Grounds

I should have covered this at the beginning but realized that I didn't.

Not so many years ago a person had to allege and prove a ground or reason for a divorce. The grounds were usually adultery, physical or mental cruelty or abandonment. This sent people to the private investigators office to start the evidence gathering. It also prevented a lot of people from getting divorced.

Thankfully for you Arizona is now a no fault state. This means that the only grounds to prove are irreconcilable differences and prove is used in the loosest of forms. All you have to do is say there are irreconcilable differences and you're good. There's no more catching your spouse cheating, providing pictures of bruises or proving you haven't seen or heard from your spouse in a shockingly long period of time.

Custody Evaluations

Sometimes you just can't reach an agreement on custody. You try and you try but it just doesn't happen. You attend mediation but it fails. You and your lawyers send letters back and forth trying to negotiate but it doesn't work. Do you have any options short of a trial? Yes, you do. It's called a custody evaluation. This is the last step before you put on a full custody trial in front of a judge and let him/her decide the custodial and parenting time fate of you and your children.

A custody evaluation begins with the appointment by the court of a psychologist to interview you, your spouse/the other parent, the child/ren, other family members and other pertinent individuals in your life and review any documents, medical and school records and the like. When the research, interviewing and investigating is done this psychologist drafts a written report making recommendations supported by his/her findings as to what the custody and parenting time arrangement should be.

This evaluation is not binding but it is admissible in court if there is still a custody trial after the evaluation is provided. These evaluations hold a lot of clout with the court, as the psychologist is considered to be a better judge of the situation than the judge. They are not irrefutable but it is not an easy task to convince a court to veer away from the evaluations findings and recommendations. For this reason, it is generally advisable to settle custody after an evaluation is done. If you don't like some of the recommendations you need to do your best to negotiate away from and around them as best you can.

Custody evaluations are often a beneficial and useful solution to custody deadlock. However, they are not always a very cheap option. In a traditional custody the psychologist takes a sizable retainer and then bills his time spent on the investigation and preparation of the evaluation at his normal hourly rate, similar to attorneys.  Depending on how contested things are and how deep you want the psychologist to dig the cost can end up upwards of $5,000 and even $10,000. Thus, while a beneficial tool they may be cost prohibitive.

Some jurisdictions offer limited custody evaluations, where each party pays a preset amount to the psychologist who then does what he can in a limited, predetermined amount of time. It's an abbreviated process when it's limited but when money is tight it's better than nothing. The unfortunate thing is that the availability of this option is dwindling.

To get a custody evaluation started you need to file a motion, have a hearing and get a signed order from the court including the appointment of a particular psychologist. Alternatively, if you and your spouse know you want to do this and know who you want to complete the evaluation you can do a prepared written stipulation asking the judge to sign a matching order.

And remember...

While you may find helpful insights or bits of information in this blog as it progresses, keep in mind that this is only being provided as general information to help you and others get started in this process. My first and best advice is to consult a lawyer knowledgeable in the area of family law. This is the only way to truly obtain advice directly pertinent to your situation. I am available for consultation by calling (928) 458-5026 to schedule an appointment.

More on paternity

Your final document will be called something like a Decree of Paternity, Custody, Parenting Time and Child Support. As stated in my previous post, the first thing it should include is a statement declaring who the father of the child or children is. When the decree is signed by the judge, you will have the order you need to officially and legally establish the paternity of the child. This may be all you want or need to do but usually you need to go to the next step: custody, parenting time and child support.

Custody, parenting time and child support are all dealt with in the same manner as they are dealt with during a divorce. I have several posts on these issues that you should review. Just as in a divorce, you will need to decide on or litigate legal custody and physical custody. The same statutes that apply in a divorce apply in a paternity proceeding. Ultimately, it comes down to what is determined to be in the best interest of the child, considering all of the factors set out in ARS 25-403.

You will also have to reach a decision on an appropriate child support amount. The same child support guidelines that are used in a divorce are used in a paternity action. You will need to gather all of the required financial information and complete the calculation.

And remember...

While you may find helpful insights or bits of information in this blog as it progresses, keep in mind that this is only being provided as general information to help you and others get started in this process. My first and best advice is to consult a lawyer knowledgeable in the area of family law. This is the only way to truly obtain advice directly pertinent to your situation. I am available for consultation by calling (928) 458-5026 to schedule an appointment.

What if I share kids with someone I've never been married to?

If you are ending a relationship with a person you share children with but aren't married to you need start a paternity action rather than a divorce. In a paternity action it just deals with the kids and child support. There's no property, debt and/or spousal maintenance involved because there was no marriage. These actions are governed by ARS 25-801-818.

The first part of a paternity action is to establish legally, by court order, the father or fathers of the child or children involved. ARS 25-814 sets out the presumptions the law makes about the father of a child is. Review these presumptions to see if the father of your child fits into one of the categories. It's also important to review the presumptions to determine if a person other than the father of the child fits into one of the categories. It's not just enough to say there's a presumption that applies and leave it at that. You need to have it put into an order and signed by a judge to make it official. It should be included in the final custody and parenting time order.

And remember...

While you may find helpful insights or bits of information in this blog as it progresses, keep in mind that this is only being provided as general information to help you and others get started in this process. My first and best advice is to consult a lawyer knowledgeable in the area of family law. This is the only way to truly obtain advice directly pertinent to your situation. I am available for consultation by calling (928) 458-5026 to schedule an appointment.

Attorney Fees

A.R.S. 25-324 is the statute that governs an award of attorneys fees in a divorce. The court looks at the financial assets and resources of you and your spouse. The court also considers how reasonable each person has been during the divorce proceedings.

During your divorce it is important that you are careful and reasonable about the positions you take on the various issues. Your position may be unreasonable if it is too far from the case law and statutes governing the issue. You need to be careful not to get too far afield in your demands and expectations. On the flip side you have the ability to seek attorneys fees if your spouse is being unreasonable.


And remember...

While you may find helpful insights or bits of information in this blog as it progresses, keep in mind that this is only being provided as general information to help you and others get started in this process. My first and best advice is to consult a lawyer knowledgeable in the area of family law. This is the only way to truly obtain advice directly pertinent to your situation. I am available for consultation by calling (928) 458-5026 to schedule an appointment.

How do I collect back child support? - Part 2

If you elect to embark on child support collection on your own then you need to closely and carefully read and follow rule 91 of the Arizona Rules of Family Law Procedure. This rule will tell you exactly what to include in your petition and what documents you need to collect and include with your petition. You need to follow this rule exactly. Do not take shortcuts or decide to leave out documents because you think it too hard to obtain. The more organized and complete your petition is the more likely you will be successful. The harder it is for a judge to sort through the numbers and the more math you make a judge do the more frustrated he/she can get and that doesn't help you. You need to know your numbers, do your math right and have the documents to back up your numbers. They need to be organized and easy to find. This is particularly true if you are seeking reimbursement for unpaid healthcare expenses. Have your receipts in chronological order, create a summary sheet to keep on top of the receipts and make sure your math is correct. You need to ensure that copies of any documents you plan to show the judge at a hearing have been provided to your ex-spouse ahead of time. Create a nice organized packet for yourself, your ex-spouse and the court that are identical.

As I mentioned in my previous post on child support collection you will need to obtain an arrears calculation from the child support office at the courthouse. This will take some time to obtain after the request is made so plan for that and do not file your petition until you have it. Of course, if your child support is not paid through the Clearinghouse then you will not have an arrears calculation for you case. You will need to provide your own itemization of the missing months. The court will have to calculate the accrued interest.


And remember...

While you may find helpful insights or bits of information in this blog as it progresses, keep in mind that this is only being provided as general information to help you and others get started in this process. My first and best advice is to consult a lawyer knowledgeable in the area of family law. This is the only way to truly obtain advice directly pertinent to your situation. I am available for consultation by calling (928) 458-5026 to schedule an appointment.

How can I move with my child?

This is called relocation or removal. It is one of the most challenging and expensive things to accomplish in family law. The relevant statute is A.R.S. 25-408. If you want to move with your child out of state or more than 100 miles from where you presently live but have joint legal custody or your ex-spouse has unsupervised parenting time this statute applies to you. You must follow it if you want to try for a relocation order from the court.

You must give the other parent 60 days written notice (unless of course you don't have 60 days from the date you find out you need to move and the date you need to move). The other parent has 30 days from when the notice is received to formally object to the notice.

If you have sole legal custody or primary physical custody and have to move for health, safety or employment of you or your current spouse you can temporarily relocate with your child. However, if you have joint legal custody or equal physical custody you cannot, unless the other parent agrees to the temporary move.

Ultimately, the decision will be based on the best interest of your child. The burden is on you, as the parent desiring to move, to prove the move is in your child's best interest. The court will assess all of the reasons given for the move, make determinations about whether it's being done to interfere with the relationship between your child and the other parent, how it will affect your child's emotional health and stability and the feasibility of maintaining a meaningful relationship with the non-moving parent.

This is a tough battle to win. There is a strong presumption in favor of keeping the child where he/she is and in contact with both parents. Your reasons need to be very compelling. You need to really be able to show that opportunities awaiting you with the move do not exist in any shape or form where you presently live.

If you think that you may want or need to move in the future and are presently in the middle of a divorce or considering starting one, you should consider bringing up the issue in your initial round of negotiations. You can include provision for relocation in your parenting plan and avoid subsequent contentious litigation.

And remember...

While you may find helpful insights or bits of information in this blog as it progresses, keep in mind that this is only being provided as general information to help you and others get started in this process. My first and best advice is to consult a lawyer knowledgeable in the area of family law. This is the only way to truly obtain advice directly pertinent to your situation. I am available for consultation by calling (928) 458-5026 to schedule an appointment.