Divorce - Contested & Uncontested Legal Separation Spousal Maintenance/Alimony Property, Asset & Debt Division Child Custody/Parenting Time Child Support Paternity Move Away/Relocation Post Decree Issues Enforcement of Court Orders Set Aside of Judgements Premarital/Postnuptial Agreements Mediation Estate Planning, Wills and Trusts Probate/Estate Litigation Guardianship/Conservatorship Adoptions Termination of Parental Rights Co-Habitation Rights Restraining Orders Parenting Time Coordination Best Interest Attorney for Children Child’s Attorney Court Appointed Advisor Divorce - Contested & Uncontested Divorce or Dissolution of Marriage A divorce proceeding is the legal operation that ends a marriage and returns the parties to the status of single persons. In Arizona, a Decree of Dissolution must be signed by a judge and filed with the Court to finalize a divorce. The issues that are usually addressed and included in the terms of the Decree, along with jurisdictional issues, are as follows: child custody, parenting time and both child support and spousal maintenance, division of property and debt, name changes and other agreements of the parties related to the above factors. Parties choose the manner in which they would like the divorce handled. Uncontested Divorce If the parties are in agreement as to all of the terms, they can complete the divorce without going to Court. Default Decree of Dissolution This type of divorce happens when only one party is participating in the legal process. When there have been no responsive pleadings entered in the matter that oppose the requests of the original petition for divorce, an entry for default may be granted by the Court and the petitioning party can enter a Default Decree of Dissolution that ends the marriage. Contested Divorce If there has been responsive pleadings filed with the Court, and the parties are unable or unwilling to work together and reach a compromised settlement as to the issues of the case, then the parties have the option to seek the Court’s assistance in deciding issues of the case. In such a case, the parties may go to Court for temporary orders related to parenting time, living arrangements, finances and sometimes, depending on the circumstances, property division, prior to the Decree being entered and the marriage ended. Even in a contested scenario, the parties are encouraged by their lawyers, the Court and public policy to attempt to settle the matter prior to a trial on the issues. The following are methods in which the parties may attempt to settle the matter prior to trial. Court of Conciliation As to issues related to child custody and parenting time, the Court mandates that the parties enter into mediation with the Court of Conciliation in an attempt to settle the issues related to the children. Settlement Conference Another event aimed at reaching settlement is the mandatory pre-trial settlement conference. This is where another family lawyer acts as a “pro-tem” judge to assist the parties and their counsel in one last attempt to settle the matter prior to trial. Many cases are completed at this juncture; however, sometimes some or all remaining issues must be litigated at a family law divorce trial. The trial is where each party has a chance to tell their side to the judge. Their positions are supported by testimony provided by the parties and their witnesses. The witnesses may be professionals, friends, family or people with important information to the case. In addition, other information may be given to the Court in the form of documentary evidence. Legal arguments may be made before, during or after testimony is presented. After all of the evidence is presented to the Court, the judge will look at both parties’ evidence and testimony, and make an order that he or she finds fair and equitable given the facts presented and the law. [Back to Top] Legal Separation Essentially, a legal separation is a divorce, without the divorce (click here to get the description of the divorce process). What we mean is that, in a legal separation, all property is separated and debts are allocated. Custody, parenting time and support are determined. Spousal maintenance may be awarded as well. The single difference is that the parties remain married and cannot remarry. All other aspects of the case, including whether the legal separation is contested or not and the mechanisms in place if litigation is unavoidable are the same as in a divorce proceeding. [Back to Top] Spousal Maintenance/Alimony In some cases one party in a divorce or legal separation may be entitled to an award of spousal maintenance. The parties can agree on spousal maintenance, but this is usually a highly litigated issue. While this is a financial consideration for the Court (i.e., a comparison of the parties’ ability to maintain themselves financially after the divorce is final), other factors are considered by a Court in its determination of whether alimony is appropriate. Spousal maintenance can be temporary, for a fixed time or permanent, depending on the particular facts of the case. [Back to Top] Property, Asset and Debt Division In most divorce cases, parties have property to be divided. It might be as simple as items in the house and furniture. On the other hand, there may be complex financial holdings, retirement accounts, pensions or business interests that must be analyzed. The parties may own a house that has equity that must be divided. Or there may be outstanding debt that would have to be allocated to each of the parties. Property and debt division is a matter that requires case by case analysis. [Back to Top] Child Custody/Parenting Time There are two types of custody - legal and physical custody. Legal custody can be either joint custody or sole custody. In the case of joint custody, the parents each participate in the major decisions related to the child, such as choices related to medical, educational and religious topics. In a sole custody arrangement, one parent makes all major decisions related to the child. Physical custody determines who is providing care for the children. In other words, which parent is the predominant caregiver. In the case where the parents have equal time with the children, physical custody is “shared.” Parenting Time is the actual schedule in which the parents “share” the children. [Back to Top] Child Support Child Support is determined by a complex calculation provided by Arizona Law. While there is some wiggle room for deviation in child support if the parties agree or by a determination of “good cause” by the court, for the most part, it is a standardized calculation. The factors that the Court looks to in determining child support include the parties respective gross incomes, how many children the parties have in common, if the parties have other minor children living with them from other people and if they are receiving support for that child, if the children are over the age of 12, parenting time awarded to the parties and other financial determinations such as costs for health insurance, daycare or the needs of extraordinary child and other factors. Other issues addressed by the child support order can include unreimbursed expenses related to medical needs of the children and allotment of tax exemptions and travel expenses if the parties live in separate states. [Back to Top] Paternity Paternity actions are cases where the parties were not married when the child or children were born. Arizona law does not recognize parentage automatically in the case of an unmarried couple. More specifically, the father must establish the legal right of parentage of a child. Unless paternity is established, child support, custody and parenting time cannot be ordered. [Back to Top] Move Away/Relocation In the case where a parent wishes to relocate from Arizona (or to a location more than 100 miles from the other parent) with the parties’ children, either express permission or a court order must be attained. In addition, the moving parent must provide the other parent a 60 day written notice, delivered by certified mail, of that parties’ intent to relocate. Under certain conditions, the Court may allow a party to “temporarily” relocate with the children prior to the 60 day requirement. [Back to Top] Post Decree Issues These types of issues revolve around changes in custody, parenting time, child support and spousal maintenance that are necessary after the Decree of Dissolution is entered or paternity is established. [Back to Top] Enforcement of Court Orders When an order is entered, each party may be required to act, or refrain from acting, in certain ways. For example, a party may be ordered to pay child support, or divide property in a specified way. In the event that a party fails to comply with an order of the court, the affected party can ask the Court for assistance. The noncomplying party may be held in contempt or have other sanctions levied against them, such as being ordered to pay the moving party’s attorney’s fees. [Back to Top] Set Aside of Judgements Under certain conditions, a judgment, order or Decree can be “reversed” or set aside. There are complex legal reasons that must be proven to secure a “set aside” of a judgment. Factors include fraud, surprise, misrepresentation, time constraints and others. [Back to Top] Premarital/Postnuptial Agreements Sometimes, people entering into a marriage may want to protect certain assets or secure defined outcomes in the case a marriage fails. Parties can enter into agreements both before they are married and, in some cases, after they enter into marriage, to define each party’s property holdings. Other areas that may be defined include how and if the parties will acquire property; if Arizona’s community property laws will apply or how, and predefine spousal maintenance. Be aware that agreements of this kind can be scrutinized if not prepared correctly or if the terms are “unconscionable.” [Back to Top] Mediation This is a method of solving problems where a neutral person assists parties in resolving their issues in a nonconfrontive, sensitive manner, without judicial intervention. Mediation is an extremely effective and powerful tool for people to learn how to “hear” each other’s underlying concerns, and to minimize the stress that usually accompanies family law conflicts. Any issue that does not include orders of protection or other domestic violence can be tackled with mediation, from business issues to divorce to post decree modifications. [Back to Top] Estate Planning, Wills & Trusts Whether you are young, old, rich or poor you need an estate plan to ensure that your wishes are carried out in the event that you become disabled, incapacitated or deceased. Documents included in an estate plan include any combination of the following: Will, Trust, Power of Attorney and Living Will. We are happy to assist you with developing an estate plan to protect you, your assets and the loved ones who may survive you. [Back to Top] Probate/Estate Litigation Probate is the process of submitting a deceased person’s Will to the court so that a Personal Representative can be appointed and the deceased person’s estate can be distributed to the beneficiaries of the estate. If a person dies without a Will, a survivor can also file an Application for Probate, stating that the person died without a Will and a Personal Representative must be appointed to distribute the deceased person’s property. There are two types of Probate proceedings in Arizona, informal probate and formal probate. Informal Probate This proceeding is accomplished by filing the application with the Court and after certain time periods pass, the deceased person’s property can be distributed with very little involvement by the Court. In fact, in most informal probate proceedings none of the parties have to go to court, the case is finalized simply by filing appropriate paperwork with the court. Formal Probate In this proceeding, the Court is involved in every step of the process. Formal Probate is usually reserved for cases when one or more parties wish to contest the Will or the parties cannot agree on the distribution of the deceased person’s property. It is not always necessary to file an Application for Probate, some dependent factors are the size of the estate (or value of the person’ property), the terms of a Will and whether or not the deceased individual had a trust. [Back to Top] Guardianship/Conservatorship A Guardian is a person who has the legal authority and duty to act for a “protected person” whom the court refers to as a ward and to care for that person’s personal interests including making sure the protected person is able to meet his/her daily needs. A “protected person” is usually a minor child or an adult who is no longer able to care for his/her own personal needs. A person is appointed Guardian over an individual by filing a petition with the Court. Usually the Guardian must provide the Court with a report regarding the “protected person” on an annual basis. Conservatorship A Conservator is a person who has the legal authority and duty to handle a “protected person’s” estate and assets including, but not limited to, paying the “protected person’s” bills and debts and managing the “protected person’s” money. A Conservator is usually required to provide the Court with a list of all money earned and all money spent in the “protected person’s” estate each year. [Back to Top] Adoptions This firm handles step-parent adoptions only. When a step-parent wishes to adopt a child who is not biologically related but is related by marriage to one of the biological parents, the step-parent must file a Petition for Adoption with the Court and have a home study completed. A step-parent cannot adopt a child unless both biological parents consent or the parental rights of at least one of the child’s biological parents has been terminated by death or by order of the court. [Back to Top] Termination of Parental Rights A termination of parental rights case is the court process of severing all rights and obligations a parent has to a biological child. There are only a few circumstances, such as parental abandonment, when a court will terminate parental rights. All termination of parental rights cases are filed in the Juvenile Court. [Back to Top] Co-Habitation Rights When two people live together but are not legally married they may accumulate joint assets, debt or property. When the two parties split, the division of property, assets and debt may be required as if the parties were divorcing. We can assist you with protecting your rights, dividing the assets, property and debt and guide you through any court proceedings necessary to enforce your rights. [Back to Top] Orders of Protection/Injunction Against Harassment (aka Restraining Orders) If you are threatened, annoyed or harassed by a third person (whether a family member or not) the court can issue an Order or Protection or Injunction Against Harassment to prevent the third party from having contact with you. If you are served with an Order of Protection or Injunction Against Harassment, you may request a hearing to have it lifted or modified and the court must set a hearing within ten (10) days of the request for hearing. We can represent you whether you are requesting a Restraining Order or you need to defend yourself against a Restraining Order that has been served upon you. [Back to Top] Parenting Time Coordination When serious problems arise between parents who cannot get along, have difficulty enforcing parenting time, and/or exchanging custody, sometimes it is necessary for a third party to assist the parents with coordinating parenting time schedules and exchanges. Our experienced attorneys can assist parents with enforcing parenting time court orders, schedule times and exchanges that work for all parties and is in the child(ren)’s best interest. [Back to Top] Best Interest Attorney for Children Sometimes a Court will appoint an attorney to represent the best interests of a child or children. This is an attorney that usually has extensive experience with family law and the family court. An attorney in this capacity is in charge of the children. They look at all facets of the matter before the court and can both call witnesses in hearings or trials as well as cross examine other party’s witnesses. The position that they bring to the court is one based on their experience in family law and may differ from the child’s wishes if the attorney believes the child’s wishes are not in his or her best interest. However, the Best Interest Attorney can also advocate the child’s wishes, if the child’s desires are in the child’s best interests. A Best Interest Attorney is responsible for making the Court understand what resolution would be in the child’s best interest. [Back to Top] Child’s Attorney Similar to the best interest attorney, this is a court appointed attorney, where the client is the child. In this case, it is the child’s wishes that guides and determines the attorney’s strategy and position. [Back to Top] Court Appointed Advisor In this case, the court appoints an attorney with great court experience in the family law area to “report” to the court findings and opinions. The advisor investigates the allegations, speaks to witnesses, the children and the parties as well as other professionals involved in the case. He or she then prepares a confidential report for the Court. The advisor also testifies in court as to their findings. [Back to Top]