For your reference, we have answered many Frequently Asked Questions below.
What is a dissolution of marriage?Dissolution of marriage (or divorce) is a court procedure to end the marriage, provide for child custody, support, visitation, division of community property and debts, and in some cases, spousal maintenance (or alimony). Throughout this document, the words Dissolution and Divorce may be intermingled and construed to mean the same.
Residence requirement to file for divorce in Arizona:Either you or your spouse must live in Arizona or have been stationed in Arizona while a member of the Armed Forces for at least 90 days before you can file for a divorce or legal separation.
What if I do not have money to pay the filing or response fee?You may request that the Court waive or defer payment of the filing or response fees. Forms must be completed and signed by you and submitted to the Court.
What "reasons" must I have in order to get a divorce?No reasons or "grounds" are required to get a divorce in Arizona, other than one spouse’s belief that the marriage is irretrievably broken and cannot continue. If either spouse believes the marriage can be saved and is not irretrievably broken, he or she can ask for free marriage counseling through Conciliation Services.
How does the dissolution procedure work?One spouse, called the Petitioner, files a request or a Petition for Dissolution of Marriage (along with several other required papers) with the Clerk of Court and pays the filing fee. The other spouse, called the Respondent, is served with the Petition and other papers. If the Respondent does not agree with what the Petitioner has requested in the Petition, the Respondent must file a Response no later than 20 days (30 days if out of state) after he or she was served with the papers. However, if the Respondent agrees with everything contained in the Petition, then a Response is not necessary.
If the Respondent does not file a Response within the time allowed, the Petitioner can apply to the Court to proceed by default because the Respondent has not objected in writing. The Petitioner must then file an Application for Entry of Default with the Court. The Petitioner can proceed with the dissolution by default, if the Respondent does not file a Response within 10 days after the Application for Entry of Default is filed with the Court. The Respondent will not be able to participate nor have his or her desires considered by the Court in granting the Decree of Dissolution.
If the Respondent did not file a Response in time and is "defaulted," a brief default hearing is held in court in which only the Petitioner is required to be present to testify and submit the Decree of Dissolution for the commissioner or judge to sign.
At any time the spouses may agree on custody, visitation, child support, property and debt division, spousal maintenance or any of the other issues that have not been agreed to earlier. The total agreement approved and signed by both spouses must then be made part of the Decree of Dissolution and presented to the judge or commissioner for approval.
DIVISION OF PROPERTY AND DEBT:
How will our property be divided?"Community Property" is all property acquired during the marriage through the efforts of either spouse. Usually, the community property is divided equally. It does not matter that one spouse contributed more than the other. The court may, in rare cases, give one spouse more than one-half because the other has destroyed, sold, or given away community property. Further, if one spouse had property prior to the marriage, but that property has increased in value during the course of the marriage due to the efforts of either or both of the spouses, then the increase in value could be deemed community property and divided between the parties. The court may divide property by ordering it to be sold, or by splitting it between the parties.
What property is not divided?The Court cannot divide "Separate Property". Separate property consists of items owned before the marriage or received as an inheritance or gift during the marriage and kept separate during the marriage. If real estate starts as separate property but then is put in joint ownership, the law presumes that each party owns fifty percent. However, if separate property is put in a joint bank account, the Court will look to the source of the money, as opposed to the title on the account.
How will our debt be divided?Debt incurred during the marriage is presumed to be community debt. Generally the Court divides debt equally. Debt incurred by a spouse before the marriage remains the separate debt of that spouse.
What if my spouse does not pay the community debts as ordered in the final decree? Can our creditors force me to pay?Yes, a creditor can collect a marital debt from either spouse regardless of which spouse is ordered to pay the debt by the Court. The innocent spouse then has the right to recover from the obligator spouse, unless he or she files bankruptcy.
You and your spouse are responsible for community debts. The Court usually requires/orders one spouse or the other to pay certain community debts in, or through, the Decree of Dissolution or Legal Separation. A Court Order that does this is binding on the spouses only, not the creditors. You and your spouse are legally responsible for these community debts whether you are married, divorced or legally separated. These debts are matters of contract between both of you and your creditors (such as banks, credit unions, credit card companies, utility companies, medical providers and retailers). On request, the Court may impose a lien against the separate property of a spouse to secure payment of certain community debts.
CHILD CUSTODY, VISITATION, SUPPORT:
How is child custody decided?If the parents cannot agree on custody of the children, the Court will make the decision according to "the best interests of the children," taking into account many factors including where the child has been living, the child’s wishes and the mental health of the parents. The Court will not prefer a parent solely because he or she is male or female. The Court may seek the assistance of social workers and other professional persons. There is no legal presumption that sole custody or joint custody is preferable. Regardless of the type of custody arrangement ordered, both parents are entitled to have equal access to medical, school and other records of the child, unless this would put the child or the other parent in danger.
What is joint custody?Joint custody can mean joint legal custody or joint physical custody or both. Joint legal custody means that both parents make legal decisions and neither parent’s rights are superior. Joint physical custody means that the parents, in a manner that assures the child has substantially equal contact with both parents, share the physical residence of the child. There is no presumption in favor of sole or joint custody. The Court may order joint custody if both parents agree and submit a written parenting plan and the Court finds it in the best interests of the child. If the parents do not agree, the Court may still order joint custody if it determines that joint custody is in the child’s best interests. Joint custody will not be awarded if the Court finds there has been significant domestic violence.
Is there a mandatory education program regarding child custody and visitation?Yes. If there are children involved, each party must attend a court-approved parenting education program educating the parties about the impacts of dissolution and how they affect the minor children. A non-participating spouse may not be able to obtain any court relief in the dissolution process without completing the program.
Who must pay child support?It is the duty of both parents to support their minor children. Usually the non-custodial parent is ordered to pay child support. If the parents have equal time with the child and equal income, neither will be ordered to pay child support. Child support MUST be paid before any other debts. The amount of child support that will be ordered by the Court is based on child support guidelines.
Can the amount of child support ever be changed?Yes, but only if you or your former spouse can show the Court that there is a "substantial and continuing" change in circumstances. "Substantial and continuing" change in circumstances may include the obligation of either parent to support other children, additional unexpected medical or educational expenses required for one or more of the children, either a substantial raise or cut in the salary or other regular income of either parent, and/or substantial increased costs in caring for the children if the child support amount was set several years ago when the children were infants or toddlers. The support may also be changed if one of the children being supported reaches eighteen and graduates from high school or if one of the children’s custody changes to the other parent.
Can the parents agree to change the amount of support?All changes of child support amounts must be in writing, signed by both parents and approved by the Court. A Parent’s Worksheet on Child Support Amount must be completed and submitted with the change in support. The agreed upon support amount must substantially comply with the Arizona Child Support Guidelines or, if different from those Guidelines, the Court must find that the deviation is in the best interests of the child.
Do I still have to pay child support if my parental rights have been terminated by Court order?Generally, only after a child is adopted, emancipated, reaches the age of 18 years or dies does the parent’s duty to pay child support end. In addition, if a child reaches the age of majority while attending high school or a certified high school equivalency program, support continues during the period in which the child is actually attending high school or the equivalency program.
If one of our children decides to live with the other parent, does child support stop?No, child support orders do not stop until ordered by the Court. If the parents can agree to change the child support, the agreement must be in writing, signed by both parents and approved by the Court. Your verbal or written agreement, if not approved by the Court, will not necessarily end the obligation to pay for that child. If there is a dispute it is the responsibility of the paying parent to prove that payments have been made. If the parents cannot agree, then the parent who wants to stop the support payments must file a petition or motion to modify the Decree and request a hearing.
How long does child support have to be paid?Support for a child must be paid until the child is 18 years old, graduates from high school, becomes emancipated, or dies. If the child will be 18 during the school year, then support will continue until the end of that school year, or whenever the child graduates from high school, even if beyond the 18th birthday.
What if my child is disabled?If the child is disabled, child support may continue by order of the Court after the child is 18 years old.
May I move outside of Arizona with the child?If both parents reside in this state, at least 60 days advanced written notice must be provided by the parent with physical custody to the other parent before the child may be removed from the state, or more than 100 miles from the other parent. The non-moving parent can request a hearing to stop the move. A parent who has joint legal custody and joint physical custody who is required to relocate in less than 60 days after written notice, may do so ONLY if both parents agree or there is a court order.
What do I have to show to change custody?For the court to change custody from one parent to another, you must first show that there has been a "substantial and continuing change in circumstances" that has affected the child since the last custody order was entered. Second, you must show that changing custody is in the "best interests" of your child. A petition for change of custody will not be accepted unless at least one year has passed since the last custody order was entered except where the child is in danger. If, however, joint custody was ordered and the one parent has failed to comply with the terms of the order, you may file a petition for change of custody after six months have passed since the last custody order was entered. The Court reviews the petition and the response and then decides whether to reopen the case and have a custody hearing.
Is there anything that can be done if my ex-spouse has custody of our children and refuses to allow the Court ordered visitation?You can request a hearing to enforce visitation. A "conference officer" will meet with the parents, evaluate the problem and make recommendations to the Court if the parents are not able to resolve the visitation problem with his or her help. The Court can sanction a violator by awarding attorney’s fees, make up visitation, ordering counseling and imposing fines.
What is a wage assignment and how do I get one?An assignment of wages is now required for the payment of child support and in some cases for the payment of spousal maintenance (alimony). An assignment requires an employer (either a person or company) of a parent obligated by court order to pay a certain amount of child support to withhold that amount from the wages or money owed to the parent (employee) and to send that amount directly to the Clerk of Court. This type of assignment applies to salary, wages, commissions and any type of payments received by the parent ordered to pay support. Either the person required to pay support or the person entitled to receive it can request an assignment order. The law prohibits employers from firing or punishing an employee just because that person has a wage assignment.
SPOUSAL MAINTENANCE OR ALIMONY:
Will I receive spousal maintenance (Alimony)?Spousal maintenance (alimony) may be awarded in one of five situations: (1) a spouse lacks sufficient property to meet his or her reasonable needs; (2) a spouse can’t support him/herself by employment or must stay home with a young child; (3) a spouse supported his or her spouses’ education; (4) the marriage was long and a spouse has little chance of employment; or (5) Person lacks earning ability in the labor market adequate to support him/herself.
The Court considers the length of the marriage, each party’s age, health, and employment, the standard of living established during the marriage and other factors in deciding the amount and duration of spousal maintenance.
Affect of remarriage on alimony.Unless each spouse specifically agrees in writing that the alimony will continue after remarriage of the receiving spouse, the alimony will end. Remarriage of the paying spouse will not end his or her obligation.
What are "conciliation services?"Conciliation Services is a separate branch of the Court developed to assist couples in resolving marital problems and disputes over children without involving trials, lawyers and judges.
Can conciliation services help us get back together after we have separated?Yes. You can get counseling even after a petition for dissolution of marriage or legal separation has been filed.
What is the cost of Conciliation Services?All Conciliation Services are complimentary from the Courts.
What effect does domestic violence or drug or alcohol abuse have on a custody determination?Domestic violence is considered contrary to the best interests of the child. The spouse who has committed acts of domestic violence has the burden of proving that his or her continued contact will not endanger the child. Similarly, a conviction of any drug offense or certain alcohol-related driving offenses within 12 months of a request for custody will create a rebuttal presumption that sole or joint custody by the convicted person is contrary to the child’s best interests.
What can I do if my spouse (or former spouse) is violent?Prior to filing a Petition for Dissolution of Marriage, a city Court Judge or Justice of the Peace can issue an Order of Protection to prevent your spouse from harming you or the children. If a Petition for Dissolution has already been filed, then the Order of Protection must come from the Superior Court. In addition to requiring the person to stay away from you, the Court may order this person to attend counseling to prevent further violence. When the Court decides the issue of child custody, the Court will consider any evidence of spousal abuse.
When a Petition for Dissolution or Petition for Legal Separation is filed a Preliminary Injunction is automatically issued against both spouses. This order prohibits both spouses from harassing or disturbing each other, in addition to other restrictions concerning property and children.
DECREE OF DISSOLUTION:
When is my divorce final?Your divorce or dissolution of marriage is final after the judge or commissioner signs the Decree.
What is the decree of dissolution of marriage?A Decree of Dissolution of Marriage is the final order of the Court which makes each party a single person again, and includes separate orders concerning child custody and visitation, child support, division of property and debts, spousal maintenance and any other appropriate orders. A Decree of Dissolution is a court order and can be enforced just as any other order of the Court. For example, there may be civil and/or criminal penalties for the spouse who does not follow the orders included in the Decree. The Decree is an important document and should be kept in a safe place.
How long do I have to wait to get the final decree?You must wait a minimum of 60 days from the date your spouse was served with or accepts service of the Petition for Dissolution and other papers to go to court for your default hearing. If your spouse filed a Response, then there may have to be a trial.
You and your spouse may file a Stipulation or written agreement to finalize the divorce. If you do enter into a Stipulation, both filing fees and response fees must first be paid to the Clerk of Court. A Judge or commissioner must approve the Stipulation and other documents. Your final papers will be returned to you by first class mail from the Court.
EFFECTS OF BANKRUPTCY, QUITTING A JOB:
What if my spouse quits working in order to stop having to pay alimony or child support?A former spouse cannot avoid paying court ordered child support or spousal maintenance. The Court has the discretion to attribute income to a spouse who voluntarily reduces his or her income. A non-paying spouse is subject to collection remedies such as wage assignment, garnishment and contempt.
Does bankruptcy end child support?No, you cannot avoid paying child support whether current, future or past due support, by filing bankruptcy.
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