Getting a divorce with children follows the same process as a divorce, with a few extra steps. If you and your spouse agree with how to share parenting time and make decisions regarding the children, a divorce with kids is only slightly more difficult. But Arizona’s laws, rules, and procedures can become complicated if you and your spouse have different ideas with how your children should be raised. It can become even more intensive if child support is also needed and contested.
Simplified 10-Step Process
When a divorce involves minor children you need to consider the following:
Somewhat confusingly, the term “custody” in family law does not exist. The Arizona legislature changed this law in 2013 because of the common misconceptions and confusion surrounding the term. The important thing to remember about “custody” is that the two basic questions to be determined regarding children in a divorce are:
The Best Interest of a Child is a standard by which a court determines what arrangements would be to a child’s greatest benefit, often used in deciding decision-making and parenting time matters.
Legal Decision-Making refers to who makes ‘major decisions’ on behalf of the children. Major decisions include education, medical care and religion. The court can award Sole Legal Decision-making or Joint Legal Decision-making or some combination of the two.
Parenting Time refers to both custody and visitation. Parenting Time outlines where the children live and when they see each parent. Equal parenting time is when both parents have the children for the same amount of time. There are a variety of different parenting time schedules to satisfy these arrangements.
Child Support is a court-ordered payment paid by one parent to the other parent for the financial support of a child. The amount is calculated by Arizona’s Child Support Guidelines, which calculated in a Child Support Worksheet.
The quickest timeline for a divorce is a little more than two months, and it requires both parties to be in agreement. That is because of a 60-day waiting period that is put in place under Arizona law. On this timeline, one spouse files the Petition for Dissolution, the paperwork that starts the divorce. Then they serve the other spouse (when things are amicable, this is done by giving your spouse the paperwork, and having them sign a notarized document that they received it, and this is then filed with the Court. That service date is important because it starts the sixty-day waiting period. At the end of the waiting period, the two of you can file your Consent Decree (and Parenting Plan, if you have children, and a Property Settlement Agreement, if appropriate). These are the documents that divorce you, contain your agreement, and divide your property and decide what happens with your child. Once the papers are signed by the judge, you are divorced.
If you want to stay in the house, you will need to get your spouse to agree to it, and you will need to buyout your spouse’s interest in the house. Unless a disclaimer deed has been signed, your spouse is entitled to half of the net equity in the home. To figure that out, you need to how much your home is worth and what is owed on the mortgage (in some cases, a home equity line of credit or a lien on the home may impact the net equity). For example, if your home is worth $400,000, and there’s $200,000 left on the mortgage, the net equity is $200,000, and you will need to pay your spouse $100,000 to buy out their interest. In most cases, you will need to show you are pre-qualified for a refinance. Most lenders can work with you to include the buyout as part of the refinance.
Before we can divide the marital property, we need to know what property is out there. The primary way we learn this is through disclosure and discovery. Under the rules of procedure, both parties are required to make extensive disclosures of their assets and debts. You can request additional information via discovery—a process that allows you to use different tools to find money. For example, if you believe your spouse is not forthcoming regarding their salary, you can subpoena their employer for their pay history. There are numerous discovery tools—depositions, subpoenas, interrogatories, requests for production, requests for admission, etc. You should speak with an attorney to learn your options regarding discovery and your duties under the disclosure rules.
Maybe, unless an exception applies, you are an owner of the business because it was started during the marriage. Under Arizona law, it does not matter whether your name is on the business because it was started during the marriage, it is part of of the community property and needs to be divided as part of the divorce proceeding. There are a few exceptions: Where the business was inherited or gifted to your spouse or where or a prenup or postnup is in place, then the business may not be community property.
Contrary to popular belief, annulments are not given easily or given out simply because the marriage was of short duration. An annulment is given out when the marriage itself is defective. For example, one spouse was married to another person at the time of the marriage or one spouse was defrauded into marrying the other spouse or you did not intend to get married. You have to meet one of the reasons for an annulment in order to get one.
You can get an annulment if you entered into a marriage that is either an illegal marriage or became voidable due to some defect in the marriage that occurred at the time of marriage. If you have only been married a short time and you realized you made a mistake, it may not be enough to get an annulment. The best way to figure out if you qualify is to meet with a divorce attorney.
Yes, you can stop a divorce at any time during the process if your spouse has not been served or has not filed a Response, and you were the filing party. But if the divorce has “officially” started, meaning, your spouse has been served or filed a Response, the two of you would have to agree to stop the divorce. If you and your spouse decide to stay married, the divorce case can be canceled or “dismissed” by filing a request with the Clerk of Superior Court and signed by both parties.
If your first divorce was never finalized, your second marriage is not legal. You will have to annul your second marriage and finalize the divorce from the first marriage before you can get re-married. Once the divorce is final, you can remarry your current spouse.
You must go through the Court to get divorced. But, when parties are in agreement, the paperwork can be drafted by an attorney who will file it once it is signed by the parties. In that case, the Court will still open and close a case, but neither party will have to set foot in the Courthouse.
But if you cannot come to an agreement regarding your divorce, a judge will have to make those decisions for you.
You are permitted to represent yourself in a divorce, but you are held to the same standard as an attorney. In other words, there is no excuse for not knowing the law or the rules. For that reason, if you do represent yourself, it may still be worthwhile to meet with an attorney and receive advice.
You may “need” an attorney if the other side has one. The rules and laws are complex, and people who represent themselves against an attorney are at a severe disadvantage. In contrast, if both parties are unrepresented, it is an even playing field; and, in that situation, hiring an attorney could give you an advantage.
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