Uncontested Divorces in Arizona

In Arizona there are many people who have never been divorced before.  Often times, one married person decides that they would no longer like to be married and would like to know more about "uncontested divorces".  They don't exactly know what an "uncontested divorce" is but have heard that it is an easier and relatively cheaper process.  Well, that is true.  However, most people believe that an Arizona uncontested divorce can only be accomplished when the other spouse's whereabouts are unknown. That is not the case.  When both husband and wife have come to terms that they will be divorcing and have come to an agreement regarding the terms, i.e., division of community property, assumption of community debt, spousal maintenance (also called alimony or spousal support), and if children are involved, child custody and child support, an uncontested divorce can be used to simplify the process and get the divorce done quicker.

What actually is an "uncontested divorce" in Arizona?  Well, it is a divorce automatically granted by a court when the spouse who is served with a summons and complaint for divorce fails to file a formal response with the court. Many divorces proceed this way when the spouses have worked everything out and there's no reason for both to go to court -- and pay the court costs.

For more information regarding uncontested divorces, contact Nirenstein Garnice Soderquist PLC and they will be glad to answer any questions you may have, or assist you with the process.

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Arizona Child Custody Statutes - Best Interests of the Child

When there are children involved in divorce cases in Arizona (or paternity cases), many questions arise as to how child custody is resolved. Arizona Statutes deal with child custody issues in Arizona divorce and paternity cases and are a great first place to start.

Some definitions need to be known and understood.  For instance, with respect to Arizona child custody, "Joint legal custody" means the condition under which both parents share legal custody.  In this situation, "both parents share legal custody and neither parent's rights are superior, except with respect to specified decisions set forth by the court or the parents in a final judgment or order."  Normally, the major decisions regarding a child involve medical, education and religion.  Most other decisions made by a parent such as daily activies of the child, what the children eat and wear, etc. are made by the parent who has physical custody of the child at the time the decision needs to be made.

That brings us to "Joint physical custody", which is defined as "the condition under which the physical residence of the child is shared by the parents in a manner that assures that the child has substantially equal time and contact with both parents."  What "substantially equally time and contact with both parents" is, of course, where many problems may arise as both parents may have very different views on this subject.

In an Arizona divorce or paternity case, if mother and father are unable to reach an agreement as to what custody arrangements should be put in place for their child, Arizona statute authorizes the court to award when deciding child custody that custody be either "sole" or "joint".  Importantly, there is no presumption in favor of one custody arrangement over the other.  And, "the court in determing custody shall not prefer a parent as custodian because of that parent's sex".  So, the sex of the parent when determing child custody in Arizona should not be a factor in the court's decision.

Many questions often arise about "what is in the child's best interests" in Arizona custody cases.  The divorce or paternity case judge considers the following: 1. the wishes of the child's parents; 2. the wishes of the child; 3. the interaction and interrelationship of the child with the parents, the child's siblings and any others who may significantly affect the child's best interests; 4. the child's adjustment to home, school and community; 5. the mental and physical  health of all individuals involved; 6. which parent is more likely to allow the child frequent and meaningful continuing contact with the other parent; 7. whether one parent, both parents or neither parent has provided primary care of the child; 8. the nature and extent of coercion or duress used by a parent in obtaining an agreement regarding custody; and 9. whether either parent was convicted of an act of false reporting of child abuse.

Of course, this is only the basics.  When dealing with Arizona child custody disputes each case is different because no two situations are exactly the same.  Facts always differ.  If you have any questions regarding Arizona child custody in the context of an Arizona divorce or paternity case, contact Nirenstein Garnice Soderquist PLC.

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When You Can Keep Lawyers Out of Divorce and When You Should Hire One

How to get divorced without using a lawyer -- and when you might really need one.

You probably know of people who suffered the torments of hell going through divorce, and you also probably know people who pulled it off without much fuss. Why are some divorces sensible and others catastrophic?

The answer can depend, to a surprising extent, on just one factor: how much you rely on lawyers and courts to resolve troublesome issues. The less you use the court, the less cost and heartache, and, in many cases, the better quality of the final result. But how do you avoid courts and lawyers?


Make Decisions by Yourselves


In theory, at least, it's simple: You do best if you work out thorny issues yourselves, with help from a neutral third person, such as a mediator, if you need it. You don't let lawyers haggle over such vital matters as how your children will be raised, what happens to the family home, and how your property will be divided. If you can work these issues out yourselves -- and many, if not most, couples can -- you will save yourselves time, money, and anguish. More important, you will spare your children the ugly spectacle of extended parental fights, helping them come through the divorce as undamaged as possible.

If you are able to solve the big questions of children, money, and property, you need to ask the court, in writing, to grant a divorce. In many states, you don't even have to appear in court. Many courts now make it relatively easy for people to handle the whole process without a lawyer.

But first, you've got to tackle those big questions. Can you and your spouse -- someone you may not feel much like cooperating with at the moment -- do it on your own? A surprising number of divorcing couples are eventually able to come to terms without outside assistance.


If You Fear Violence


If you fear that your spouse might harm you or your children or abscond with your property, take action immediately. Move to a safe place, and, if necessary, get a temporary restraining order to keep the spouse away.

Some people may advise you to close joint bank and credit card accounts, but this could be held against you during future court proceedings. Since joint bank and credit accounts are usually viewed as joint property, your future ex may accuse you of fraud or theft and a judge may agree, despite the fact that violence is raised as an issue.

Your best bet is to take the amount of money you realistically need (you do have this right, but try not to take more than half of what's there unless you absolutely have to), plus some extra for emergencies, and immediately file an action in court for support.


How Lawyers Fan the Flames


To an emotionally distraught or angry person, turning all the details and hassle of a divorce over to a lawyer may seem like a perfect solution. Unfortunately, it can turn out to be a deal with the devil. Most observers -- and people who have been through an acrimonious divorce -- agree that lawyers frequently make things worse, not better.

This happens because all lawyers operate under a prime directive: the zealous pursuit of their clients' interests. One lawyer can't fully represent both divorcing spouses, because each spouse's best interests are different. So, when one spouse brings a lawyer into a divorce, the other usually does likewise. There may even be a third lawyer to represent the children if there is a custody dispute. And then it can get ugly. When two or more lawyers are fighting for their clients' interests, the battle can go on and on, intensifying in passion, until the clients run out of money and limp to the settlement table.

But, if there are children, the fight depletes not only your pocketbook but also your children's sense of security and self-esteem. And, once the legal fight is over, trying to establish normal ongoing relationships between both parents and the children through a flexible custody and visitation arrangement can be very difficult.


When a Couple Can Use One Lawyer


There's an exception to the rule that no one lawyer may work for both divorcing spouses (who are assumed to have different, if not conflicting, interests). This is allowed when:

  • the clients have agreed on major issues
  • the clients are confident they can work out the minor issues
  • the clients understand that the lawyer cannot fully represent both under the circumstances
  • the clients have agreed to this in writing, and
  • the clients just want the lawyer to do the paperwork.

However, if a disagreement arises between the couple, the lawyer ethically has to transfer at least one client to another lawyer. The lawyer may have to transfer both clients to other lawyers if the lawyer has learned some things about the couple that make it unfair for him to represent one of them.
How to Keep Lawyers Civil

If you and your spouses do hire lawyers, you have the power to stop your lawyer from engaging in lengthy, expensive arguments with your spouse's attorney. Simply tell him or her to stop and explain that a combative approach does not suit your or your children's needs. Most lawyers would rather have a satisfied client than feed their ego by fighting the other side's attorney. Better still, try to hire a lawyer who'll work to minimize conflict with the other side from the start.

Some family lawyers are also trying a new method called "collaborative law," in which the clients and lawyers agree that they will not go to court but will share information voluntarily and work cooperatively toward a settlement. Collaborative lawyers will take cases only where the other spouse has also hired a collaborative lawyer, and the lawyers sign an agreement that, if the case can't be settled, the parties have to hire another lawyer to do the litigation. This removes the lawyers' financial incentive to go to court and encourages everyone to settle earlier.


When to Hire a Lawyer


It makes a lot of sense to hire a lawyer if there is a real problem with abuse -- spousal, child, sexual, or substance. In that situation, a lawyer may help you get the arrangement you need to protect yourself and the children, if there are any.

It can also make sense to hire a lawyer if your spouse is acting dishonestly or vindictively and you just can't cope with it. In that case, you may need someone to protect your interests.

It's also prudent to hire a lawyer if your spouse has an attorney. This is especially true if you have children or are facing complicated financial issues. It could be difficult and emotionally intimidating to go head to head with a seasoned pro.

If you can't afford a lawyer, consider calling your local legal aid office. If you qualify financially, a lawyer will at a minimum discuss the legal aspects of your case with you and may continue to answer questions on an ongoing basis during your proceedings. If the legal aid attorney's caseload permits, he or she may take your case, usually at little or no cost. Also, ask if the legal aid office has a pro bono program. The legal aid office may have a list of private attorneys that are willing to take on cases recommended by legal aid. These services are also at little or no cost.

If you don't qualify for legal services or pro bono help, you'll have to shop around for someone to represent you. For more guidance, see How to Find an Excellent Lawyer .


How Mediation Can Help


Mediators help you and your spouse get over the emotional barriers to negotiation and help you fashion a sensible divorce agreement that meets the both of your needs. Unlike lawyers, mediators work with both spouses at the same time. They don't represent the individual spouses' interests, the way a lawyer does. Instead, mediators facilitate an ongoing negotiation between the spouses that in most cases results in an agreement satisfactory to both sides. For more information, see Nolo's articles on Divorce Mediation.

Copyright 2005 Nolo
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