dividing up community property. The division aims at an “equitable division,” not necessarily an “equal, down the middle” division. There is room for maneuvering property and debts to reach an equitable agreement in accordance with the parties’ wishes. If the parties cannot agree on how to adequately divide the assets, the Court can order the sale of certain assets with the proceeds to be distributed evenly.
Because Arizona is a community property state, the Court can divided equity in the house if it was accrued during the marriage and resulted in an increase in value. If the property is titled in both parties’ names, the net equity is equally divided. If the property is titled in one party’s name AND purchased during the marriage, the net equity is also equally divided. If the property is titled in one party’s name BUT it was purchased prior to marriage, you should know that there may be a community lien for contributions to the principal balance paid during the marriage as well as increase/decrease in value on those contributions and for community improvements. If there is a community lien, we will calculate that amount using mortgage statements and other records, and the total lien is then equally divided between the parties. If one party wants to keep the house, that person will need to plan to buy out the other party’s interest through an equalization of other assets or through a cash-out refinance or HELOC.
Attorney’s fees is based upon financial disparity as well as unreasonable conduct. If your spouse makes more money than you, it is possible that you could get an award of attorney’s fees. If your spouse engages in unreasonable conduct that increases your attorney’s fees costs, you could also receive an award. Rest assured Cox Sandoval Law, PLLC does always make a request for an award of attorney’s fees in your pleadings. Most attorneys do request fees as well so if you see that your spouse’s attorney asks for fees do not be alarmed. In order to get an award of attorney’s fees though, you do usually have to proceed to a trial, and sometimes the cost of going to trial does NOT outweigh the risk of or anticipated hope of getting an award of attorney’s fees. We will help you weigh the pro’s and con’s of moving forward to trial or reaching a compromise, keeping in mind that attorney’s fees may be a concern for you.
First, it would be best to contact our office immediately if this is a concern. We take your safety very seriously. If domestic violence has been committed in the past year or you have fears that it will be committed in the near future, you can apply for an Order of Protection. You do NOT need to use your attorney for this purpose. In fact, you can now obtain one online through https://azpoint.azcourts.gov/. Please know that if you seek one, you will need to be prepared to provide specific details of the alleged DV acts – and to the extent you can bullet point the date and what transpired, the petition will be easier to complete online (or in person). Any evidence you have about the DV incident(s) such as medical records, police reports, pictures of injuries or damage, audio or video recordings will also be helpful to support your petition for an Order of Protection. You do NOT need this evidence in order to ask for an Order of Protection though. It may also be granted simply based on your testimony about what has happened.