I WANT A DIVORCE — NOW WHAT?

Going through a divorce can be one of the most difficult times in a person’s life. Making the decision to dissolve your marriage (file for divorce) can be emotionally taxing, especially if there are children involved. The end of a marriage can be also be a confusing situation. Your divorce can include asset protection, child custody and support issues, spousal maintenance, domestic violence, or drug use/abuse. The attorneys at Gary J. Frank P.C. can make it easier for you and your children to go through the divorce process. We represent clients in both contested and uncontested divorce, with children or without children.

The following is some general information about marriage, and the general steps that need to be taken when filing for a divorce.

Covenant vs. Non-covenant

Arizona is a “no-fault” state, meaning that neither party needs to show blame or responsibility for the divorce. This is referred to as a “Non-Covenant” Marriage, and a marriage will be considered a non-covenant marriage unless the parties specify that they are entering into a “Covenant Marriage.” The only question that needs to be answered in a divorce of a Non-Covenant Marriage is whether the marriage is “irretrievably broken” or that there is no chance of the parties reconciling.

A Covenant Marriage is different in that the parties must have the intent to enter into this type of marriage, which should be declared on their application for a marriage license. A Covenant Marriage is also different than a Non-Covenant Marriage because in order for the parties to divorce, someone must be at “fault.” This is important because in a Covenant Marriage, a state court cannot grant your divorce without a reason. This can include adultery, felony, habitual drug or alcohol use, or if both parties agree to a divorce.

How to File for Divorce in Arizona

  • Residency Requirement

In order for a person to file for divorce in Arizona, one or both spouses must have lived in Arizona for at least 90 days. This includes spouses that are members of the Armed Forces and have been stationed in Arizona for at least 90 days.

  • Fill out your forms

In order to initiate your divorce in Arizona, the spouse filing for divorce (the petitioner) will need to file a “Petition for Dissolution of Marriage” with the Clerk of the Superior Court in the county the party resides. The Petition asks the court grant the parties’ divorce, while also entering other orders such as the separation of marital community property, the identification of sole and separate property, and if there are children involved, legal decision making and parenting time orders. This is only the start of the divorce process, and the requests in your petition are usually not considered until evidence and testimony are presented at a trial or evidentiary hearing.

  • Service of Process

Once you file your Petition for Dissolution, you will need to serve the other party (your spouse) with a copy of your documents, which include the Petition, the Summons, and the Preliminary Injunction, and other required documents. There are several methods of service, but the most common are arranging service with a private process server, or having the other party sign an Acceptance of Service, acknowledging that he/she has received the divorce paperwork. The signed Acceptance of Service must then be filed with the clerk of court.

Once the Petition is filed, you have 120 days from the date of filing to serve the other party. If the party is not served within that time frame, your case will be dismissed. Once your spouse is served, he/she will have 20 days to file their Response to your Petition (or 30 days if served out of state). If your spouse is served and fails to file a Response within the applicable time period, then you can apply for a “default judgement.”

  • 60-Day waiting period

The parties (you and your spouse) will have to wait at least 60-days before the Court will enter into any orders. This is otherwise known as the “cooling-off” period. This cooling-off period begins when your spouse is served. For example, even if you and your spouse have agreed on all issues in the divorce and submit a Decree, the Court will not sign it or enter any orders until the 60-day period has lapsed.

  • Decree of Dissolution

The order that finalizes the divorce is called a Decree of Dissolution. This will outline all of the terms of the divorce, including division of property and parenting issues, and each party will be returned to single status. The terms of a Decree of Dissolution can be ordered by the Court after a final trial; or the parties can negotiate their own agreement and submit a Consent Decree of Dissolution of Marriage to the judge for approval. If the parties submit a Consent Decree, and the judge approves and signs it, then they may be able to obtain a final divorce without ever stepping foot in a courtroom.

 

by Hanna Juncaj

The Law Firm of Gary Frank P.C. is an Arizona Family Law firm that has been a fixture in the prestigious Biltmore area of Phoenix, Arizona for over thirty years.  Our attorneys, Gary Frank and Hanna Juncaj, are strong litigators, highly-skilled mediators, and compassionate counselors. We handle divorce and spousal maintenance cases, as well as legal decision-making, parenting time, child support, relocation/move-away, Paternity, Grandparents’ rights and Non-Parents’ rights cases, modification actions, enforcement actions, and all other matters related to Family Law.  If you are in need of a consultation, attorneys Gary and Hanna would love to talk to you.  Please call us today.  You can reach our office at 602-383-3610, or you can contact us by email at through our website.  To learn more about our firm, take a look at our web site at www.garyfranklaw.com.  We’d be happy to help you.

NEW CASE LIMITS JUDGE’S ABILITY TO MAKE DECISIONS FOR PARENTS

It came on like a silent earthquake. You didn’t see it coming. You never felt it when it hit. But now the foundation of the place where you live has shifted. The cracks in the walls are becoming visible. And nothing will ever be the same.

That is the effect of the 2018 Arizona appellate court case of NICAISE v. SUNDARAM,

Before Nicaise, the Family Court was the final arbiter of disputes over matters like education, medical, religious, or other decisions that parents make. If the parties couldn’t agree on an important parenting issue, one of them could take the matter to court and, after a trial or a hearing, the judge would make the decision for them.

But not anymore.

The Court in Nicaise ruled that a judge “may not substitute its judgment for that of a parent and make parenting decisions for them when they are unable to agree.” So now, when parents disagree, a judge can no longer decide which school a child will attend, or what doctor can treat her, or whether she will participate in therapy, etc. Those are parental decisions, and the Court no longer has the authority to intervene and “break the tie.”

For a number of years, the trend in divorce, legal separation, paternity, and other Family Law cases has been for the courts to award the parents joint legal decision-making authority (formerly called “joint custody”). But the Nicaise case is likely to slow down that trend, or even stop it in its tracks, in cases where people have trouble co-parenting.

Previously, the courts would sometimes enter a joint legal decision-making order, but give one of the parents the “Final-Say” in the event of a disagreement. It required the parents to at least discuss the issue, and each parent had input. But that has changed, too. The Court, in Nicaise, determined that “an award of joint legal decision-making that gives final authority to one parent is, in reality, an award of sole legal decision-making.” So now, if parents cannot seem to agree, then instead of awarding them joint custody with one parent having “final say,” it is likely that the judge will simply award one parent sole legal decision-making authority. This might make the other parent feel as though his or her parental rights have been stripped away. And it could set the stage for less co-parenting, and more fighting, in the future.

The effect of the Nicaise ruling is that if a mother and father are unable to make decisions together, the Court will have to appoint one parent to make all the decisions; or it might split up the decision-making authority so that, for instance, one parent is in charge of making educational decisions while the other has the authority to make medical decisions.

The Nicaise case represents yet another major shift in how Family Law cases are decided in Arizona. It may take years for the repercussions of that ruling to become clear. But this we do know: There is no longer a reason for a judge to order that the parents have joint legal decision-making authority with one parent having the final say. And when parents appear to be unable to make decisions together, it is likely that a judge will grant one parent or the other sole legal decision-making authority. This could derail the decades-old trend of Arizona courts giving divorced/separated parents joint decision-making responsibility, and expecting them to be able to co-parent.

How will the Nicaise ruling play out in the future? – It may result in pitched court battles between parents, with each of them seeking “sole custody,” and it could turn divorce and custody litigation into a high-conflict, winner-take-all contest. This makes it even more important for moms and dads to try to work together and co-parent effectively. And, where they are unable to do so, it will be worthwhile to consider peaceful options, such as mediation and settlement negotiation. Because if those efforts fail, and litigation becomes the only alternative, it is likely that one parent is going to win, and one parent is going to lose. And sometimes that is not the best outcome for the children.

 

 

At the Law Firm of Gary J. Frank P.C., both Gary Frank and attorney Hanna Juncaj are strong litigators and compassionate counselors. Gary Frank is a Family Law Attorney with over 30 years of experience as a litigator and mediator. He has also acted in the capacity of a Judge Pro Tempore in the Maricopa County Superior Court, and served on the Governor’s Child Abuse Prevention Task Force.  Hanna Juncaj is a highly-skilled attorney with a passion for Family Law and children’s issues. She has extensive courtroom experience, and is also a certified mediator. In addition, Hanna is an active member of her County Bar Association.  We handle Family Law cases in the areas of divorce, custody (now called “Legal Decision-Making and Parenting Time), relocation (move-away), division of property, spousal and child support, modification and enforcement actions, grandparent and non-parent rights, and all other matters pertaining to families and children. If you are in need of a consultation, call us today at 602-383-3610; or you can contact us by email through our website at www.garyfranklaw.com.   We look forward to hearing from you.

 

 

 

PARENTAL ALIENATION – IS IT REAL? DOES IT REALLY MATTER?

There has long been a debate among experts over whether Parental Alienation is really a “syndrome.” To which I respond: Does it matter? In our Family Law practice, we see Parental Alienation all the time. It occurs frequently in divorce and custody (now called Legal Decision-Making and Parenting Time) cases. Whenever a parent talks badly about the other parent to the children, or in front of the children, that’s an act of parental alienation. Why? Because children look up to their parents. They respect them They believe them. And if a parent is trashing the other parent within hearing distance of the children – or, worse yet, to the children – then there is a pretty good chance that it will affect how the children view the parent who is being “trashed.” Some parents do this incessantly. Others do it sporadically. Some do it intentionally. Others do it without thinking of the consequences. But either way, it can impact how the children view their other parent, and can alienate the children from that parent. More importantly, it can negatively affect the children, and even cause long-lasting emotional harm. So, does it matter whether Parental Alienation is a psychological condition? A “syndrome”? That’s missing the point. It’s a bad thing. It breaks down the relationship between a child and a parent whom he or she loves (or should be allowed to love). And, in the long run, it hurts the child.

 

At the Law Firm of Gary J. Frank P.C., both Gary Frank and attorney Hanna Juncaj are strong litigators and compassionate counselors. Gary Frank is a Family Law Attorney with over 30 years of experience as a litigator and mediator, which includes having acted in the capacity of a Judge Pro Tempore in the Maricopa County Superior Court; and serving on the Governor’s Child Abuse Prevention Task Force. Hanna Juncaj is a highly-skilled attorney with a passion for Family Law and children’s issues. She has extensive courtroom experience, and is also a certified mediator. In addition, Hanna is an active member of her County Bar Association. We handle Family Law cases in the areas of divorce, custody (now called “Legal Decision-Making and Parenting Time), relocation (move-away), division of property, spousal and child support, modification and enforcement actions, grandparent and non-parent rights, and all other matters pertaining to families and children. If you are in need of a consultation, please do not hesitate to call our office at 602-383-3610; or you can contact us by email through our website at www.garyfranklaw.com.   We look forward to hearing from you.

The information contained in this blog post is provided for informational purposes only. It is not intended to be, nor should it be construed, as legal advice in your particular case. You should consult with an attorney for advice regarding your individual situation. Further, reading this blog post does not create an attorney-client relationship. We invite you to contact us if you are in need of legal advice or guidance. To schedule a personal consultation, you can call us at 602-383-3610 or reach us through our website at garyfranklaw.com. We’d be happy to talk to you.