Getting Started -- Things to know at the beginning.
Children - Custody and money considerations.
Property, Debts & Alimony -- Dealing with money issues.
Costs & Fees -- How much will it cost?
Miscellaneous Issues -- Everything else you need to know.
Resolutions & Approaches -- Alternatives to litigation.
Choosing A Lawyer -- How to pick a skilled lawyer.
After August, 1998, the State of
When a Covenant Marriage is chosen, a divorce may only be granted after certain conditions are met. These conditions are not generally required in order to get a divorce from a non-Covenant Marriage. Broadly stated, these conditions include:
One party committing adultery.
One party being convicted of a felony.
Physical or sexual abuse by one spouse against the other or against a child of the parties.
Abandonment of the home for at least one year.
Separation of the parties for at least two years.
Regular abuse of drugs or alcohol by one spouse.
Both parties agree to the divorce.
For more information about Covenant Marriages, click here .
Grounds for Divorce:
The sole grounds for divorce in
In a legal separation, the property and debts are divided, custody and child support issues resolved, spousal maintenance and attorney’s fees are provided for, and all other issues normally addressed in a divorce are resolved. The only difference between a divorce and a legal separation is that the parties remain married, however, they usually live separate and apart from each other. Legal separations are a rare exception, and are generally used for religious purposes, or when parties are not certain that they are prepared for a divorce.
An annulment is allowed upon a showing that the marriage is “null and void” due to some impediment that prevented the marriage from legally taking place. Annulments are very difficult to obtain, and they result in the conclusion that the marriage never took place.
For a divorce to occur, one or both of the parties must have lived in the State of
An actual separation of the parties is not a requirement to obtain a divorce in
If a spouse is physically abusive, an Order of Protection can be obtained either before or after filing for a divorce. You do not need to file a divorce action to obtain an Order of Protection. For more information, click here.
There is no legal significance associated with the first person to file for the divorce. While pride or ego may prevent the filing, there is no legal reason to wait. In fact, there are times when a race to the courthouse is preferred.
Decision Making (Custody):
On January 1, 2013, Arizona replaced the well known term "custody" with the new term "decision making." Decison making can be joint or sole, and neither term necessarily limits actual "parenting time" (previously "visitation").
“Joint decision making” means that both parents share major decisions, and neither has superior rights to the other. Even so, one parent may have the children more time than the other parent. In either case, the parties make major decisions (education, non-emergency medical and religion) together.
“Sole decison making” means that one parent makes the major decisions, however, this designation does not necesarily have any impact on the other parent’s actual time with the children. For example, parenting time could be equal, however, only one parent will make the major decisions.
Disagreements over custody, parenting time, and other aspects of the children can become bitter contests, and expensive. The court will generally require both parents to attend mediation to discuss settlement of these issues. If they cannot be resolved at that level, custodial evaluations will generally be ordered, and a judge will then decide all unresolved issues.
Parent Information Classes:
In any divorce involving minor children, even if all aspects of the children are agreed to, both parents must attend a Parent Information Class within 60 days of filing for divorce. A list of court-approved classes will be provided to both parties. For a list of such classes, click here.
Termination of the Marital Community:
Generally speaking, on the date either party is served with divorce papers (or accepts service), the marital community legally ends. Property acquired after the date of service, and wages earned after that date, are then presumed to be the separate property of the acquirer or earner. The same is true with community debts, in that generally the person incurring the debt will be responsible for it.
There is no single, easy way to determine how the parties should divide their community property. “Community property” is loosely defined to mean those assets acquired during marriage, usually with monies earned during marriage. It is helpful to clearly define the property, value it, and then discuss alternatives to dividing it. In any event, the law requires the division to be “equitable,” and this is usually presumed to be equal. If the parties cannot agree how to divide their property, the court will divide it for them.
Debts acquired during the marriage are presumed to be “community debts.” These debts are generally divided equally, however, one party or the other may assume a greater amount of debt in exchange for a greater amount of property. If the parties cannot agree as to how to divide the debts, the court will order a certain division.
It is very important to understand that if the parties agree on how to divide the debts, or if the court divides the debt, the mere fact that one party is to pay the debt does not necessarily relieve the other party from responsibility to the creditor. For example, if during marriage the parties jointly borrowed money from the bank, and one party is to pay it back, and if the paying party fails to do so, the other party could be sued by the bank for the obligation. A third party creditor (the bank in this case) is not bound by the terms of the divorce Decree.
Spousal Maintenance (Alimony):
Either spouse may be awarded spousal maintenance (alimony) for a period of time following the divorce. There are numerous and specific factual and legal criteria for both the entitlement, and the amount and duration of such payments.
The parties may agree on all aspects of these payments or the court can decide for them. Lifetime payments are rare, but not impossible.
While the divorce action is proceeding, which can take many months, a set of interim rules is necessary. If the parties cannot agree as to custody, visitation, child support, how income is divided, how debts are paid, whether spousal maintenance (alimony) is paid, who resides in the residence or drives the family automobiles, the court will decide for them. These Orders remain in effect while the divorce is pending, and are generally entered on a shorter time schedule, with an abbreviated proceeding.
Court Fees and Costs:
The court charges both parties a filing fee. If depositions, subpoenas, investigations, evaluations, and the like, are necessary, those costs, which are at times significant, are generally paid by the party seeking the item or service. Under certain conditions, these costs may be reallocated to the other party at the discretion of the judge.
The exact attorney’s fee for a divorce varies widely. A basic, uncontested divorce (where both parties agree to all issues) still includes the preparation and filing of numerous documents. While this is the least expensive means to a divorce, these fees can still run into the thousands of dollars, plus court fees and costs.
Contested divorces have virtually no limit as to their attorney’s fees and costs. Discovery (subpoenas, depositions, interrogatories) is very expensive, expert witnesses charge independently, business and real estate evaluations can run into the thousands of dollars, and child custody matters can be exceptionally expensive. Most attorneys and experts bill by the hour, and the more time they invest in your case, the more expensive it will be.
Most attorneys will require that a retainer fee or advanced fee be paid. In many cases, these fees will need to be replenished on a regular basis (usually after an attorney bills). At times, a specific trial retainer will be necessary if the case is proceeding to trial. The client is initially responsible for their own attorney’s fees, however, under certain circumstances, the judge can assess part or all of these fees against the other party. For more information, see "Choosing A Divorce Attorney," below.
Using a Single Lawyer:
It is impossible for an attorney to ethically represent both parties in a divorce action. There is an inherent conflict of interest in these situations. While it is not necessary for both parties to have attorneys, it is usually preferable. Your attorney cannot give legal advice to your spouse, although they are bound to deal fairly with them.
You may reconcile with your spouse at any time. In these cases, the divorce action is generally placed on “hold,” to allow the parties an attempt to complete the reconciliation. While this cannot go on forever (and the court will ultimately dismiss the divorce case), the delay is a good means to see if the reconciliation will work out. Family Law attorneys will almost always encourage legitimate attempts at reconciliation.
Change of Wife’s Name:
At the end of the divorce action, the former name used by the wife may be restored to her at her option. If this is desired, it should be added to the Decree prior to the judge’s signature.
Once the parties have settled their case, or the court has ruled, a Decree will be prepared. The Decree is finalized once the judge signs it and files it with the Clerk of the Court. Until the Decree is signed and filed, you are still legally married.
It is generally every attorney’s preference to resolve a case without litigation. In fact, most family law attorneys are settlement driven, and will seek every viable alternative available to avoid litigation.
Your attorney may talk to you about "alternative" means to resolve your case such as mediation or the use of a Family Law Master. Mediation allows the two parties to attempt to resolve their case by settlement and agreement. A Family Law Master acts as a quasi judge to resolve cases in a much less formal atmosphere than a courtroom.
As a general rule, alternative methods ultimately cost less to resolve your case. A time-table can be set and maintained by the parties rather than the court, and in many case, the divorce process will take less time. Because these proceedings are less formal, they are less stressful, and more apt to not have the typical fallout, anger and frustration that results from litigation.
Everyone has well-meaning friends and relatives who will offer advice about anything, including your divorce case. In most instances, this advice is not accurate, does not apply to your situation and/or does little other than to inflame the situation. The facts surrounding your marriage, and divorce, and its particulars, are unique to you, and it is virtually impossible to compare one divorce to another.
While talking to friends and family members can be beneficial, and provide alternative insight to your thought process, you should devote your energies to reading books and articles on the topics from more learned individuals that have greater experience. You should also rely on your attorney’s wisdom and guidance.
Try to keep an open line of communication with your spouse, and more importantly, maintain a professional and courteous relationship with them. One thing that is for certain, without this, animosity and hostility will escalate, and this will do little other than cost a great deal of money and aggravation.
Your divorce attorney is the expert you will rely on to help you make the best decisions about your case, and provide you the means toward the end whether by settlement or litigation. The attorney can be involved in every aspect of your case, or hired to work with you on a limited basis (for example, to merely draft settlement documents). The relationship, however, is usually lengthy and complex.
How you hire your divorce attorney should be more than choosing an ad from the Yellow Pages or doing a Google search. Similarly, hiring the lawyer that helped you negotiate your business lease or draft your will could be an equally large mistake. Here are several key elements to look for in a divorce attorney:
· You need to hire an attorney experienced in family law. In Arizona, family law attorneys can be Certified Specialists. The Arizona State Bar issues this designation, and to be certified, the attorney must have significant trial and settlement experience, and pass a rigorous test. To maintain the certification, the attorney must receive substantial continuing education in family law each year, and be subject to ongoing peer review. This type of family law attorney tends to charge more, and demand higher retainers to begin a case, but almost always is more experienced than the typical attorney handling the occasional family law matter.
· Is the attorney in the American Academy of Matrimonial Lawyers? This is a national organization that accepts only the best family law attorneys in America. AAML attorneys are clearly the most qualified practitioners in the field. There are only 22 practicing attorneys in Arizona with this exclusive designation.
· Look for additional “special” designations that set the attorney apart from other attorneys. For example, are they listed in Best Lawyers in America and Super Lawyers? Do they carry A-V Pre-eminent ratings? Does the lawyer act as a judge pro tem, and have experience acting as a judge? All of these show much greater involvement and skill in the field of family law than the typical attorney.
· Does the attorney speak directly and clearly? Look for an attorney that speaks to you, not at you or above you. Plain English, not legalese, is the key.
· The attorney should be someone you trust and feel comfortable with. You will need to reveal highly personal information about yourself and your marriage, and you need to be at ease in doing so.
· If you have children, look for an attorney who makes it clear that during your divorce, you must put your children’s needs first, and that the attorney will not pursue unreasonable demands for child support, or help you pursue vindictive child custody and visitation positions. The attorney must help guide you, and keep you on track toward a fair and meaningful outcome that is in the best interests of the children.
· Make certain your attorney is affordable. It is a terrible situation to separate from your attorney because you cannot continue with them for financial reasons. In short, do not hire an attorney that you cannot afford.
Skills and Experience:
The adage “There are horses for courses” is most applicable to divorce attorneys. In other words, when you select a family law attorney, you want one with the legal skills and knowledge needed to get your divorce done quickly, efficiently and affordably.
If your case is likely to settle, or if you need help negotiating your divorce agreement, the ideal attorney is a problem solver, works well with people, is adept at compromise, and is comfortable in court if need be. Although you and your spouse may have no intention of going to court, your attorney’s trial skills, record and history of success in court can have some bearing on their ability to negotiate a settlement for you. In other words, if your attorney is known for not going to court, or known to possess weak court-room skills, they will not have the same negotiating power as does a lawyer willing to go to court if required.
If you know from the start that your case is headed for court, you should consider selecting an attorney more known for their trial skills. It is not to say that all trial attorneys lack negotiation and settlement skills, but trial attorneys generally proceed on a different course of action from the start of the case. This action can be expensive, and polarizing to the parties, and requires a different mindset early on.
It is helpful if your attorney is familiar with the trial judges that may be hearing your case. Although the concept of favoritism is unlikely, knowing the style of the judge, and how they previously ruled on similar issues, can be useful information when evaluating your case and presenting it.
Do not base your decision on hiring an attorney on which one has the nicest office. At the same time, do not assume that if you pay a lot of money to the attorney that they are the most skilled. Also, do not let the lawyer’s physical appearance influence your decision (although much can be said for the “first impression,” remember that the skilled attorney has been around for a while, and the judges and other lawyers that he will be dealing with are past those impressions, and know the lawyer for their skills, honesty and ability rather than their looks).
If your divorce is financially complex, look for a lawyer with a business, financial, accounting and tax background. Alternatively, make certain that the lawyer is well versed in these areas, and that they have a solid understanding of the complexities of your case. The lawyer should have easy access to accountants, appraisers, evaluators, and other experts to help present your case in court if needed. Remember, negotiating your divorce settlement is as much about financial matters as it is about ending your marriage.
If your divorce is going to require child custody complexities, seek an attorney qualified to deal with those issues. Backgrounds in psychology, child development and counseling/social work can be important. Similarly, the ability to use experts to perform evaluations, establish positions, and guide the attorney to the presentation of what is “best for the children” is a critical element to look for.
It is often wise to ask around when looking for a family law attorney. Even though it may be costly, consider interviewing several lawyers before choosing one. Family, friends and business associates often have used divorce lawyers, and can help to give you specific referrals. Do your homework. Arizona State Bar Certified Specialist, Fellows in the American Academy of Matrimonial Lawyers, and those listed in Best Lawyers in America and Super Lawyers, have reached those positions for a reason. In essence, use a multitude of avenues to seek out the right person for your case.
If you are relying on an attorney to do more than simply review your divorce paperwork, you must be prepared to share details about your personal life, marriage and finances. Therefore, you must feel comfortable with whomever represents you. In addition, your attorney should share and support your basic philosophy or attitude toward your divorce. For example, if you want to keep things as calm, cooperative and non-adversarial as possible, then avoid attorneys who like to “go the jugular.”
Do not confuse your attorney with your therapist or religious advisor. While your attorney may be “street smart” and informed from their years of experience, they are not sufficiently trained to replace experts in the area. While talking to the attorney can be helpful, enlightening and soothing, it is not a substitute for serious professional help that you may need.
If you do not have much money to spend on legal help, you may need to hire a relatively inexperienced lawyer instead of a seasoned professional. New attorneys tend to cost less than lawyers who have been practicing law for many years and already have solid reputations. However, working with an up-and-coming or novice attorney may have a potential advantage in that the young attorney may be willing to work a little harder for you.
Most family law attorneys bill for their services on an hourly basis. Few attorneys will agree to a flat fee based on the total amount of time and labor they think your divorce requires. Estimating up-front just how much time is necessary to finalize your divorce is difficult because no lawyer knows exactly how any divorce is going to play out.
You are more apt to find an attorney who will take your case for a flat fee if your divorce is 100% amicable, and if the tasks the attorney will perform are very well defined. You may be able to find an attorney willing to accept a flat fee if your legal needs are very specific and limited such as merely needing paperwork drafted. This is referred to as “unbundled legal services,” and many younger lawyers are willing to assist in this area.
The hourly rate charged by attorneys varies greatly. Paying more per hour does not necessarily mean more skills and ability. Conversely, a less expensive attorney may not turn out to be cheaper in the long run if it takes them more time to learn a skill or perform a task than the seasoned lawyer.
Do not be afraid to question the lawyer about fees. Make sure you have a thorough understanding about all charges that you may incur. Have the attorney explain their practices and policies about charges (e.g. billing for actual time spent vs. fixed times/fees for certain activities), and their use of para-professionals, associates, outside labor and the like to reduce costs. Read the Fee Agreement carefully, and question those items that you do not understand. The time to resolve and understand your financial commitment is before the representation begins.
For more detailed information on any of the above topics, please see the Resource Section.
Every effort has been made to assure the accuracy of the information contained above. Since there is no attorney-client relationship established, and since the specifics of each individual case can impact the above, the information herein should not be relied upon as specific advice for your personal case.