Pre-nuptial Agreements

A “contested divorce” refers to a dissolution of marriage matter in which the parties are unable to agree on one or more issues that must be resolved to terminate their marriage.

When the parties cannot agree, the resolution of the disputed issues is left to a judge of the family court.

The court will hold a trial wherein the parties through their attorneys present testimony and evidence. It can involve testimony from the parties or other witnesses, including expert witnesses. It also can involve documentary evidence such as tax returns, pay stubs, and bank and credit card statements. After a trial is held, the court has up to sixty days to make a decision on the issues presented.

Contested divorces in Arizona can involve any number of disputed issues including:

• Child-related issues of legal decision-making (formerly “custody”) and parenting-time (formerly “visitation”);
• Child support;
• Division of property;
• Division of retirement/pension/401(k);
• Asset valuation, including real property, businesses, or other assets;
• Division of debts;
• Spousal maintenance (sometimes called “alimony”);
• Temporary orders issues;
• Waste of community assets; and
• Attorney fees.

An uncontested divorce refers to a dissolution of marriage in which the parties are able to reach an agreement on all the material issues involved in the case either before filing a petition or very soon thereafter. An uncontested divorce is typically resolved by the parties entering a Separation Agreement (sometimes called a “Property Settlement Agreement”) that details the terms of the settlement. An uncontested divorce is settled out of court without the need to attend a hearing.

It is typically faster and less expensive than a contested divorce.

The law does require a sixty day waiting period before a divorce can be granted, even when the parties have agreed on everything. Lawyers are often used in uncontested divorces to ensure that the agreement of the spouses is properly documented.

Property division is the process of dividing property rights and obligations between spouses during a divorce. Arizona is a community property state.

Assets acquired by spouses during a marriage, except those acquired by gift or inheritance, are designated as community property.

In a divorce, the community property is divided equitably between the spouses, which in most situations means equally. Property division may be agreed upon between the spouses resulting in a property settlement agreement, or property may be divided in court by a judge during a divorce trial. Although in most circumstances community property is divided equally, Arizona courts have the authority to consider excessive or abnormal expenditures, destruction, concealment or fraudulent disposition of community property by a spouse and to award a greater than 50% share of the remaining community property to the other spouse to compensate him/her for such economic misconduct. Such cases are very complex and can greatly benefit from the involvement of competent, experienced legal counsel.

A party’s entitlement to receive or obligation to pay spousal maintenance (alimony) depends on a number of factors and is unique in each case. The purpose of spousal maintenance is to assist a party who is not in a position to meet his or her own reasonable needs after a separation or divorce to achieve the goal of financial independence.

In recent years, spousal maintenance has been heavily structured toward providing a party the means to rehabilitate themselves to eventually become financially self-sufficient.

Determining Spousal Maintenance in Arizona Requires a Two-Part Analysis.

First, an inquiry is made whether a party qualifies for spousal maintenance. In order to qualify, a spouse must show he/she:

• Lacks sufficient property, including property apportioned to the spouse, to provide for that spouse’s reasonable needs.
• Is unable to be self-sufficient through appropriate employment or is the custodian of a child whose age or condition is such that the custodian should not be required to seek employment outside the home or lacks earning ability in the labor market adequate to be self -sufficient.
• Has made a significant financial or other contribution to the education, training, vocational skills, career or earning ability of the other spouse.
• Had a marriage of long duration and is of an age that may preclude the possibility of gaining employment adequate to be self-sufficient.
• Has significantly reduced his/her income or career opportunities for the benefit of the other spouse.

If a party qualifies, the next inquiry becomes how much maintenance the spouse is entitled to receive and for long. There are twelve (12) factors the court must consider when analyzing that question.

Unlike child support, there is no formula which determines the precise length or amount of spousal maintenance.

Due to the subjective nature of the factors, there is often a wide range of possible outcomes for spousal maintenance. The thoroughness of budgets and specific plans for financial independence are a large part of obtaining spousal maintenance or defending against it.

During a marriage, the retirement benefits earned by either spouse are considered the property of the marital community. There are two main types of retirement benefits: defined benefit pension plans (like the Arizona State Retirement System, the Public Safety Personnel Retirement System, or military retirement) and defined contribution retirement plans (like 401k and 403b plans). A defined benefit plan entitles the employee to receive a certain monthly financial benefit usually based upon a calculation of their years of service and their level of earnings in the years leading up to retirement. Such plans typically have survivor benefit options which must be addressed during a divorce. A defined contribution plan is a plan in which a spouse invests money over time which is typically matched by the employer up to a certain percentage. These investments gradually grow over time leaving a pool of money to draw upon in retirement.

Retirement benefits generally can be divided in a divorce in Arizona.

However, Social Security payments, compensation for military injuries, and worker’s compensation disability awards are not classified as community property and may not be divided by the court. Many retirement plans are governed by federal law known as ERISA (the Employee Retirement Income Security Act of 1974). To divide ERISA-qualified retirement assets without triggering tax issues, a Qualified Domestic Relations Order (QDRO) is required. A QDRO is a court order that instructs one party’s retirement plan on how the benefits should be divided and paid out. Unbeknownst to many, a divorce decree stating that a spouse has the legal right to the other spouse’s retirement benefits does not actually complete a transfer of those benefits. A further court order is often needed.

The handling of your divorce case and division of the marital assets can have a long-lasting effect on you and your financial and personal wellbeing. It is important to understand your rights in the retirement benefits earned during marriage and how they should be divided.

Dissolution of marriage is the Arizona legal term for divorce. A marriage can be dissolved by either party claiming that the marriage is irretrievably broken with no reasonable prospect of reconciliation. Arizona is a no-fault divorce state meaning that the reasons for the break-up of the relationship are not relevant to the court in relation to granting the divorce, though the reasons may be relevant to other issues like children or property division.

Divorce Attorneys in Phoenix

The dissolution (divorce) process begins by a party filing a Petition for Dissolution. There is a sixty (60) day “waiting period” once a case is filed. A divorce typically takes between eight (8) to twelve (12) months to complete, during which time issues related to division of assets and debts, financial support (both spousal maintenance (alimony) and child support), and child-related issues of legal decision-making (custody) and parenting time (visitation) are evaluated and negotiated.

Arizona is a community property state which means assets and debts acquired during the marriage (except for gifts and inheritance) are typically equally divided between the parties.

Parties are encouraged to attend mediation in an attempt to settle some, if not all issues, in the case without trial. Any issues that the parties are unable to resolve through mediation must then be presented in a trial to the assigned judge for final determination.

Although a divorce is commonly thought of as an oppositional experience, the reality is that only a small percentage of divorce cases ultimately go to trial before a judge. The majority of cases are instead resolved by the parties through mediation. Mediation is a healthier and less contentious means by which parties are able to negotiate the terms of their divorce, including property division, parenting time, and support. Advantages to mediation are numerous, but perhaps the most notable is that mediation enables the parties to ultimately retain final approval over the terms of the agreement – whereas if they were to go to court, the parties would be bound to whatever the judge ordered.

Settling a divorce through mediation can not only be a less stressful approach, it is usually faster and less costly.

Mediation for Divorce in Arizona

Parties are able to take part in mediation at any point in the case. What happens in mediation is confidential. The mediation process is led by an independent and neutral mediator whose goal is to facilitate understanding and agreement between the parties, and to keep them in control of their own divorce terms. A mediator does not serve as an advocate for either party, but rather, is an unbiased party who has a strong knowledge and understanding of the law so he or she is able to provide the parties with objective information as to their legal rights and how a court might potentially rule on an issue. A strong mediator will use their expansive understanding of the law to craft creative agreements and settlements that ultimately satisfy both parties, and will have the negotiation skills necessary to reach agreements on issues that might have previously seemed unresolvable.

Due to the emotional nature of divorce, mediation in a divorce typically is performed by splitting the parties and their respective counsel into separate rooms. The mediator then acts as an intermediary between them, traveling back and forth between the respective rooms exchanging settlement proposals. This way, the parties are often able to get through and complete the divorce and negotiations without having to be in the same room.

Legal separation is essentially the same as a dissolution of marriage except without the actual termination of the marriage. During a legal separation, all assets and debts are divided, spousal support (alimony) is determined, legal decision-making (custody) and parenting time (visitation) are resolved, and child support is calculated.

What’s the Difference Between Legal Separation and Divorce?

The primary difference is that at the conclusion of a legal separation, the parties are still legally married. Legal separations are uncommon. Some reasons people seek a legal separation rather than a divorce include to allow one spouse to remain covered by health insurance and religious reasons.

If a party files for legal separation, the matter may be converted to a dissolution of marriage (divorce) at any time during the proceedings.

Once a Decree of Legal Separation has been entered, a dissolution of marriage (divorce) can be obtained by filing and serving a new Petition for Dissolution under the same case number and referencing the terms of the legal separation.

Child custody is a term that was once used in Arizona to describe a parent’s decision-making authority for and visitation with their children. The term now is legally obsolete. Arizona has replaced the term child custody with its two component parts: legal decision-making and parenting time. Legal decision-making refers to the parents ability to make non-emergency medical, educational, religious, and personal care decisions for the children. Parenting time (visitation) is the schedule established for each parent to have the children in their care. It is the declared public policy of the state of Arizona that it is in a child’s best interest:

1. To have substantial, frequent, meaningful and continuing parenting time with both parents and
2. To have both parents participate in decision-making about the child.

Joint legal decision-making requires both parents to agree about medical providers and medical decisions, which school the children attend, and any special religious education. If the parents are unable to agree on any of these issues, mediation is required and court intervention might be necessary. In limited circumstances, one parent may be awarded sole legal decision-making authority wherein that parent makes all of the decisions without the involvement of the other parent.

Parenting Plan for Child Custody in Arizona

Parenting time must be outlined in a parenting plan that defines day to day schedule that the children will follow, how school vacations and holidays are divided, telephone access, and how parenting disputes are resolved.

Arizona law provides that parenting time with each parent is to be maximized to the greatest extent possible.

In essence, it is presumed that the parties will have approximately equal parenting time with the children baring an agreement otherwise or circumstances which dictate that it is in the best interest of the child to be with one parent more than the other. The most common equal parenting-time schedules are the “5-2-2-5” schedule, “2-2-3” schedule, and the “week-on/week-off” schedule. The schedule that is most appropriate is dependent on the age of the children.

Child support in Arizona is calculated using a formula based upon an Income Shares Model that is set forth in the Arizona Child Support Guidelines. Pursuant to this model, the total child support amount approximates the amount that would have been spent on the children if the parents and children were living together. Each parent contributes his or her proportionate share of the total child support amount. The court may order either parent owing a duty of support to a child born to the parents to pay an amount reasonable and necessary for support of the children.

How is Child Support in Arizona Calculated?

The child support obligation has priority over all other financial obligations. The calculation is derived from a series of factors which includes gross income of both parties, amounts paid for health insurance, amounts paid for childcare, and the amount of parenting time each party has with the children. Parents have an ongoing obligation to support their children until a child reaches eighteen (18) years old or graduates from high school, whichever occurs later, but not beyond age nineteen.

Child support is modifiable upon a substantial and continuing change in financial circumstances.

Child support is required to be paid through the support payment clearinghouse for record-keeping purposes.

A Paternity Action is a legal matter to determine the parentage of a child, as well as to establish child support, legal decision-making, and parenting time. An unmarried parent has the same right to request legal decision making (custody), parenting time (visitation) and child support as a married individual.

In Arizona, there is a presumption that a child born to a married couple is the legal child of both parents.

For unmarried parents, this presumption can occur if a father is named on the birth certificate, has signed an acknowledgment of paternity, or is determined through genetic testing. Once paternity has been established, the court will address each parent’s rights and responsibilities to the child. The legal decision-making order will determine how important decisions are made for the child-related to non-emergency medical, educational, religion and personal care. The factors to be considered are the same regardless of whether the parties are married.

Payment Plans for Paternity Matters in Arizona

The Court will also order child support utilizing the Arizona Child Support Guidelines. In paternity matters, the Court is permitted to order child support retroactively up to three (3) years if the parents have not been residing together. A payment plan will often be established for retroactive support rather than a requirement to pay a large lump sum.

According to Arizona law, grandparents and great-grandparents have an ability to request visitation with their grandchildren under certain circumstances. In order to file an action, one of three factors must apply:

1. The legal parents must be divorced for at least three months;
2. The legal parents were never married to each other; or
3. One of the legal parents is deceased or has been missing for at least three months. If one of these elements is present, the court must then consider whether the visitation with the grandparent is in the children’s best interests.

A fit parent’s opinion of what serves the children’s best interests will be given special weight by the court. The amount of visitation between a grandparent and grandchildren will depend upon several factors including the historical relationship between the children and grandparent as well as the children’s customary activities.

There are also situations when grandparents can seek legal decision-making (custody) of their grandchildren.

In order to do so, the grandparent must act as a parent to the children (or stand in loco parentis) and the court must find that it would be significantly detrimental for the children to be placed with either legal parent. The legal parents must be notified of any case for grandparent’s rights. This is generally done through a process server.

Under certain circumstances, Arizona law allows for a person who has a significant and longstanding relationship with a child(ren) to request legal rights including legal decision making (custody) or parenting time (visitation).

In order to qualify for third party rights certain conditions must be met.

These include, but are not limited to, the parents of the children are unmarried, divorced, or a parent is deceased and there has not been a recent legal action involving the children. Even when a party requesting third party rights meets the legal criteria, the court is required to give special weight to a fit parent’s choice regarding whether to involve a third party in their children’s lives.

How to Obtain Legal Decision-Making Rights for Children in Arizona

To obtain legal decision-making rights (custody), the third party must demonstrate that child’s present environment may seriously endanger the children’s physical, mental, moral or emotional health. The legal criteria for visitation, is more relaxed and can, under certain circumstances, be obtained by simply proving that time with the third party who has played a significant role in the children’s life is in the children’s best interest. Depending upon the circumstances, the use of an expert may significantly increase the likelihood of successfully requesting or defending against a third-party claim. Depending upon the rights sought, the court will consider the relationship between the person seeking third party rights and the children, the motivation for the individual seeking third party rights, the motivation of the parent objecting, the quantity of the visitation requested, and the impact of visitation or lack thereof.

It can be very difficult for a parent to relocate or move from Arizona with their minor children. If there is already a court order which grants the parents joint legal decision-making (custody) or parenting time (visitation), at least forty-five (45) days’ advance written notice is required before a parent may relocate the children out of state or more than one-hundred (100) miles within the state. The written notice must be made to the other parent by certified mail, return receipt requested. The notice should include the expected date of the move, the address of the relocation and any other important details such as a proposed parenting schedule and cost of travel. If the non-moving parent disagrees with the relocation, that parent has thirty (30) days to file a petition with the court to prevent the relocation. The court must then schedule a hearing to allow the parties to present their case and ultimately make a determination as to whether a relocation of the children can happen.

The parent who wants to move with the children has the burden to prove that a relocation of the children is in their best interests.

In other words, if all factors are equal, a parent may not move the children. There are numerous factors that the court will consider when making this decision. Those factors include, but are not limited to, the advantage of the move on the quality of life of the parent and the children, whether the relocation will allow a realistic opportunity for parenting time (visitation) with each parent, the extent to which the move will affect the emotional, physical or developmental needs of the children, the effect of the relocation on the children’s stability, and the historical relationship between each parent and the children .

If a relocation is allowed, the court will establish a long-distance parenting schedule which will generally involve the children traveling from one parent to the other during school breaks. The court will also make a ruling on which parent is responsible for the costs of travel.

A parent may also request relocation of the children during a divorce or paternity matter. When such a case begins, there is already a court order (called a Preliminary Injunction) which prohibits the children from leaving the state without written permission of the other parent or court order. As a result, the forty-five day written notice of the move is not required. A decision on whether a move with the children can happen will take place in the final trial. The same factors are considered by the court and the burden remains on the parent wanting to move to show the children’s best interests are served by a relocation.

Once a ruling has been entered by the court, there are only certain aspects of that decision that can be modified in the future. The division of assets and debts is a permanent order and cannot be modified. Orders regarding children and financial support can be changed in the future.

A modification regarding legal decision-making (custody) and parenting time (visitation) can take place if there has been a substantial and continuing change in circumstances involving the children. Generally, a modification cannot be sought sooner than one year following the entry of the most recent order unless there is an emergency situation.

Examples of substantial and continuing changes for Post-Decree Modification in Arizona include:

1. Major changes to a child’s health or educational performance;
2. A parent’s use of drugs, excessive alcohol, or involvement in criminal activities;
3. Or the introduction of new parental relationships which are severely and adversely affecting the children.

The children’s increase in age or a parent dating or getting remarried are not usually the basis for a modification.

A request to modify legal decision-making or parenting time requires a formal document be filed with the court which specifically identifies the issues and presents a proposal on how to resolve them in accordance with the best interests of the children. If the petition does not meet certain standards, it can be denied outright by the court.

Financial orders such as spousal maintenance (also known as alimony) and child support can be modified at any time there is a change in financial circumstances. These changes can include a parent’s change in income, a change in the cost of health insurance or child care, or a parent supporting another biological or adopted child. The court has a simplified procedure to modify child support which helps to speed the process.

Prior to getting married, prospective spouses can enter a pre-nuptial agreement (also known as pre-marital agreement). The agreement can address numerous items such as who will own property acquired both prior to and during a marriage, who will be responsible for debts accumulated during a marriage, and whether a party will be responsible for spousal maintenance (also known as alimony) in the event of a divorce. The parties can agree to opt-out of Arizona’s community property law and can agree there will be no spousal maintenance or a specific amount of maintenance upon divorce. Such an agreement is not required to meet the court standard of fair and equitable. In fact, it can be unfair and unreasonable. The agreement must, however, disclose all known assets and debts of the parties before marriage and both parties must have an opportunity to thoroughly review and seek legal advice regarding how the agreement affects their rights. The agreement can be created and signed only days prior to a marriage if the above factors are met.

A pre-nuptial agreement cannot identify who will care for children born during the marriage or how much child support will be paid because such orders must always meet the court’s review of the best interests of the children at the time of the divorce.

Arizona has specific laws regarding the enforcement of a pre-nuptial agreement in the event of a dissolution.

Contempt of Court in Arizona is when a judge determines (after a hearing) that a party

1. Had knowledge of a valid court order;
2. Could have complied with the order, but
3. Failed to comply. When a party is found in contempt, the judge can issue sanctions (or penalties) until there is compliance with the order.

Examples of sanctions include incarceration, revocation of professional licenses, and even restrictions on a party’s passport and international travel.

A person can be held in contempt of Court for failure to pay child support, spousal support, or attorney fees, or failure to follow legal decision-making and parenting time orders.

The requirements of the order, the type of issue at dispute, and the specific language of the order typically dictates the types of relief and penalties available.

When a family law case is concluded at trial, a judge issues a ruling. The Arizona Court of Appeals has the power to review the judge’s ruling or order and determine whether the judge properly considered the facts and applied the law.

The legal standard for review of the trial court’s ruling depends upon the reason for the appeal.

Simply disagreeing with the court’s ruling or a belief that the judge should have found one parties’ testimony more compelling than another generally will not meet the stringent burden for a successful appeal. Statistically, only about 10% of appeals are successful. The procedures for the Court of Appeals are strict and a case can be summarily dismissed unless the proper rules are followed. Time is of the essence in an appeal. There is a 30-day deadline to file a Notice of Appeal following a trial court’s ruling. When an unsatisfactory ruling occurs, it is imperative to speak with a family law attorney immediately to ensure your rights are preserved.

A postnuptial agreement is a written agreement between a married couple which identifies their respective rights regarding certain property.

A postnuptial agreement can be used to resolve financial issues both during marriage as well as in the event of a dissolution of their marriage (divorce).

It can address the spouses ownership rights in current and future assets. It is different from a separation agreement which is entered in resolution of a divorce. A post-nuptial agreement is also different than a prenuptial agreement which is entered prior to marriage.

Spousal Rights for Post-nuptial Agreements in Arizona

Arizona law recognizes the right of spouses to determine their rights in property presently and prospectively by a post-nuptial agreement, but such an agreement must include built-in safeguards to ensure the agreement is free from any fraud, coercion, or undue influence; that the parties acted with full knowledge of the property involved and their rights therein; and that the agreement is fair and equitable.

There are many reasons why a married couple may decide to enter into a post-nuptial agreement. Most often, a postnuptial agreement is used to resolve a financial dispute between spouses, such as when one party believes a particular investment or purchase is a good idea while the other spouse does not.

Post-nuptial agreements are often incorrectly associated with marriages that are struggling. This is not necessarily the case. A well-drafted post-nuptial agreement that treats each spouse fairly in relation to property or debts actually can help strengthen a marriage.

There are circumstances when immediate family court action is needed. This may involve the need to obtain an Order of Protection due to domestic violence or threats of harm to a party or a child. An Order of Protection can be obtained immediately if the court finds there was an act of violence or a threat of violence.

Such orders can grant a party exclusive use of a residence, protect a spouse’s workplace, and even address family pets.

The Order is served upon the defendant by a law enforcement agency. The defendant is entitled to request a hearing on the Order to present their evidence as to why the Order should be dismissed or modified. The hearings will generally take place within ten (10) days of a formal request. Orders of Protection are available in city courts, justice courts, or superior courts.

When urgent action is necessary, the family court can enter additional emergency orders. A petition specifically identifying the emergency must be filed with the assigned judge in the family court matter along with a proposed order as to how to address the emergency. The court can grant an emergency order only if it finds that immediate, irreparable harm will otherwise occur. Examples include drug abuse by a parent, sexual abuse, mental health event, arrest for criminal behavior. or investigation by the Department of Child Safety (DCS – formerly known as CPS). Once an emergency order is granted, the court will set a hearing quickly to determine whether the emergency order should remain in place, be modified or be dismissed.

Emergency requests must also be accompanied by a request to modify the current court orders on a more long-term basis if there are already orders in place.

Emergency Orders are rare but are a quick remedy in the event of a major event.