FREQUENTLY ASKED QUESTIONS
How long does a divorce typically last?
The shortest possible time for your divorce to last is 60 days after service of the petition on your spouse. The typical time frame for a contested case (meaning you fail to reach an agreement until the final stages or you go to trial) is 6 months to a year. Complex cases, such as those that involve concealment of assets or substance abuse or claims of child abuse can last more than a year.
How can I ensure my divorce is as cheap and painless as possible?
Start talking to your spouse and trying to reach agreements on as many issues as possible as early as possible. The best possible time to start negotiating is BEFORE either of you file for divorce. Feelings tend to be less hurt and people are not usually as defensive, and that makes for a much smoother road. With regard to using attorneys, get your attorney to reach out to the other side and introduce himself / herself to your spouse or spouse’s attorney before filing anything with the courts. Focus this conversation on agreeing to a settlement method you are both comfortable with before the case gets off the ground.
What methods are available to settle my case outside of Court?
There are many methods each with their own advantages and disadvantages. The most common alternative settlement methods include Mediation and Collaborative Divorce.
What is mediation?
The main figure in a mediation is a neutral third party (meaning they aren’t on anyone’s side) who is typically an attorney, or in some cases, an expert in child development or therapy. It’s that person’s job to listen to both parties’ positions, and help them find solutions where the parties mutually benefit, or failing that, appropriately share responsibility in a way that is acceptable to everyone. While it is possible for the mediator to be the only professional in the court setting, it is possible and appropriate for each party to have their own private attorney which either attends or does not attend meetings with the mediator, as appropriate.
The main advantages of mediation is that where the parties share the cost of a mediator, it can be cheaper and faster than going through the courts. Because the parties make the decisions ultimately, mediated agreements are often much better tailored to the individual needs of the parties and there are more options on how to resolve a case than a judge has after a trial. (Basically, the parties can create a contract that binds them to do things a judge would not be allowed to order them to do. This can be especially helpful in situations where one or both the parties doesn’t agree with the way that Arizona law would ordinarily handle things at trial).
Mediation fails where the parties won’t agree and the mediator and/or attorneys lack the knowledge or tools to break the impasse. This problem is one of the reasons Collaborative Divorce was created.
What is Collaborative Divorce?
Collaborative divorce is a new way of resolving cases which shares the potential of being cheap and fast along with mediation. One advantage of the Collaborative process is that often during the process the parties are more able to remain on polite terms during the process and return to friendly terms afterward much sooner This also minimizes the trauma to children caught in a divorce. In a collaborative divorce, the basic “team” is an attorney for both clients, so that each person has their own legal expert to consult with. Both parties commit to settlement, and will have to fire their collaborative team if they can’t settle, which incentivizes everyone to agree. The attorneys and clients meet together to resolve the issues in the case, and, where they can’t agree, will involve a neutral expert to help the parties break the impasse. The typical experts that (may) get involved are:
1. A Collaborative Coach, who generally has a background in therapy or social work. A Coach’s job is to understand and work around the personal and emotional aspects of a case, such anger, disappointment, trauma, and lack of empathy, and work on poor communication skills that stand in the way of settlement. A coach will sometimes independently work with the parties (like a mediator) to create parenting plans.
2. A certified financial planner or accountant. The financial planner’s job is to help the parties understand the long term financial impact of dividing property and debts in one way or the other, including estimating tax consequences, the impact of proposed settlement on parties’ income / expense ratios after divorce, etc. The financial planner often works independently with the parties to gather information and create a summary of assets and debts for the attorneys in order to save time and money.
All of the professionals who participate in a Collaborative Divorce have to be specially trained and certified in the process and are encouraged to seek additional training in being client-centered and in addressing issues in a way that minimizes offense and conflict.
What are my rights to property in a divorce?
In Arizona the Courts start from the assumption you and your spouse own everything you own, and owe everything you owe 50-50. The common exceptions to this rule are that you:
1. Owned it before marriage
2. Inherited it or were given a gift meant for you specifically and not to the couple. (This doesn’t generally apply to gifts between spouses without a formal agreement).
3. One party “stole” marital property by re-titling it without consent, hiding it, or using it for a purpose the other party obviously wouldn’t have agreed to (like taking the new significant other on a vacation).
Rather than selling everything and splitting the money, it’s generally preferable to try and split assets to avoid having to sell or retitle, and to avoid incurring taxes and penalties. An attorney can help you structure your property settlement so that you create less work and less expense.
Can I get Alimony in my case?
Typically anyone can claim alimony. In Arizona there is a two part test:
1. Is an award appropriate?
On this part of the test, the court considers whether the person is financially self-sufficient or if they have made career or other sacrifices that benefited the paying spouse. If they qualify, the court moves on to the next part of the test.
2. How much should the monthly payment be and how many months should it last?
On how much should be paid, the factors that tend to be more definitive are the ability of both spouses to support themselves, the amount needed by the person asking vs the ability to pay of the person paying, and the lifestyle of the parties during marriage. Less common considerations are whether “stealing” occurred between spouses or that a spouse would waste assets (for example, because of addiction), or compensating a spouse for making career sacrifices for the marriage.
In terms of duration, common considerations are the length of marriage, whether or not the person asking can become self-sufficient, and how long that will take.
Can I get my spouse to pay my attorney’s fees?
A: The most common test in Arizona is whether there is a difference between the ability of the parties to pay for a lawyer and how reasonable their positions were at trial. Fees can also be awarded for a number of other reasons, such as violating court orders or agreements between parties.
Generally, a court is has the final say on whether or not fees are payable and how much even if they are deserved.
How can I be sure to get custody of my kids?
Arizona courts start from the position that both parents should share both parenting time and legal decision making equally. If it’s impossible, the court focuses on protecting children from domestic violence and child abuse, and to attempt to prevent the case from interfering in the children’s day to day lives to the extent possible.
In difficult cases where one parent is insisting on having all the parenting time, the following can be helpful:
1. Make sure the objection isn’t really based on a need of financial assistance. Often time the real issue behind a parenting dispute is a concern about receiving enough child support to get by on or not having to pay.
2. Consider court resources-Courts have a number of investigatory resources they can order, such as a home study, interviews with children, observing parenting skills in front of a child therapist, etc. Private therapy can also help kids whose parents are going through a divorce.
3. Ask for temporary orders. The courts can grant orders at the very beginning of the case at a sort of “mini-trial” on important issues. Where a parent’s objection is based off of false expectations, sometimes getting a small taste of what the court might do at trial will go further towards settling cases than anything else.
4. Don’t uproot your kids. Parenting plans are child-focused. Arizona courts don’t like to uproot kids especially when that forces them to create uneven parenting plans in order to keep the kids in school. So if you want to maximize your parenting time, don’t move away from where the kids are. More important, don’t move and take your kids with you without permission of the court and/or an agreement with the other parent. If you do move with your kids without permission, you will get in trouble for violating court orders and could be liable for felony kidnapping charges unless you can prove you’re fleeing significant domestic violence or child abuse.
What if I already have a bad custody order?
A: You can ask the court to change the parenting plan up to once a year absent an emergency. Family courts don’t have the ability to sever parental rights, so the rule of thumb is if you are willing to work on yourself and your relationship with your kids, there’s an opportunity to get more time with your kids. See the above question for court resources that can help you. In addition, the courts can order therapy and / or drug testing to prove you are clean, sober, and appropriate.
Law Office of Grant L Stratton looks forward to speaking with you about your particular needs. Please note, however, that the mere act of contacting our firm does not create an attorney-client relationship. As a result, you should never send any confidential information to our office until a Representation Agreement has been signed by both you and Law Office of Grant L Stratton.