Posts in category Family Law

90 Day Residency Requirement for Divorce in Arizona

Jul08
2011 Written by Chris

One of the requirements that must be met for a court in Arizona to have subject matter jurisdiction in a dissolution of marriage (divorce) matter is “that one of the parties, at the time the action was commenced, was domiciled in this state, or was stationed in this state while a member of the armed services, and that in either case the domicile or military presence has been maintained for ninety days prior to filing the petition for dissolution of marriage.” A.R.S. §25-312(1).

So what does it mean to be “domiciled” in Arizona?

A.R.S. §15-801 defines “Domicile” as “a person’s true, fixed and permanent home and place of habitation. It is the place where he intends to remain and to which he expects to return when he leaves without intending to establish a new domicile elsewhere.” In order to be domiciled in Arizona, in individual must satisfy two elements, specifically “a showing of the required state of mind, combined with actual physical presence.” Webster v. State Bd. of Regents, 123 Ariz. 363, 365, 599 P.2d 816, 818 (Ariz. App., 1979). In order to meet the state of mind requirement, an individual must take steps to demonstrate that he or she intends to make Arizona his or her permanent residence. For example, if you live in Nebraska for 9 months of the year, pay Nebraska income taxes, vote in Nebraska, have a Nebraska driver’s license but spend 3 months each winter in Arizona, you have not met the state of mind requirement. In order to meet the physical presence requirement, one must have been physically present in Arizona for at least 90 at the time a petition for dissolution is filed.

If the domicile requirement is not met, the petition for dissolution is fatally defective and must be dismissed.

Posted in Child Custody, Divorce

Interesting case about the modification of spousal maintenance

Mar31
2011 Written by Chris

Below is a link to a recent Appellate Court decision from Arizona. It discusses the factors that the court considers during the modification of spousal maintenance. In this situation, the parties executed a property settlement agreement separately from their decree of dissolution. As a result, a modification of spousal maintenance was treated as a contract issue, rather than an issue arising from a divorce decree that would require a showing of “changed circumstances that are substantial and continuing.”


MacMillan v. Schwartz

Posted in Divorce, Spousal Maintenance

Legal Separation

Mar04
2011 Written by Chris

In Arizona, one alternative to divorce is a legal separation. In a legal separation, all the same issues potentially dealt with in a divorce must also be dealt with. The only really difference is that at the end of the legal separation process, the parties are merely legally separated, not divorced. Without the court’s Decree of Legal Separation, physically living apart, for any length of time, does not mean the parties are legally separated. A court action must be filed by one of the parties, just as in a divorce. Thus, if one of the parties has concerns about limiting their exposure for financial actions of the other party, but is unsure that a divorce is really desired, a legal separation may be the solution. Also, if the parties desire to live separately but religious beliefs restrict the parties from seeking a divorce, a legal separation may provide the relief needed. In addition, a legal separation may allow a spouse to remain insured through the other spouse’s insurance.

Posted in Divorce

Parent Education Program

Mar04
2011 Written by Chris

In 1996, the Arizona State Legislature established a Domestic Relations Education on Children’s Issues Program, now offered in each Arizona county. This program sometimes is referred to as the parent education program or parent information program. Although the programs may differ somewhat in each county or even within counties, each is designed to offer education to parents about the impact that divorce, the restructuring of families and judicial involvement have on children. The Arizona Supreme Court sets minimum standards for these programs, including the topics to be covered and qualifications of course presenters.

Parents who have a child in common who is less than eighteen years old must attend the program when involved in a court case for dissolution of marriage (divorce) or for legal separation. Unmarried parents involved in a court case to establish paternity or maternity also must attend the program if the court has been asked to decide custody, parenting time or child support. Parents who fail to attend the program as ordered may be refused any specific request for court action, may be held in contempt of court or may have other penalties imposed.

The program lasts up to four hours in length and a fee may be charged to each participant based on the best interests of the child. The course is offered by a variety of providers, including both brick and mortar providers and online providers.

Posted in Divorce, Paternity

The Difference Between Custody and Parenting Time

Mar04
2011 Written by Chris

Custody is a legal term referring to the right of a person to make decisions about the care and welfare of a child (for example, decisions about education, health care and religious training). There are two types of custody, sole custody and joint custody. In a joint custody situation, both parents must work together to make decisions for their child, such as what school the child will attend or what doctor will provide treatment. In a sole custody situation, one parent is the decision maker. Joint custody is generally the most likely outcome unless there is a history of domestic violence, drug use or a fundamental inability for the parties to communicate with one another.

Parenting time (also sometimes called “access” or “visitation”) is a legal term referring to with which parent a child physically spends his or her time.

The terms “legal custody” and “physical custody” are often incorrectly used to refer to “custody” and “parenting time,” respectively.

Posted in Child Custody, Divorce, Paternity

Annulment

Mar04
2011 Written by Chris

Arizona courts permit a marriage to be annulled if certain requirements are met. An annulment is different than a divorce because an annulment has the legal effect of voiding the marriage. In other words, it is as if the marriage never occurred.

In Arizona, the parties cannot just agree to annul their marriage. The Court must independently make particular findings to allow an annulment. To establish grounds for an annulment, one of the parties must demonstrate to the court that an impediment to the marriage’s validity existed at the time of the marriage. Examples of such an impediment would be if one party was already married or if a party lacked the capacity to knowingly enter into a marriage. A court-awarded annulment is something separate from one that a religious institution might also grant the parties.

Spousal Maintenance

Mar03
2011 Written by Chris

In Arizona, certain spouses may be entitled to ongoing financial assistance from their former spouse after the divorce. Arizona courts refer to this as spousal maintenance, also commonly referred to as spousal support or alimony. Spousal maintenance can be requested by either party, regardless of gender. When determining whether an order of spousal maintenance should be granted or not, the court looks to a number of factors, including:

  • The standard of living established during the marriage.
  • The duration of the marriage.
  • The age, employment history, earning ability and physical and emotional condition of the spouse seeking maintenance.
  • The ability of the spouse from whom maintenance is sought to meet that spouse’s needs while meeting those of the spouse seeking maintenance.
  • The comparative financial resources of the spouses, including their comparative earning abilities in the labor market.
  • The contribution of the spouse seeking maintenance to the earning ability of the other spouse.
  • The extent to which the spouse seeking maintenance has reduced that spouse’s income or career opportunities for the benefit of the other spouse.
  • The ability of both parties after the dissolution to contribute to the future educational costs of their mutual children.
  • The financial resources of the party seeking maintenance, including marital property apportioned to that spouse, and that spouse’s ability to meet that spouse’s own needs independently.
  • The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment and whether such education or training is readily available.
  • Excessive or abnormal expenditures, destruction, concealment or fraudulent disposition of community, joint tenancy and other property held in common.
Posted in Divorce
ADVERTISEMENT MATERIAL
Please read our legal disclaimers! 		Copyright © 2009-2011, Kielsky Rike PLLC.
All Rights Reserved Without Prejudice. 		Contact Us for information.
+1 480.626.5415