Despite the difference in name, divorces are the same as a Dissolution of Marriage. In Arizona, a couple is divorced, or a marriage is dissolved, after the conclusion of a divorce or dissolution proceeding. Fault or a reason is not needed for a divorce or dissolution in Arizona.
A matter is contested when your spouse is challenges your Petition for Dissolution. This usually means they have filed a Response to the Petition. Just because a Response has been filed does not mean that an agreement cannot be reached. Usually, a party will respond, yet the parties are still able to work out an Agreement. This will usually happen after sufficient time has passed for everyone to understand what is at issue or what they are fighting over. If a settlement cannot be reached, a Trial may be necessary.
A legal separation is a legal decree which is issued when after the Court decides that there is an irretrievable breakdown of the marriage or that one spouse desires to live separate and apart from the other spouse. A legal separation generally has the same effect as a divorce in that it protects both spouses from the others future debts, it will determine child custody, child support, property division, debt issues, parenting time and other concerns. The only difference is that at the end of a legal separation, you are still legally married.
The Petition for Dissolution is what initiates the dissolution action. A number of other documents are filed at the same time. They include the Preliminary Injunction and the document requiring the parties to attend the “Parent Information Program.” Failure of a party to obey a court order including the Preliminary Injunction may result in Contempt of Court.
A temporary order is issued by the Court to establish rules which include who should reside in the marital home, whether or not spousal maintenance and child support should be established, which party should pay the community bills, where the children will reside and when they will see the non-custodial parent, etc. It is possible that these temporary orders may result in the final orders
The Preliminary Injunction is an order that is issued when a divorce is filed. This order is very important as it contains many different orders. Among others, it prevents you or your spouse from selling or giving away any of the community property, it prevents you or your spouse from taking your children out of the state without the prior written consent of the other spouse or the court, and it you or your spouse from harassing or disturbing the peace of one another.
Defaults occur when you or your spouse do not is not respond to the Petition for Dissolution within the required amount of time. If this happens, a Notice of Default is filed with the Court. In effect, a Default asks the Court to award you everything you asked for in your Petition. Once a default judgment has been entered, the other spouse may still have the ability to file a Motion and request the Court to Set Aside the Default in order for them to contest the proceedings.
Spousal maintenance is generally designed to assist a spouse in maintaining the standard of living enjoyed during the marriage and to assist a spouse in the transition from living together to living on their own. In Arizona, many factors are considered in determining the award, amount and duration of spousal maintenance.
Arizona is what is referred to as a “community property” state. Generally, all property and debt acquired during the marriage is considered to be community property. As always, there are exceptions to this rule.
Community property includes, but is not limited to, pensions, benefits, stock plans, deferred compensation, intellectual property, or anything else of value acquired during the marriage. This also includes financial accounts, houses, land, business interests, furniture and other personal property. Although there are exceptions, generally community property is split between the spouses.
Separate property in Arizona includes property obtained prior to marriage, through inheritance, and or from gifts from family and friends. This property is not divided unless the character of “sole and separate” is changed. If for example, a party were to deposit sole and separate funds to a community account and those funds were then used, they may be presumed to have become community. If they can be traced to sole and separate funds, they may still be sole and separate property. If a party has a house in their name prior to marriage but after marriage places the house in both parties’ names, this may also change the character of the property. Of course, there are always exceptions to these general rules.
If you and your spouse are able to agree to a settlement prior to going to trial, you will file a consent decree. A consent decree is a contract between you and your spouse that resolves all of you marital issues.
If you are unable to resolve your case, the matter will be set for trial. Due to the number of cases in Arizona as well as the Court‘s limited calendar, parties generally will get only hours to present their case to a judge. In this limited amount of time, the judge will listen to all of your testimony and witnesses and take into consideration all of the admitted evidence. After that, the court will issue a ruling.
Generally, there are three different types of custody.
With sole custody, generally one of the parents makes all of the final decisions regarding the children including the medical and educational decisions.
Generally, this means everything is pretty much equal. Many times the parents share equal time with the children, or something close, and they will make all of the important decisions together
This means that one parent may have more time with the children, but the other has rights with regard to decision-making. This means one parent may be called the primary residential parent.
In loco parentis is Latin for “in place of a parent.” Such is a person essentially treated as a parent by the child, and who has formed a meaningful relationship with the child for a substantial period of time.
In Arizona, a non-parent can request custody by alleging, among other things, that it would be significantly detrimental (harmful) for either of the child’s legal parents to have custody. This is a difficult burden to prove and sustain since it is typically viewed that parents have a fundamental right to the care, custody and management of their child(ren). Grandparents, stepparents, relatives and non-relatives should be prepared to prove that awarding custody to the legal parent(s) is not in the child’s best interest.
In order to request visitation (as opposed to custody) the non-parent must establish that the visitation is in the child’s best interest.
In Arizona, In Loco Parentis custody and visitation rights are covered by Arizona Revised Statute §25-415, reprinted below:
A.R.S. §25-415. Custody by non-parent; presumption; grounds; definitions A. A child custody proceeding may also be commenced in the superior court by a person other than a legal parent by filing a verified petition, or by a petition supported by an affidavit, in the county in which the child is permanently resident or is found. The petition shall include detailed facts supporting the petitioner’s right to file the petition. The petitioner shall provide notice as required subsection E. Notice shall include a copy of the petition and any affidavits. The court shall summarily deny a petition unless it finds the petitioner by the pleadings established that all of the following are true:
- The person filing the petition stands in loco parentis to the child.
- It would be significantly detrimental to the child to remain or be placed in the custody of either the child’s living legal parents who wish to retain or obtain custody.
- A court of competent jurisdiction has not entered or approved an order concerning the child’s custody within one year before the person filed a petition pursuant to this section, unless there is reason to believe the child’s present environment may seriously endanger the child’s physical, mental, moral or emotional health.
- One of the following applies:
(a) One of the legal parents is deceased.
(b) The child’s legal parents are not married to each other at the time the petition is filed.(c) There is a pending proceeding for dissolution of marriage or for legal separation of the legal parents at the time the petition is filed.
- If a person other than a child’s legal parent is seeking custody there is a rebuttable presumption that it is in the child’s best interest to award custody to a legal parent because of the physical, psychological and emotional needs of the child to be reared by the child’s legal parent. To rebut this presumption that person must show by clear and convincing evidence that awarding custody to a legal parent is not in the child’s best interest.
- The superior court may grant a person who stands in loco parentis to a child, including grandparents and great-grandparents, who meet the requirements of section 25-409 reasonable visitation rights to the child on a finding that the visitation is in the child’s best interests and that any of the following is true:
(a) One of the legal parents is deceased or has been missing at least three months.
(b) The child’s legal parents are not married to each other at the time the petition is filed.
(c) There is a pending proceeding for dissolution of marriage or for legal separation of the legal parents at the time the petition is filed.
- A grandparent, a great-grandparent or a person who stands in loco parentis to a child may bring a proceeding for visitation rights with a child by filing a verified petition in the county in which the child is permanently resident or is found.
- Notice of a custody or visitation proceeding filed pursuant to this section shall be served pursuant to the rules of civil procedure to all of the following:
(a) The child’s parents.
(b) A person who has court ordered custody or visitation rights.
(c) The child’s guardian or guardian ad litem.
(d) A person or agency that has physical custody of the child or that claims to have custody or visitation rights.
(e)Any other person or agency that has previously appeared in the action.
- A person shall file proceedings for custody or visitation under this chapter in the same action in which the legal parents had their marriage dissolved or any other proceeding in which a previous custody order has been entered regarding the child.
- For the purpose of this chapter:
(a) “In loco parentis” means a person who has been treated as a parent by the child and who has formed a meaningful parental relationship with the child for a substantial period of time.
(b) “Legal parent” means a biological or adoptive parent whose parental rights have not been terminated
- If the parents have been divorced for at least three months, or
- If one parent had been missing for at least three months, or
- If the child was born out of wedlock.
Of course, there are other considerations to take into account as well, specifically, whether the visitation would be in the children’s best interests. In determining a child’s best interests courts will look a number of relevant factors including:
- The historical relationship between the child and grandparent.
- The motivation of the grandparent seeking visitation.
- The motivation of the person denying visitation.
- The quantity of visitation time requested and the impact the visitation will have on the child’s customary activities.
- If one or both of the child’s parents are dead, the benefit of maintaining an extended family relationship.
The court must also consider if the visitation will be logistically possible and appropriate. Typically, grandparents may petition for visitation rights in the same action the parents had their marriage dissolved in or by a separate action in the county where the child resides, for the purpose of obtaining a court order for visitation with grandchildren.
