Should I be the first to file?

Why did my spouse ask for so much in the Petition? I thought we agreed on some of those things.

What are the chances my case can be settled?

May I date?

How long will my divorce take?

Do I have to go to Court?

What if my spouse does not want to give me a divorce?

What is a "process server?"

Does Arizona have Alimony?

How is spousal support or alimony paid or distributed?

What if my spouse quits working to stop his or her support?

What is joint custody?

If we do not agree on custody, what happens then?

After the Court awards Custody, can it be changed?

My ex-spouse has custody of our child(ren) and refuses to allow my Court ordered visitation. What can I do?

How does domestic violence or drug/alcohol abuse affect Custody?

I want to move with my child, what do I have to do?

How is child support determined in the state of Arizona?

Does child support exist without divorce?

If a parent remarries, how is the new spouse's income viewed for child support?

What is a child support order?

When does the court order child support?

If one parent is ordered to pay child support, where should the payment be made?

What is a wage assignment?

How does a wage assignment work?

When does a wage assignment go into effect?

What if the payor does not have a regular income?

What if the payor changes jobs?

Should a parent ordered to pay child support make payments directly to the other parent?

What if a parent moves?

What about medical insurance for the children?

Should support payment stop if visitation is being prevented?

How is support enforced?

Is child support tax deductible?

Is Medical Insurance a part of Child Support?

Can child support be modified in Arizona?

What if the percentage of annual income is not sufficient?

If the paying spouse files for bankruptcy is he or she obligated to make support payments?

Statutory Reference to Arizona Revised Statutes:

        Divorce: A.R.S. § 25-312

Property Division: A.R.S. § 25-318

Alimony/Spousal Maintenance: A.R.S. § 25-319

Custody: A.R.S. § 25-403

Non-parent Rights:  A.R.S. §§ 25-408, 25-409 and 25-415

Relocation:  A.R.S. § 25-408  http://www.azleg.state.az.us/ars/25/title25.htm

Child Support:  § 25-320; Arizona Supreme Court Administrative Order 96-29

 Residence:

Either party must be domiciled in the state for 90 days prior to the filing of the dissolution action.

 Grounds for Divorce:

Irretrievable breakdown of the marriage. 

Distribution of Property:

Arizona is a community property state.  Each spouse's sole and separate property is assigned to that spouse.  The community, joint tenancy, and other property held in common must be divided equitably without regard to marital conduct.  The court may consider excessive or abnormal expenditures, destruction, concealment, or fraudulent disposition of community, joint tenancy, and other property held in common in dividing the property.  Community, joint tenancy, and other property held in common for which no provision is made shall be held by the parties has tenants in common, each possessing an undivided one-half interest.  

Should I be the first to file?  (back to top)

That depends. In some situations, the first person to file has a choice of more than one court. In that case, your lawyer may have a preference about which court would be best for you. Otherwise, it doesn't usually matter who files first. Since Arizona is a no-fault state you do not need to have any "grounds" for filing, but must merely state that the marriage is irretrievably broken.

Why did my spouse ask for so much in the Petition? I thought we agreed on some of those things.(back to top)

Before knowing what the issues will be and what might happen under the law and the facts of the case, no one wants to take the chance of asking for too little. So people tend to ask for more than they really expect. Like when you read in the newspaper that someone has filed a "10 million dollar lawsuit,” what is demanded in the Petition or Complaint usually has little real meaning.

What are the chances my case can be settled?(back to top)

Most divorce cases are settled.

May I date?(back to top)

Generally the court is not concerned with your private life. However, dating someone else may anger your spouse and impede settlement. If you have children, you should get some professional advice about how much your children should know about your love life.

How long will my divorce take?(back to top)

That depends on a lot of things. Every divorce is different. Factors that can make a difference include the schedules of both parties, both lawyers and the court, the cooperation of witnesses, the speed of the appraisers, and the complexity of the case. In Arizona it will take a minimum of approximately three months, and that is if both parties agree on all of the issues at the onset of the case.   This estimate varies with each individual case. The simplest case is based on if the divorce is by Default (where the other party does not respond). Default divorces take about 85 days. If the case is by Stipulation (where both parties agree on all terms), the proceedings can take only about 75 days. But if the divorce is contested (where one party disagrees with the other), it can take several months or more.

Do I have to go to Court?(back to top)

If it is a Default divorce, only the party who filed the divorce papers (the Petitioner) will have to go to court for a quick hearing. If it is by Stipulation, usually neither party will need to appear in Court. A contested divorce, if it remains contested and the parties cannot mutually agree, the divorce will end up in the Court.

What if my spouse does not want to give me a divorce?(back to top)

Arizona is a "no fault" state. The requirement for divorcing is that the marriage is irretrievably broken. The person filing for divorce will generally have to take a few additional steps if the other party contests the divorce, but will eventually get a divorce. Over 70% of all divorces in Arizona are uncontested.

What is a "process server?"(back to top)

A process server is an Officer of the Court, licensed by the Superior Court of Arizona

He or she delivers (serves) the legal documents to the party being served with the divorce papers (the Respondent). The process server then files a "proof of service" with the court, certifying that the other party has received the divorce papers and been properly noticed. This method insures the proper notification of the Respondent, and does not require cooperation or signature of the Respondent.  

Alimony/Spousal Support:

Does Arizona have Alimony?(back to top)

Yes. Alimony or spousal support may be awarded to either spouse for their support after the divorce. Alimony payments are designed to help with financial obligations of the receiving spouse and to maintain a similar lifestyle. The lifestyle can not remain the same due to the paying spouse typically having to maintain two households for a period of time. Since a majority of spouses both work rewarding alimony is not extremely common although it does exist. Most of the time alimony is rewarded for a short period of time just to help the receiving spouse get on his or her feet again.

        Maintenance may be granted to either spouse if the spouse seeking such maintenance (1) lacks     sufficient property to provide for his/her reasonable needs; (2) is unable, through appropriate employment, to provide self-support, or is the custodian of a child at home; (3) contributed to the educational opportunities of the other spouse; (4) had a long marriage and is of an age that may preclude employment.

        Maintenance, if awarded, must be for an amount and period deemed just, without regard to marital fault, considering (1) standard of living during marriage; (2) duration of marriage; (3) age, employment history, earning ability, physical and emotional condition of recipient spouse; (4) ability of obligor-spouse for self-support while meeting needs of other spouse; (5) comparative financial resources and earning abilities of spouses; (6) contribution of recipient-spouse to earning ability of obligor-spouse; (7) extent to which recipient-spouse has reduced income or career opportunities for benefit of other spouse; (8) ability of both parties after dissolution to contribute to future educational costs of their children; (9) financial resources of spouse seeking to meet needs independently; (10) time necessary to acquire sufficient education or training to enable party seeking maintenance to find appropriate employment; (11) excessive or abnormal expenditures, destruction, concealment or fraudulent disposition of community.

How is spousal support or alimony paid or distributed?(back to top)

There are several factors to be considered based upon the current laws:

• The advantages and disadvantages of lump-sum settlement.
• The amount of such payment and the method it will be paid (cash, property).
• Will it be paid in installments?
• Conditions attached to paying and receiving (disability, death, remarriage, cohabitation).
• Terms arranged to provide enforcement measures.
• Tax effects of proposed arrangements.
• The effects of will and inheritances.

Unless each spouse agrees, in writing, that the alimony will continue after the party remarries, the support will end. Remarriage of the paying spouse will not terminate his or her obligations of support.

What if my spouse quits working to stop his or her support?(back to top)

A former spouse cannot terminate his or her support by simply "quitting" their job. The court has the discretion to attribute an income to a spouse who voluntarily quits working or reduces his or her income.

Child Custody/Visitation:

There is a growing presumption in favor of joint custody, although no such presumption has yet been codified by the Arizona Legislature.  Joint custody may be granted if both parents agree, the parents submit a parenting plan, and the order is in the child's best interests.   Evidence of domestic violence must be considered as contrary to the best interests of the child. 

In deciding custody/visitation, the court shall make an order based on the best interests of the child, considering: (1) the wishes of the child's parents; (2) the wishes of the child; (3) the interaction among the child and relatives; (4) the child's adjustment to school, home, and community; (5) the mental and physical health of the parties; (6) which parent is more likely to involve the child in the life of the other parent; (7) if either parent has been the primary care giver; (8) the nature and extent of coercion used by a parent in obtaining a written agreement regarding custody; (9) whether either parent has complied with an order to attend domestic relations education.

        Non-custodial parent is entitled to reasonable visitation, which shall not be restricted unless the   court finds serious endangerment to the child. 

What is joint custody?(back to top)

Joint custody can mean either joint legal custody or joint physical custody. Joint legal custody means that both parents share in the legal decisions for the child(ren). Joint physical custody means that the physical residence of the child(ren) is shared by both parents. The Court will order joint custody only if both parents agree in writing and the Court finds it in the best interest of the child(ren). Joint custody will not be awarded if there is shown a history of significant domestic violence.

If we do not agree on custody, what happens then?(back to top)

The Court will take into account many of the factors including where the child(ren) have been living, the child's wishes and the mental health of the parents, and make a decision based on the "best interests of the child(ren)." The Court may also seek the advice from other relevant professionals.

After the Court awards Custody, can it be changed?(back to top)

It must be shown that a "substantial and continuing change in circumstances" has affected the child(ren) since the Court order was set. Also, it has to be shown that the change in Custody is in the best interest of the child(ren). At least one year has to have passed since the original award was ordered to be able to request a change with the Courts, except if the child(ren) is in danger. The only exception is when a parent has failed to comply with the order. A request can then be filed after six months have passed since the custody order was awarded. The Court has the right to decide whether or not the case should have a new custody hearing.

My ex-spouse has custody of our child(ren) and refuses to allow my Court ordered visitation. What can I do?(back to top)

You can request a hearing to enforce your ordered visitation. In some instances you may be entitled to missed visitation with your child(ren), ordered counseling and possibly even attorneys fees for the enforcement of the Court ordered visitation.

How does domestic violence or drug/alcohol abuse affect Custody?(back to top)

Domestic violence is viewed as contrary to the best interests of the child. The parent who has committed the acts of domestic violence has the sole burden of proving that his/her contact with the child(ren) will in no way endanger the child. Also, any conviction of any drug offense or certain alcohol-related driving offenses within 12 months of a custody request will create a presumption that the custody should be awarded to the spouse in the best interests of the child(ren).

I want to move with my child, what do I have to do?(back to top)

Typically, if both parents live in Arizona, the spouse changing residences must give advance written notice if the relocation is further than 100 miles from the other parent. The non-moving parent has the right to request a hearing to stop the move. A parent who has joint legal and joint physical custody, who is required to relocate in less than 60 days after written notice, may ONLY do so if both parents agree or a Court order is issued.

Child Support:

        Child Support Guidelines may be found at Supreme Court Administrative Order 96-29, as appendix to Ariz. Rev. Stat. § 25-320, et seq.  Guidelines are based on Income Shares Model, and award is calculated on gross income.  Support terminates at age 18, or until the child graduates from high school.  The court may not order the parents to pay for the college education costs of the child. 

How is child support determined in the state of Arizona?(back to top)

Arizona, like most states, has guidelines for determining the amount of support that should be provided for a child or children. The guidelines have a percentage of annual income in relation to how many children. It is not uncommon for parents to agree on the amount of child support. If they cannot, the court will use the guidelines in determining the amount. If you are contemplating divorce and need to determine how to calculate your child support, please click here.

Does child support exist without divorce?(back to top)

Arizona will allow a parent to file for custody and visitation rights without a legal divorce, so support can be issued. Temporary custody must be decided prior to filing a petition for support. In this situation both parents have an equal right to have the children live with them, unless records show past abuse.

If a parent remarries, how is the new spouse's income viewed for child support?(back to top)

If the new spouse has an income, it is not considered for support, because he or she has no legal attachment to provide support to a child. The additional income may allow the supporting parent to spend less, so more money might be available for the monthly support payments.

What is a child support order?(back to top)

This is a written order form the court that states:  which parent must pay child support; the amout of the payment; how often the payment must be made; and, who received the child support payment for the children.

When does the court order child support?(back to top)

       If a parent request, the court may order child support when:  married couples are divorcing or separating; unmarried couples are breaking up or separating; an unmarried parent who has never lived with the other parent requests child support.  Note:  If a parent is unmarried, in most cases paternity must be established before child support can be ordered.

If one parent is ordered to pay child support, where should the payment be made?(back to top)

       In most cases, the court will instruct the payor (obligor) to send the child support payment to the Arizona Support Payment Clearinghouse.  The payment will be recorded and a check issued to the payee (obligee).  If the payor is employed, the payments will eventually be processed by wage assignment.

What is a wage assignment?(back to top)

       A wage assignment is another term for what the law calls an Order of Assignment.  A wage assignment is ordered in every case and is an easy, convenient way for the payor to make a child support payment.  The assignment instructs an employer to automatically deduct child support from a paycheck.

How does a wage assignment work?(back to top)

       The court sends a copy of the wage assignment instructing an employer to deduct child support from a paycheck.  The employer must send the payment to the support payment clearinghouse within two business days of the date the employee is paid.  The support payment clearinghouse records the payment, and mails a check to the payee.  A wage assignment also may be issued by the state child support enforcement agency if the agency is providing services in a particular case.

When does a wage assignment go into effect?(back to top)

       There can be a delay of up to a month or longer, while the wage assignment is being processed.  Until the wage assignment is in effect, the payor must make payments directly to the support payment clearinghouse.  Once the wage assignment has been processed by the employer, payments will be handled automatically.

What if the payor does not have a regular income?(back to top)

       If the payor is not employed, or does not have a regular source of income, the convenience of othe wage assignment process cannot be used to make child support payments.  The payor must make payments directly to the support payment clearinghouse.

What if the payor changes jobs?(back to top)

      When starting a new job, the payor must:  give a copy of the wage assignment to the new employer; and, within ten (10) days, notify the Clerk of the Superior Court and the support payment clearinghouse in writing of the new employer's name and address. 

       Until a wage assignment is in effect, the payor must make payments directly to the support payment clearinghouse.  Once the wage assignment has been processed by the employer, payments will be handled automatically.

Should a parent ordered to pay child support make payments directly to the other parent?(back to top)

       No.  If the parent does not send payments through the support payment clearinghouse, the court may consider those payments as "gifts" and may not credit those payments toward the child support obligation.  Also, making payments to the support payment clearinghouse provides a permanent record.

What if a parent moves?(back to top)

       The moving parent must inform the Clerk of the Superior Court and the support payment clearinghouse of the new address in writing within ten (10) days after the move.

What about medical insurance for the children?(back to top)

In Arizona, this issue is typically addressed and taken care of in the Marital Settlement Agreement. It is important for the child or children to have coverage during the divorce process. A decision is made between the two parties, but it is the responsibility of the parent who can provide coverage due to his or her employment.

Should support payment stop if visitation is being prevented?(back to top)

No, unfortunately each is a legal duty of its own. If a parent is deprived of visitation, he or she must still provide support. Visitation and nonpayment of support must be petition in court separate.

How is support enforced?(back to top)

It varies in each state. Payment of support has become an increasing problem, so there have been many recent steps taken to enforce the payment. Wage assignment programs have been established, which immediately deducts any support payment from the supporters paycheck, before he or she receives it.

Is child support tax deductible?(back to top)

The amount of support declared at the date of settlement is not considered income for the parent who receives it, therefore the support amount can not be deducted as an expense for federal income tax purposes.

Is Medical Insurance a part of Child Support?(back to top)

The medical insurance for any minor child is to be awarded with child support. It is not always the non-custodial parent that is responsible. Presently the court looks to the parent with the best plan at the lowest rate.

Can child support be modified in Arizona?(back to top)

Arizona will allow for the modification of child support as long as a substantial change has occurred and the change is not something that has been previously addressed. The change will typically be associated with living arrangements and income.

What if the percentage of annual income is not sufficient?(back to top)

If it is not there the Arizona court system can not make it appear. This is a problem that is quite common. The amount of support is not enough, because sometimes the paying spouse is hiding income. Most of the time a good way around this dilemma is to petition the court for support for other things like education costs.

If the paying spouse files for bankruptcy is he or she obligated to make support payments?(back to top)

Yes. The federal law does not allow any child support or alimony payments to be discharged. Basically the paying spouse is responsible for support for the time period stated in the order, unless modification of some sort is made.