The Law Office of James L. Leather, PLLC

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Frequently Asked Questions

The section below, contains family law questions that are frequently asked to the members and divorce lawyers of our firm. We have set forth a short response to the questions. The firm strongly urges you, after reviewing the questions and answers, to schedule a free in office consultation (telephonic conference is possible if outside Phoenix or Maricopa County) to discuss in detail the facts of your case and the issues in your case.

The Divorce Process

How long will it take before my divorce (dissolution) is completed?

The process of a divorce includes the filing of the petition for divorce, the service upon the opposing party (by process server or the sheriff’s office), and a requirement that a written response be filed within twenty (20) days of service by the opposing party.   Thereafter the Court will schedule a Resolution Management Conference (hopefully within forty-five (45) to seventy-five (75) days) to review the status of the case, to order a Parenting Conference if there are issues regarding decision making (formerly custody) or parenting time of children, possibly order a settlement conference with a judge pro tem, and, a final trial date.  The overall process could easily take between six (6) to ten (10) months for the normal case, with no complications.

It must be noted that, in matters regarding children, prior to the completion of divorce, or a post decree matter, each party must attend the court ordered Parent Information Program Class.  This class is offered throughout the Valley and online, and costs approximately $50.00.  The class takes approximately four (4) hours to complete.  Further information is provided in the Notice and Order to Attend Parent Information Program Class found in the dissolution packet.

What happens if I am in need of orders regarding decision making (formerly custody), parenting time, support, etc., from the court prior to my final trial?

During the dissolution process either party can file a motion for temporary orders to obtain temporary relief such as temporary legal decision making authority, parenting time, child support, and spousal maintenance, from the court.

What if my spouse and I have already come to a full agreement on all issues of the dissolution of marriage?

If the parties have come to a complete agreement on all terms of the divorce, a Consent Decree can be prepared, signed by both parties, and given to the judge for signature and return mailing. The only restriction on this process is that the judge has no jurisdiction to sign a consent decree for the first sixty (60) days after a petition for divorce has been served.

What does it mean if I have a covenant marriage?

As you may have heard, Arizona is a no fault state, which means that you do not have to establish grounds, i.e. adultery, abandonment, desertion, in order to obtain a dissolution.  If, however, you entered into a covenant marriage, then, there are certain conditions which must be met that are fault based in order to complete the divorce.

How is the issue of assets and debts handled in a divorce?

Arizona is also a community property law state, which, in general, and perhaps a little over simplified, means that any property or debts that existed prior to the marriage are the sole and separate assets or debts of that spouse,  that any assets or debts acquired during the marriage, i.e. date of marriage to date of service of a petition for divorce, is community property, with community assets being generally divided equally and debts being divided equitably, and, any asset or debt acquired after the service of a petition for dissolution, again becoming the sole and separate asset or debt of that spouse.  This is a generalized statement, and, your particular facts must be reviewed in detail to give more accurate advice.

Decision Making Authority and Parenting Time Issues:

How are Decision Making Authority decisions made? 

The court must make decisions regarding Decision Making Authority based upon the best interest of the child.  A.R.S.’25-403 sets forth the factors for the Court to make an initial decision making determination or subsequent modification of a decision making order .  These factors include, but are not limited to, the child’s relationship to the parents and significant others, the child’s adjustment to each home, the school and community, the mental and physical health of all individuals, the existence of domestic violence, etc.  The existence of significant domestic violence will prevent an award of joint decision making authority.

What is sole Decision Making Authority?

The Court can award sole decision making authority, i.e. where one parent has the legal right and responsibility to make all non emergency legal decisions for a child including those regarding education, health care, religious training and personal care decisions.  During the parenting time of the parent without sole decision making authority, that parent has the right and responsibility to make, during that parenting time, routine daily decisions regarding the child’s care consistent with the major decisions made by the parent having sole decision making authority.

What is joint Decision Making Authority?

The Court could award joint decision making authority, i.e. where both parents share decision-making and neither parent’s rights or responsibilities are superior to the other.  In this case there must be some provision for decisions to be made if the parents do not agree.

What if we cannot agree on Decision Making Authority?

During the divorce process, the Court has the ability to order a “Parenting Conference” for the parents, if there is a dispute with regard to decision making authority or parenting time.  A Parenting Conference is, at this time, conducted by a private counselor or mental health provider, and the cost, at this time, is $300.00 per spouse.   That conference provider will meet with the parties and attempt to settle issues regarding decision making authority and parenting time.  If the provider is unsuccessful, the provider will present the judge with a detailed report indicating, from a mental health stand point, what is in the best interest of the child(ren).  If there are very serious allegations regarding, for example, mental health issues, substance abuse issues, domestic violence issues, and, if the parties can afford same, the Court could order the parties to a limited or full study by a licensed psychologist.   These studies, however, can be expensive. If the parties cannot agree, the court, after a trial, will make orders on decision making and parenting time.

Can I relocate outside of Maricopa County and/or the State of Arizona with my child(ren)?

Relocation is a very important and separate issue in the divorce or post divorce proceedings.  It is governed by A.R.S.’25-408.  The factors are set forth in the statute as to what the Court must consider when determining whether to allow the child(ren) to be relocated.  Relocation is a very difficult topic and fact specific and one that needs to be discussed with an attorney well versed on the subject.

Grandparent Rights and Decision Making Authority of Non Blood Relative or Extended Blood Relative

What is In Loco Parentis decision making authority, and what are grandparents’ rights?

The statute A.R.S.’25-415 specifically provides that, under certain circumstances, a non blood relative or extended blood relative can obtain decision making authority over the child(ren),  if certain conditions are met. The new definition of “In loco Parentis”  means a person who has been treated as a parent by a child and who has formed a meaningful parental relationship with a child for a substantial period of time. There are also other specific limitations which also need to be reviewed before a court will award decision making authority (i.e. custody) to a person within this statute. In addition, A.R.S.’25-409 states that grandparents and great-grandparents can obtain visitation rights under certain circumstances.

Child Support Issues

How is child support determined?

Child support is governed by A.R.S.’25-320 and is determined pursuant to the Arizona State Child Support Guidelines.  A calculation of child support is determined based upon many factors, including, but not limited to, both parents’ gross monthly income, the cost of medical insurance premiums for the child(ren), the cost of day care for the child(ren), the amount of time each parent has with the child(ren), and whether or not a parent is supporting a child from a different relationship.  With accurate information, an accurate child support figure can be determined.  The Arizona Supreme Court has a child support calculator on line for parties wishing to try and determine same on their own.

Which parent can claim the child(ren) on their tax returns and how are non-covered medical expenses of the child(ren) determined?

Both non-covered medical expenses of child(ren) and the allocation of the tax exemption are determined in the same manner.  Each party’s percentage income on the child support worksheet determines these issues.  For example, if the father earns $2,000.00 per month and the mother $1,000.00 per month, father pays two-thirds (66 2/3%) and mother one third (33 1/3%) of the non covered medical expenses.  The reason is father earns two thirds of the combined monthly income of father and mother, and mother one third.  On tax exemptions, similarly, father will claim the child(ren) two (2) of every three (3) years and mother one (1) of every three (3) years.

Spousal Maintenance Issues

How are spousal maintenance issues handled by the Court?

Spousal maintenance is governed by A.R.S.’25-319.  This statute sets forth all of the factors that the Court must consider in determining whethger a spouse is entitled to spousal maintenace and, after that determination has been made, a consideration of numerous factors set forth in the statute to determine the amount and length of the spousal maintenance.  At this time, Arizona does not have a spousal maintenance formula such as we use in determining child support.  The Court must look at the factors and make its’ decision based upon the facts of the case.

Changes to Existing Court Orders

What is modifiable and what orders can be changed?

The Court always has jurisdiction, with some time limitations,  to modify (i.e. change) decision making authorty, parenting time, and child support.  The Court has jurisdiction to modify (change) spousal maintenance awards prior to the expiration of the award, so long as the parties have not agreed to, and the Court approved, a non modifiable spousal maintenace award.

Order of Protection

How do I obtain/defend an Order of Protection?

Orders of Protection can be obtained by either spouse or signficant other from any municipal (city) court, justice court, or superior court.  Upon filing the approprate petition, appearing before the appropriate judicial officer, and obtaining from that officer an Order of Protection, the Order of Protection will then be served upon the opspoing party.  The served party does have a right to request a hearing and when rquested, a hearing will be held within five (5) business days if exclusion from the family residence is at issue, or within ten (10) business days if exclusion from the family residence is not an issue.  Orders of Protection may include a child or children.

What happens at the Order of Protection Hearing?

At a hearing on an Order of Protection, the party obtaining the order of protection (and that party’s witnesses) must testify first as to the need for the Order of Protection, and, then the party opposing the Order of Protection (and that party’s witnesses) has a chance testify to explain why the order of protection should be dismissed.  Exhibits may also be admitted into evidence and presented to the Court. These hearings are very limited in time (i.e. normally forty five (45) minutes, and it is very important that each party be prepared to present their evidence very quickly and in a concise manner.