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DIVORCE AND CHILDREN: Common Questions and Answers About this Booklet Divorce and Children has been written and edited by the Executive Council of the Family Law Section of the State Bar of Arizona. Every effort has been made to provide accurate information based upon the statutes and case law in existence on the publication date. The information in this booklet is general and should be utilized as a starting point in investigating your legal rights. There are exceptions to most of the general principles covered in this booklet and reading it cannot take the place of consulting a licensed attorney about questions specific to your particular case. Many thanks are offered to the editors and authors of this booklet for their tireless efforts and hours of dedication. Without their unselfish efforts, the many accomplishments in this field of endeavor would be impossible. What is A.R.S.? Throughout this booklet, you will find citations to “A.R.S.” followed by a section number. These citations refer to Arizona state law as set out in the “Arizona Revised Statutes.” The citations allow you to read particular laws yourself or to follow up for more detail. The state legislature provides all statutes in its Web site here. Click on Arizona Laws (Statutes). From that page you can access any Arizona law, including those cited in this booklet. Arizona laws also are available to the public in hard copy. To see them, visit your county law library or self-help center or a law school library. What is a dissolution? 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). What are Conciliation Services? Conciliation Services are a separate branch of the Court made up of trained family counselors and mediators who are available without charge in many counties to assist couples in resolving marital problems and disputes over a child. Contact the Conciliation Services in your county to find out how to set up an appointment.
Is there a mandatory education program about dissolution and its impact on children? (A.R.S. §25-351-355) Yes. If there is a minor child, each party must attend a court approved program educating the parties about the impact of dissolution on children. Unless the court excuses participation, a non-participating spouse may not be able to obtain any court relief in the dissolution process without completing the program. In addition, the Court has discretion to order parental education in any post-decree matters. We have decided to get a divorce and cannot agree on who should have custody of our child. Can Conciliation Services help us work out the custody and visitation arrangements? (A.R.S. §25-381.16) Yes, the counselors in the Conciliation Services assist parents in working out an agreement for custody and visitation in a process called mediation. Mediation is confidential. The mediator cannot be called as a witness. The mutual agreement is binding when submitted in writing and approved by the lawyers (if any), and the Court. Mediation is also available after the divorce for those who are seeking to change the original custody or visitation arrangements. My ex-spouse has custody of our child and refuses to allow the court-ordered visitation. What can be done? (A.R.S § 25-414) In all counties, you can request a hearing to enforce visitation and also request the court to hold the non-compliant party in contempt. In Maricopa County, the Family Support Center/Expedited Visitation Program provides help for post-decree enforcement of visitation. The Family Support Center can get involved when a parent petitions for enforcement or by court referral. In Maricopa County, a conference officer (a special master appointed by the court to meet with the parents and evaluate the problem) makes recommendations to the Court if the parents are not able to resolve the visitation problem with his or her help. You can contact 602-506-6184 for recorded information on how to enforce visitation. In both Maricopa County and Pima County forms for an Expedited Visitation Hearing are available free of charge from the Clerk of the Superior Court. The Court can punish a violator by awarding attorneys fees, scheduling make up visitation, ordering counseling, imposing fines, entering contempt sanctions, and requiring parental education. What can I do if my spouse (of former spouse) is violent? (A.R.S. §13-3602) A Superior or City Court Judge or Justice of the Peace can issue an Order of Protection to prevent your spouse or former spouse from harming you or the children. If a Petition for Dissolution has already been filed, and the dissolution is not yet final, 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 a Petition for Dissolution or Legal Separation is filed, a Preliminary Injunction is automatically issued against both spouses that prohibits them from harassing each other. When can I file for dissolution?(A.R.S. §25-312) Either you or your spouse must live in Arizona for at least 90 days before you can file for a dissolution. Unless Arizona was the last state where you lived together with your spouse or your spouse is served within Arizona, the Court cannot divide community property, or the payment of community debts, child support or maintenance, unless both spouses agree in writing that the Court may do so. If custody of a child is requested, a longer period of residence for the child may be required, usually six months. What reasons must I have in order to get a dissolution? Unless you elected a “covenant marriage” (available after August 21, 1998) no grounds are required other than one spouse’s belief that the marriage is irretrievably broken. How does the dissolution procedure work? One spouse (the Petitioner) files a Petition for Dissolution of Marriage (along with several other required papers including a Preliminary Injunction, Affidavit relating to Children, Notice to Creditors and other documents) with the Clerk of Court in his or her county and pays the filing fee. The other spouse (the Respondent) is served with the Court papers. If the Respondent does not agree with the Petitioner, the Respondent must file a response no later than 20 days after he or she was served with the papers (30 days if served out of state). 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. The Petitioner files an Application for Entry of Default and mails a copy to the Respondent. If the Respondent does not file a Response within 10 working days after the Application for Entry of Default is filed, then the Petitioner can proceed with the dissolution without the Respondent being involved. The spouses may agree on custody, visitation, child support, property and debt division, spousal maintenance or any of the other issues. If the parties have a signed agreement, it must be presented to the judge or commissioner for approval as part of the Decree of Dissolution. If the Respondent files a Response disagreeing with any of the requests made in the Petition for Dissolution and the parties cannot reach an agreement, then a trial is held. What is the preliminary injunction? A Preliminary Injunction is issued in every case and prohibits a party for taking a minor child out of state without court permission or permission of the other party; requires both parties to maintain in effect any currently existing insurance coverage; and prohibits dissipation or encumbrance of community or jointly held assets. What if I need financial assistance before the decree is entered? Both parties have the right to possess an equal amount of the liquid assets until trial subject to the terms of the Preliminary Injunction and, if they qualify, to receive temporary spousal maintenance and child support. You may apply to the Court to obtain possession of your share of the liquid assets and for temporary financial assistance in the form of child support, spousal maintenance, and attorney’s fees. You do this in most counties by filing a Petition for Order to Show Cause along with a Financial Affidavit and other required documentation or following your county’s expedited hearing procedure. Will I receive spousal maintenance (alimony)?(A.R.S. §25-319) Spousal maintenance may be awarded in one of four 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 spouse’s education; or (4) the marriage was long and a spouse has little chance of employment. If a party qualifies for spousal maintenance under one of these four factors, then to determine amount and duration, the Court considers the length of the marriage, each party’s age, health, and employment, the standard of living established during the marriage, the parties’ respective resources, a party’s deferment of career opportunities and assistance in the career opportunities of the other party, as well as other factors in deciding the amount and duration of spousal maintenance. What if I remarry or die? (A.R.S. §25-327) Spousal maintenance terminates when either party dies, or the recipient remarries, unless the parties have agreed otherwise, or the court has ordered otherwise. Spousal maintenance must terminate on the payee’s death to make it deductible on the payor’s income tax return. What if my spouse quits working in order to stop having to pay? A former spouse cannot avoid spousal maintenance or child support by voluntarily reducing or terminating his or her employment. The Court has the discretion to attribute income to a spouse who voluntarily reduces his or her income and to require the paying spouse to pay spousal maintenance or child support in the former amount. What if my former spouse refuses to give me current financial information relating to support or changes jobs? (A.R.S. §25-513) You may send a written request by certified mail to your former spouse’s employer or former employer requesting detailed information about all pay and benefits paid to your former spouse by the employer. You may also file a Petition for Order to Show Cause or request for expedited hearing requiring your spouse to provide you with the relevant information and to keep you apprised of his or her current employer’s address. How will our property be divided? (A.R.S. §28-211 & 25-318) “Community Property” is all property acquired during the marriage by the efforts of either party through the date of service of the Petition for Dissolution. If the Petition for Dissolution of Marriage was filed after August 21, 1998, then assets and income acquired after the date of service of the Petition are not community property and debts acquired after that date are not community debts. You should seek professional advice about how to keep your income and property separate after service of the Petition. 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 or for other compelling reasons. The court may divide property by ordering it to be sold, or by splitting it between the parties. If one spouse had property prior to the marriage, but that property has increased in value during the course of the marriage, then the increase in value could be deemed community property and divided between the parties, if the increase came from labor by either spouse during the marriage or expenditure of community funds. What property is not divided? (A.R.S. §25-213) “Separate Property” cannot be divided by the Court. 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. It is possible for a person to gift his or her separate property to the community—for example, by retitling the property as community property. What about the debts? (A.R.S. §25-318) 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. For petitions filed after August 21, 1998, the community is not liable for debts incurred after the date of service. The Court may also order the parties to submit a debt distribution plan. Within thirty days after receipt of a written request for information from a litigant which includes the Court name and cause number, a creditor shall provide the balance and account status of any debts of either party or both spouses, identified by account number, for which the requesting spouse may be liable to the creditor. What if my spouse does not pay the community debts as ordered in the final decree? Can our creditors force me to pay? (A.R.S. §25-318) 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 obligated spouse, unless he or she files bankruptcy. If a party fails to comply with an order to pay debts, the Court may enter orders transferring the property of that spouse to compensate the other party. What is joint custody? (A.R.S. §25-402-403) Joint custody can mean joint legal custody or joint physical custody or both. Joint legal custody means that both parents make major decisions jointly, and neither parent’s rights are superior. Joint physical custody means that the physical residence of the child is shared by the parents in a manner that assures the child has substantially equal contact with both parents. Joint legal custody is far more common than joint physical custody. Sole custody means one parent makes the major decisions and the child primarily lives with that parent. 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 to be 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. How is child custody decided? (A.R.S. §25-403) If the parents cannot agree on custody of a child, the Court will make the decision according to the best interests of a child, taking into account many factors including where the child has been living, the parents’ and 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. Prior to litigating any custody issue, the parents will be required to mediate the issue in the Court of Conciliation. 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. In most counties, guidelines on visitation are available from the Clerk of the Superior Court. What effect does domestic violence or drug or alcohol abuse have on a custody determination? [A.R.S. §25-403 (b) & (c)] 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 do I have to show to change custody? (A.R.S. §25-411 and 403) 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 one parent has failed to comply with the terms of the order, or there is evidence of domestic violence, spousal or child abuse, 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. May I move from my residence with the child? (A.R.S. §25-408 C.-K.) If both parents reside in this state, at least 60 days advance written notice by certified mail (return receipt) shall be provided to the other parent before a parent may relocate the child outside the state or more than 100 miles within the state. The non-moving parent can request a hearing to stop the move within 30 days after receipt of notice. After expiration of this time, any application to prevent relocation may be granted only upon a showing of good cause. A parent with sole custody or a parent with joint legal custody and primary physical custody, who is required by circumstances of health or safety or employment of that parent or that parent’s spouse to relocate within less than 60 days, may temporarily relocate with the child before the hearing; otherwise, a parent may relocate temporarily only if both parties agree or there is a Court Order. The burden of proving whether a parent may relocate with the child is on the moving parent and is based on the child’s best interests in accordance with several factors listed in A.R.S. §25-408 and 403. The parties may not agree to a future relocation of the child more than one year in advance. Who must pay child support? (A.R.S. §12-2458, 25-320, 320.01, 12-2454, and the Child Support Guidelines) It is the duty of both parents to support their minor children. Child Support is ordered in accordance with Arizona Child Support Guidelines. These Guidelines are available from the Clerk of Superior Court in your county. 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 provided the parents share expenses equally. If the parents have equal custody, but unequal income, the parent with the greater income will be ordered to pay child support. On request of either party or on its own, the Court may order both parents to meet with a federally authorized tax practitioner if one of the parents is self-employed. This person shall review the accuracy of the self-employed parent’s records and submit a written report to the Court to help it determine the child support obligation. Can the amount of child support ever be changed? (A.R.S. §25-320 AND 25-327) 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” changed circumstances may include the obligation of either parent to support another child, 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 child if the child support amount was set several years ago when the child was an infant or toddler. The support may also be changed if a child being supported reaches eighteen and graduates from high school or if the child’s custody changes to the other parent. This list of factors is not all inclusive. Can the parents agree to change the amount of support? Possibly, but all changes of child support amounts must be in writing, signed by both parents in a form acceptable to the Court and approved by the Court. 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? Yes. The obligation to pay support continues as if the parents’ rights had not been terminated, unless the child is adopted by someone else. What if my spouse does not pay court-ordered child support or spousal maintenance? If your spouse does not pay child support or spousal maintenance that is Court ordered, you have several remedies, including a wage assignment, garnishment of wages or execution on property. You can also file a Petition for Order to Show Cause or expedited hearing and ask the court to find the other person in contempt of court. Sanctions can range from fines to jail time. You can seek assistance from the County Attorney’s office, which assistance is free. A parent may be charged and convicted of a class 6 felony if the parent willfully fails to support his or her minor child. Child support must be paid before any other debts. If your spouse is self-employed and there are arrearages of ninety days or more for child support, the Court can order your spouse to pay up to six months worth of support into a Court trust account to secure your right to receive child support. A party’s failure to pay child support does not give the other party the right to deny visitation rights. Does bankruptcy end child support? No. You cannot avoid paying child support whether current, future or past due support, by filing bankruptcy. 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 support and request a hearing. How long does child support have to be paid? (A.R.S. §25-320) 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 child graduates from high school or reaches age 19, whichever is first. What if my child is disabled? (A.R.S. §25-320) If the child is disabled, child support may continue, or be started, by order of the Court after the child is 18 years old. What is a wage assignment and how do I get one? (A.R.S. §25-323 AND 12-2454) 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 or other payor (either a person or company) of a parent obligated by court order to pay a certain amount of child support each month to withhold that amount from the wages or money owed to the parent (employee) and to send that amount directly to the Clearinghouse. 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 Clerk of the Superior Court has forms to start, stop and change an assignment which are free of charge to the public. Information packets are also available to the payor (employer), obligor (parent ordered to pay support), and obligee (parent receiving support). All employers (payors) are prohibited by law from firing or punishing an employee just because that person has a wage assignment. What is the decree of dissolution of marriage? (A.R.S. §25-312 & 325) 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. A certified or duplicate copy of the Decree can be obtained from the Clerk of Superior Court for a small fee. What if I do not have money to pay the filing or response fee? You may request that the Court waive or postpone payment of the filing or response fees. Forms must be completed and signed by you and submitted to the Court. The forms are free of charge and are available in the office of the Clerk of Superior Court. What if I cannot afford a lawyer? (A.R.S. §25-324 and 315) If you cannot afford a lawyer, but your spouse has resources or has control of community resources, you can apply to the Court to divide the community liquid resources or order that your spouse pay your fees. In some counties there are referral services or legal aid groups that may be able to help. Look in the yellow pages or contact your county bar association. In some counties legal forms are available (in office supply stores or bookstores) if you want to handle your own case. In Maricopa County, the Self Service Center can assist parties representing themselves. You are required to follow all laws and procedures that apply to your case even if you do not have a lawyer. IF YOU DO NOT FOLLOW THE PROPER PROCEDURES YOU COULD LOSE IMPORTANT RIGHTS FOREVER OR YOUR CASE COULD BE DELAYED. If you do not have a lawyer, you may still want to try to arrange a brief meeting with a lawyer (which many lawyers offer without cost or at a reduced fee) to be certain your case appears properly prepared and to answer any questions you may have. In some counties a video tape is available through the Court to explain the procedures in representing yourself in a dissolution. Judges and court employees are not allowed to give legal advice. One lawyer cannot represent both spouses. When is my dissolution final? (A.R.S. §25-325) A dissolution of marriage is final after the judge or commissioner takes testimony, signs the Decree and files it with the Clerk of the Court. How long do I have to wait to get the final decree? (A.R.S. §25-329; Arizona Rules of Civil Procedure 4.1(c) You must wait at least 60 days from the date your spouse was served to go to Court and have the Decree of Dissolution of Marriage entered. This assumes you and your spouse have agreed on the terms or your spouse is in default. Legal Aid Organizations The following organizations may be able to assist you in obtaining additional information concerning a specific legal problem: Coconino County Legal Aid E. Birch Avenue Flagstaff, AZ 86001 520-774-0653, 1-800-789-5781 DNA-People’s Legal Services, Inc. P.O. Box 306 Window Rock, AZ 86515 520-871-4151, 1-800-789-7287 P.O. Box 767 Chinle, AZ 86503 520-674-5242, 1-800-789-7598 P.O. Box 765 Tuba City, AZ 86045 520-283-5265, 1-800-789-8919 P.O. Box 558 Keams Canyon, AZ 86034 520-738-2251, 1-800-789-9586 Four Rivers Indian Legal Services 403 Seed Farm Road P.O. Box 68 White River, AZ 85941 520-562-3369 La Paz County Community Legal Services 51 W. Second St. Yuma, AZ 85364 520-782-7511, 1-800-424-7962 Maricopa County Bar Association Lawyer Referral Service 303 E. Palm Lane Phoenix, AZ 85004 602-257-4434 Maricopa County Community Legal Services 305 S. 2nd Ave. P.O. Box 21538 Phoenix, AZ 85036-1538 602-258-3434 20 W. 1st St., Suite 101 Mesa, AZ 85201 (480) 833-1442, 1-8800-896-3631 Maricopa County Self-Service Center 201 W. Jefferson Phoenix, AZ 85003 602-506-7353 Mohave County Community Legal Services 519 Hall Street, 1st Floor P.O. Box 509 Kingman, AZ 86402 520-753-7175, 1-800-255-9031 Papago Legal Services P.O. Box 246 Sells, AZ 85634 520-383-2420 Pima County Bar Association Lawyers Referral Service 177 N. Church, Suite 101 Tucson, AZ 85701 520-623-4625 San Luis County Community Legal Services 10455 W. B St. P.O. Box 2045 San Luis, AZ 85349 520-627-0670, 1-800-356-7115 Southern Arizona Legal Aid, Inc. 64 E. Broadway Rd. Tucson, AZ 85701-1720 520-623-9465, 1-800-234-7252 520-623-9461, 1-800-248-6789 (new client lines) 1065 F. Ave. P.O. Box GG Douglas, AZ 85608 520-364-7973, 1-800-231-7106 Rt. 4, Box 1740, Suite 15 Lakeside, AZ 85929 520-537-8383, 1-800-658-7958 918 Live Oak Miami, AZ 85539 520-473-2548 1071 N. Grand Ave.,Suite 110 Nogales, AZ 85621 520-287-9441 124 S. Ironwood Drive, Suite 9 Apache Junction, AZ 85220 (480) 982-7061 766 N. Park Casa Grande, AZ 85222 520-316-8076 Volunteer Lawyers Program 305 S. 2nd Ave. P.O. Box 21538 Phoenix, AZ 85036-1538 602-258-3434, 1-800-852-9075 64 E. Broadway Blvd. Tucson, AZ 85701-1720 520-623-9465 White Mountain Apache Legal Services 116 E. Oak Street P.O. Box 1030 White River, AZ 85941 520-338-4845 Yavapai County Community Legal Services 401 N. Mount Vernon Prescott, AZ 86301 520-445-9240, 1-800-233-5114 Yuma County Community Legal Services 51 W. 2nd St. Yuma, AZ 85364 520-782-7511
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