FAQ’s about DIVORCE

Why do I need an attorney for a divorce?

The State Bar of Arizona requires attorneys to stay up-to-date on the laws of the state
concerning division of property and debts, retirements, spousal maintenance, and
children’s issues. Even if spouses reach complete agreement themselves, an attorney is
best suited to prepare complete and enforceable documents. When there is no agreement
and the parties need a temporary orders hearing or a trial, an attorney in your corner
knows how to get the best results.

How much is the retainer for a divorce?

Each case is different, and an attorney in the firm needs to assess the merits of the case
before deciding on a retainer amount. Typically a divorce retainer will run between
$3500 and $5000. However, depending on the circumstances it may be less or, in some
circumstances, more. If the retainer is exhausted, Elkins & Associates offers payment
plans to meet clients’ obligations until the balance is paid in full.

Can my spouse and I use the same attorney?

The Supreme Court Rules that govern attorneys forbid an attorney to represent both sides
of a dispute. One attorney may, however, act as a mediator for divorcing couples and
assist them in reaching agreements. This is often a constructive and economical manner
in which to resolve disputes.

Can I do my free consult over the phone?

Unless you live outside of the state of Arizona, Elkins & Associates does not offer phone
consultations.

What is court-ordered mediation?

In Arizona, when the parties have minor children, they are required to attend mediation at
the Court of Conciliation unless they have (and have filed) a complete parenting
agreement. Mediation regarding children’s issues is conducted by professional mediators
who will work with parents in one or more sessions to develop a parenting plan. These
mediators do not handle child support or any other financial issues.

How long does it take to get divorced?

By Arizona statute, a divorce cannot be final until 61 days after the date of service have
passed. In contested matters, most divorces will take five to twelve months. If the matter
must go to trial, it could be longer.

What is a “default divorce?”

When the party that has been served with the divorce papers fails to file a responsive
document with the court in the time prescribed by statute, that person has “defaulted.”
After the default date, the court can enter a Decree of Dissolution that must exactly match
the terms set out in the Petition for Dissolution.

What are my spouse’s rights to the retirement I have earned during the marriage?

Retirement benefits are community property, so they are split 50/50 and divided by
specially drafted documents. Sometimes trades can be made for other assets to keep
retirements intact, but if the court must determine a division, it will always divide
retirements equally.

S/he has run up all this debt during the marriage– am I responsible for it?

The bad news about debt is that debt incurred during the marriage, even if one party
didn’t know about it, is almost always deemed community debt. Debt incurred after the
date of service is the sole and separate responsibility of the party that created the debt.

I want to get divorced. If I move out, will s/he get the house?

People often think that “abandoning” real estate means they get nothing. This is not true.
If a property is a community, it’s still community property.

Why do I have to disclose all my financial information?

Rule 49 of the Rules of Family Law Procedure requires that each party disclose certainly
financial documents, including bank statements, investment accounts, safety deposit
boxes, retirement statements, credit card statements, and more. These documents are
required to ensure that there is an equitable split of assets and debts in the final resolution
of the case.

FAQ about CHILDREN:

The Mom and I were never married, and she won’t let me see my child unless she is supervising.
What are my rights as a dad?

Once you file an action for the determination of paternity and ask for a temporary orders
hearing, the Court will give you parenting time away from Mother’s presence. The
amount and frequency of time will depend on the circumstances and the age of the child.

Does a father have to pay costs of pregnancy and birth?

Yes. Fathers are responsible for half of the medical costs not covered by insurance, and
necessary costs of pregnancy and birth.

How far back can I ask for child support?

The court can order child support back to the date of the parties’ separation, but cannot
exceed three years.

How is the amount of child support determined?

The algorithm for child support is determined by the State. The formula can be found at
https://www.azcourts.gov/familylaw/Child-Support-Calculator-Information. Unless the
parties agree to something different, and the Court accepts their stipulation, Arizona
Child Support Guidelines will be applied.

If I quit my job can I stop paying child support?

No. Court-ordered child support will continue until further order of the court. Judges
have seen every trick in the book to avoid paying support, which includes quitting or
getting fired. The Court has the power to impute income to a parent– that means that the
The court can look at what you were making before, and issue a Child Support Order based
on that income even though you aren’t earning it anymore.

The parenting plan is 50/50. Does that mean there will be no child support?

No. There are other factors that influence child support such as the relative income of the
parties, who pay medical insurance for the child/ren, the costs of childcare, and special
needs.

My spouse isn’t paying the court-ordered child support. Can I keep my child during his/her
parenting time?

The Court sees child support and parenting time as two completely separate issues. If no
support is being paid, you need to go back to the court to enforce that order. If you keep a
child from the other parent, you could endanger your own parenting time. That’s never a
good idea.

Can I take my child out of the state on vacation without the other parent’s consent?

That depends. If the final orders have not been issued by the Court, the answer is no
because the Preliminary Injunction that is issued at the start of every case says you cannot
do it. If your divorce is final, or final orders are issued in a paternity matter, the terms of
those orders apply. But, know that judges frown on parents that unreasonably withhold
consent for a fun activity that is in a child’s best interest.

I don’t like my ex’s new girlfriend/boyfriend. Can I keep her or him from seeing my children?

Probably not, unless that person has a criminal record, multiple arrests, recent DUI’s,
previous court findings forbidding contact with children, etc. An attorney will need to
look at your individual circumstances to determine this.

At what age can a child determine which parent he or she wants to live with?

There is no age in Arizona at which a child can decide. After the age of twelve, however,
the opinion of a child matters more to a judge. That opinion is most frequently elicited
through an interview with a trained therapist and provided to the judge, BUT, the judge
may not follow it. Judges must apply the factors contained in A.R.S. §25-403 in deciding
parenting time.

Can I relocate with my child?

Either the consent of the other parent or court order must be obtained before you can
relocate with a child more than 100 miles from your current home. Relocation cases are
among the most difficult because the standards are quite high. See A.R.S. §25-408.

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