The Frequently Asked Questions and the Answers to them are intended for general information and educational purposes in the state of Arizona only. They do not constitute nor are they a substitute for legal advice; they are not specific to any given case and the do not create an attorney-client relationship between the reader and the author. Only an attorney can adequately answer all of your questions, determine what laws apply to the facts of your case and how you should proceed. Pick a topic below:
Paternity
1.How is paternity established?
Paternity is established in one of three ways in Arizona: marriage, Hospital Paternity Program or court order. If you are married at the time your child is born, then the married parents' names are placed on the birth certificate. There is a legal presumption that the husband is the father of the child. If you and your spouse are going through a divorce or are legally separated, the legal presumption still stands and it will be up to the father/husband to disestablish paternity.
If you are not married at the time your child is born, then paternity can be established either through the Hospital Paternity Program or through court order. First established in 1976, the Hospital Paternity Program allows fathers of unwed mothers to place their name on the birth certificate of the child while both mother and child are at the hospital. Arizona law states that there is a legal presumption of paternity if the father signs all the documents used through the Hospital Paternity Program. While a father can later challenge the paternity in court, the later the father waits to challenge the paternity the stronger the argument is that it is not in the best interests of the child to disestablish paternity.
There are two ways in which paternity can be established through a court order: paternity testing using DNA methods or voluntary acceptance. In both cases, the appropriate paperwork must be submitted to the court in order for the court to find and order paternity establishment. With the DNA paternity testing, the mother, father and child are tested at a certified lab using Buccol swabs to obtain DNA from the mouth. The swabs are then sent to the laboratory for testing. If the testing shows that there is a positive match for paternity, the lab results can then be submitted to the court for a court order of paternity. Just because DNA testing has been done does not mean that paternity has been established. A court must enter a paternity order before the father's name is placed on the birth certificate. With voluntary acceptance of paternity, the father and mother both sign documents that the man is indeed the father of the child. The documents must state whether or not the mother had other sexual relationships at the time of conception. If she did, the father must then acknowledge in the court documents that he is aware of those other relationships but is still willing to voluntarily accept paternity without DNA testing.
I have been able to help many women obtain paternity for their child. In most of these cases it has meant that child support could then be established and the child would receive a better life than without the child support. In other cases, it has enabled the children to be able to obtain access to low cost and/or free medical care through the father, Social Security Disability derivative benefits, and other monetary benefits. And in still other cases, it has allowed fathers to be able to provide care to their children, such as being able to consent to medical care in emergency situations.
2. Why would I want paternity established?
Today, we are seeing a surge in the number of unwed women who are having children. While women may not see any need to place the father's name on the birth certificate, the child may be deprived of vital information and rights later in life. Furthermore, the father will not be able to obtain medical insurance or other benefits for the child and will not have the ability to consent to medical care in emergency situations. These are just a few situations that occur when a child does not have paternity established. Also, all courts have found that it is in the best interests of child to have both parents' names on their birth certificates. When a child is born, there are certain legal rights which the child automatically obtains. Among these rights are the right to inherit, the right to obtain Social Security, military and/or veteran disability and death derivative benefits from the parents, and the right to child support from the noncustodial parent, just to name a few. Also, with the rapidly expanding medical technology, it is important that a child know who the father is so that medical information can be garnered for potential future medical issues. There are very few instances in which the father's name should not be on the birth certificate. I have been able to help many women obtain paternity for their child. In most cases it has meant that child support could then be established and the child would receive a better life than without the child support. In other cases, it has enabled the child to be able to obtain access to low cost and/or free medical care that was otherwise not available. In one case, I helped a couple who were living together obtain paternity for the child. The mother had breast cancer and without paternity established on the birth certificate, the father would have had a difficult time enrolling the child in school, obtaining medical records, or any of the other myriad of things a parent must do where legal documents are required. 3. What rights does my child obtain from the father if there is no paternity established?
In a nutshell, none. If the father's name is not on the child's birth certificate, the child is not considered eligible to obtain Social Security, military or veteran's disability or death derivative benefits from the father. So if the father becomes disabled, the child would not be eligible to receive a monthly stipend from Social Security under the father's benefits. If the father were to die, the child would not be eligible to receive a monthly stipend from Social Security under the father's death benefits. Many of these benefits are quite substantial, rather from monthly stipends to medical and dental benefits, college tuition waivers, etc. It is always in the best interests of the child to obtain these benefits if they are available from the government. The child will also not be able to inherit anything from the father if that father's name is not on the birth certificate. In cases where a father dies intestate (without a will), the father's children are to inherit in equal shares from the father's estate. The child for whom paternity has not been established cannot inherit. If the father dies with a will but does not name the child in the will, the child cannot contest the will in order to receive any inheritance.
Child Custody and Grandparent Rights
1. What is the difference between legal and physical custody?
In a nutshell, legal custody is where the parent or parents have the right to make major medical, religious, schooling and other major types of decisions regarding the raising of children. Physical custody is where the child lives the majority of the time with one parent while the other parent has visitation rights.
In Arizona legal custody is usually jointly shared between the parents. When the parents come to an impasse regarding issues such as religious upbringing, schooling or major medical decisions (Such as should Jr. be allowed to have a tattoo at age 16? Does Jr. really need to have braces?), then the court may be required to make the decision. Many times there is a determination made in the custody agreement or divorce decree as to who makes the final decision when the parties come to an impasse. There are a few instances in which legal custody is given solely to one parent, usually when the other parent has serious alcohol or drug addictions and can't make these types of decisions.
In Arizona, physical custody can be placed with either parent. Generally one parent is granted sole physical custody with visitation to the other parent. Sometimes, the parties agree to have joint physical custody in which they have equal time with the child. In determining who will be awarded physical custody, the court will look at a series of issues that impact on the child to determine what is in the best interests of the child.
There are times in which supervised visitation is required by the court because a parent is unable to provide a safe environment or relationship with the child. Usually this occurs when one parent is abusing alcohol and/or drugs. In those cases, the court requires supervised visitation through the court's own program. When that occurs, the parent is allowed supervised visitation in a safe environment and counselors supervise the visits. Once a month there is a court hearing in which the counselor presents information to the court as to how the visitations are going between the parents and child. The counselor's recommendations are highly valued by the court and usually the court will follow those recommendations.
2. Can I move without letting the other parent know?
You can move without the other parent knowing, but it will be against the law. And it could prove to be very costly, both in money for legal fees and the fact that Arizona could require you and the child to return to Arizona. Failure to do that could result in an arrest warrant issued for the parent. It can also result in criminal charges of kidnapping or parental interference. For those reasons alone, a parent should not move without letting the other parent. It is always best to first consult with an attorney prior to making the decision on moving.
Arizona requires that parents seek and obtain the permission of the other parent and/or the court prior to moving outside of a 100 mile radius. If the parties can agree to the move, then the parties will need to have a specific agreement drafted which grants the move of the parent and child. The parties will also have to look at the issues of parenting time and possibly child support. If the parent who has visitation will be required to spend more money than previously spent to effect visitation, then a credit for that amount will be given in the child support calculation.
When the parties cannot agree to a move, the parties will have to go to court in order to get approval for the move. The court will look to a variety of issues regarding the best interests of the child and parents when making the determination regarding the move. Unfortunately, grandparents with visitation orders do not have the right to take this issue to court in order to stop a parent from moving without their permission. Only the parents to the child have this right.
3. I want to have visitation with my grandchild, but the custodial parent won't allow it. How do I get visitation?
Arizona allows for courts to order grandparent visitation in certain types of cases. The grandparents need to establish one of three things: a.) the grandchild's parents have been divorced for at least three months; b.) one of the grandchild's parents has been deceased or missing for at least three months; or, c.) the child was born out of wedlock. Even though the grandparent may be able to establish one of these facts, that does not guarantee the court will order grandparent visitation. The court needs to determine that the parent is not acting in the child's best interests by denying grandparent visitation. Because the law holds the rights of parents paramount to grandparents and there is a presumption that the parent acts in the best interests of the child, the grandparents must show the court that it is detrimental to the child to deny visitation.
The court will look at a series of factors in making the determination of whether to grant grandparents visitation. Facts include the length of the relationship prior to the denial of visitation, what the reason is that the grandparent wants visitation, the quantity and quality of the visitation requested and any adverse impacts that visitation may have upon the child and the child's family. There is also the issue of whom has custody of the child and if the grandparent would be allowed to have visitation at the same time the parent has visitation.
Child Support
1. How much will I get for child support?
In Arizona, the Child Support Guidelines are used by courts to determine the amount of child support that will be paid. The guidelines are determined by a panel and then made law by the legislature. The guidelines are reviewed every three years by the panel for recommendations in changes. The guidelines are just that, guidelines. In court, either party can argue for a departure from the guidelines for various reasons. However, it is up to the judge to determine if a departure is warranted and will be ordered.
The Arizona guidelines first determine the gross income of both parents. In determining this, the guidelines take into account such things as child support paid for a child not of the parties, other biological children living in a parent's home and spousal support. The income of a remarried spouse is not considered in the child support guidelines.
The guidelines then look to such issues as child care; medical, dental and eye insurance paid; extraordinary school expenses or medical expenses; visitation and visitation costs such as airline tickets or travel costs. Those costs are part of child support and are used in the determination of the full amount of child support necessary for the child. The guidelines then apportion the amount each parent is to pay for support of the child in proportion to their income.
I have successfully argued in several instances for deviation from child support guidelines as I have believed the support to be either too high or too low. Many times the woman is the custodial parent and earns far less than the father. The father is given a large credit for visitation and usually lives a better lifestyle than the mother. In those cases where there has been a large discrepancy in income, I have argued that the child is essentially being deprived of the better lifestyle at the mother's home due to this inequity. Several times I have been able to get the judge to award higher child support to the custodial parent so as to equalize the lifestyle of the child between the two homes.
I have also successfully argued for higher child support in cases where there were extraordinary expenses for the child due to a mental or physical disability. In those cases I was able to demonstrate that the custodial parent was expending more time and money in taking care of the child's mental or physical disability such that it decreased their earning potential and/or increased the amount of expenses for the child. In this manner, I was able to get the child the much needed medical, physical and emotional support necessary for a more stable life.
2. How can child support be modified and if so, how often?
Arizona allows for child support to be reviewed by the court every three years. The party requesting the review needs to be able to prove a substantial and continuous change in the party's circumstances to warrant the change. Furthermore, the change needs to be at least a fifteen percent (15%) increase or decrease from the previous child support order. The parties are required to exchange financial information every three years so that they can assess whether or not they need to go to court to have child support modified. If a party determines that there is a substantial increase or decrease in the child support, then the party needs to file with the court for a modification of child support.
However, there are cases in which the child support should be modified before the three years has passed. This includes when at least one child of the order has turned eighteen (18) and has graduated high school; when there is a change in the physical custody of the child; when there is a substantial increase or decrease in one party's income (i.e. disability, layoffs, promotions); when there is another biological child added to one party's household; or, when the child of the child support order has been diagnosed with a serious physical or mental disability that requires more substantial medical/psychological/school intervention and its accompanying costs.
In one case which I handled, the father of the children had become seriously disabled and was no longer able to work. I took the case into court and obtained a much lower support order while the father awaited the outcome of his Social Security Disability case. After he was awarded Social Security Disability, the children were able to obtain their own Social Security Disability derivative benefits award through their father. Those payments were counted as child support and the father was able to meet all his child support payments by those Social Security Disability payments.
In another case, the father of the child had his own business. He was clearly making a nice income but was not willing to pay more than $200.00 per month for child support. (This amount is close to support ordered for poverty level income.) He claimed he was not making enough money to pay more than that. The Court ordered him to disclose all of his business records for the prior three years to me. After a lengthy review of his business records, motor vehicle records, real estate records, and other documents, I was able to show the Court that the father was making over $100,000.00 per year but was using his business to hide the income. The court ordered the child support dramatically increased over the father's objections.
3. The noncustodial parent won't pay or is behind on child support. What can I do?
When parents won't pay their court ordered child support there are various options available to the custodial parent to enforce the child support order. One option is to sign up for child support enforcement services through the Arizona Department of Economic Security, Child Support Enforcement Section. Please see question 4 regarding Title IV-D cases for more information. Another option is to file for a wage assignment with the court. With a wage assignment, the employer is required to withhold a certain amount for each paycheck and to send it to the Arizona Support Clearinghouse. The Clearinghouse then forwards the payments to the custodial parent., But this doesn't always work when the paying parent doesn't work, goes from job to job, is self employed or works under the table.
In those cases, the parent has to file an Order to Appear and request a hearing so that the court can hear why the parent is not paying. The court has several options available to it for enforcement of the order if the court finds the payor in contempt of court. The most severe option is to have the person remanded to jail with a bond of at least 10% of the amount owed to the custodial parent. Other options are to have the parent make payments and monitor the payments until the payor shows responsibility for paying. The Court can also order that a bond be placed with the court or that a lien be placed against real estate or personal property for ensuring the payment of past support.
I have helped custodial parents obtain judgments against noncustodial parents who failed to pay support. In working with clients, one of the things which I always look at is whether or not the noncustodial parent has anything which could be levied. I also look into the personal finances of the noncustodial parent, requesting the court to order the noncustodial parent to divulge bank account records, IRS tax filings, etc. In several cases, the court remanded the noncustodial parent to jail with a bond when the court felt that the noncustodial parent had not purged the contempt of court. When faced with jail, most of the noncustodial parents were able to pay the bond and began paying their support regularly.
4. What is a Title IV-D case and why is the State involved?
Title IV-D is a program that was formed under the Social Security Act. It requires all states to operate a program in which to recover state and federal monies expended on families for things such as Temporary Aid to Needy Families (TANF), food stamps, medical insurance, etc. One of the requirements of Title IV-D is that the same services used to recover state and federal monies must also be available to those who have not been on any type of state or federal aid. What that means is that the Title IV-D program is available to anyone who wants to utilize their services. In Arizona, the Title IV-D program is administered by the Department of Economic Security, Child Support Enforcement Section.
Services that the Child Support Enforcement Section offers include paternity testing and establishment of paternity, establishment, modification and termination of child support, and enforcement of child support. Since Child Support Enforcement is a state agency, there are a vast array of administrative functions and powers available to the agency which are not available to the courts or to private attorneys. Some of these functions include access to vast governmental data bases in order to find parents, the ability to levy liens without a court order, the ability to have professional licenses and passports revoked until delinquent child support is paid in full, the ability to intercept tax refunds to pay delinquent child support, the ability to place delinquency notices on credit agency reports, etc.
I have worked as an Assistant Attorney General for Child Support Enforcement and am intimately familiar with the processes available to and utilized by Child Support Enforcement. I understand their system and what can happen when they make an error in a case. The Attorney General's Office represents only the state agency of Child Support Enforcement and not the individual parties in a case. There are some cases in which it is in the best interest of a client to utilize the services of Child Support Enforcement, as well as to have an attorney. I can review your case and explain how you will want to proceed if you are already involved with the Child Support Enforcement agency. I can also review your case and explain whether or not you want to utilize their services.
Legal Separation & Divorce
1. What is the difference between legal separation and divorce?
The difference is that with a legal separation, the parties are still married but are not accruing community property assets or debts as a couple any longer. Upon the filing for the legal separation, all assets or debts incurred by either party becomes their own and not part of the marital estate. With a legal separation, the parties are formally granted the separation by the court. The issues of child custody, child support, spousal maintenance and division of community property and debts are done in the same manner as a divorce. The only major difference is that the parties are not divorced. In some situations, a legal separation may be more advantageous to the couple if they are looking at various tax issues, need to maintain medical or other type of insurance on an uninsurable partner, are looking to end a covenant marriage, or believe that they may eventually reconcile.
2. What is the difference between a contested divorce and a stipulated divorce?
In either situation, you are going to need to file the petition for the divorce. In a fully contested divorce, the parties are not able to agree on the division of assets and debts, child support, child custody or visitation. In other words, the parties are so acrimonious that they can't agree on any one issue. There are some cases where the parties can agree on most of the issues, but cannot agree on some issues. In those cases, there is still a contested divorce, but only on the issues for which the parties cannot agree. The court will hold a trial and make the decision on those contested issues.
In a stipulated divorce, the parties have come to an agreement on all aspects of division of the assets and debts, child support, child custody or visitation. In those cases, the parties need to have the proper documents drawn up by an attorney. Both parties will have to sign the documents, which are then submitted to the court for signature. The attorney who draws up the documents can only represent one of the parties.
3. Should I use mediation instead of a collaborative divorce?
Each situation is different and the parties to each case are different. Given that it is hard to say which process should be used by a couple. No matter what the situation, your attorney should give you detailed information regarding which process may be better for you. Obviously, if there has been a history of domestic violence, then the collaborative divorce process should not be used. However, if the parties believe they can resolve all issues amicably with the help of attorneys and experts, then collaborative divorce may be an option.
In a collaborative divorce process, both of the parties are represented by attorneys. The attorneys then bring in experts in the area of child custody, financial planning, etc. which are used in order to help the couple make determinations as to what is the best way in order to divide the assets and debts and for child custody, visitation and support. The parties, their attorneys and the experts meet regularly outside of court until they have come to an agreement on each issue. Each party is responsible for the fees of their own attorney and the fees of the experts. That agreement is then put into writing and submitted to the court for the signing of the divorce decree.
However, if the parties cannot agree on any single issue, then the parties will need to go forward with a contested divorce. This will require the parties to hire new attorneys and experts, if needed. Those attorneys and experts who participated in the collaborative divorce process cannot continue on the case and cannot be called as witnesses. Obviously, this can become much more costly than using mediation.
In mediation, the parties meet with a mediator who will work with the parties in order to reach a resolution to all of the issues that are contested. Prior to the mediation, each party's attorney will submit a written memorandum to the mediator. This memorandum concerns the issues and the individual's views about those issues toward a possible resolution. The parties don't need to be in the same room together and can take their time in coming to a decision. If the parties do not come to an agreement, then the parties proceed to court with the issues on which they could not come to an agreement. The parties do not need to hire different attorneys or experts in order to proceed to court as they would in a collaborative divorce when there is no agreement on all issues.
4. What is a covenant marriage?
A covenant marriage is not something that I would recommend to anyone contemplating marriage. The law surrounding covenant marriage is the legislature's version of returning to the "good old days" when one party had to prove the marriage was broken due to the "fault" of the other party. In order to obtain a covenant marriage, the couple have to submit the proper paperwork to the court after attending a premarital marriage counseling designed specifically for covenant marriages.
A covenant marriage can only end in divorce under very narrow circumstances: proven adultery; a serious felony resulting in imprisonment or a death sentence; domestic violence; constant drug or alcohol abuse; or refusal to live together after a separation of one year or longer (depends on the circumstances). The parties can obtain a decree of legal separation which could later be used to start the divorce process.
5. How much alimony can I be awarded?
In Arizona, alimony is now called spousal maintenance. Alimony is not like child support where there are guidelines which give parties an idea of just how much will have to be paid. Instead, alimony is determined by a variety of issues, including how long the marriage lasted; is one party precluded from being able to obtain gainful employment to meet living expenses; is one party unable to have sufficient property to meet living expenses; and, if one party put aside career goals in order to raise children or to help the other partner obtain a degree. These are just a few of the factors which determine the amount and duration of alimony to be awarded. Temporary alimony may also be ordered so that one spouse is able to pay living expenses and legal fees while the divorce is still pending.
6. My ex-spouse is not doing what was ordered in the divorce decree. What can I do now?
If your ex-spouse is not following the divorce decree orders in some manner, then you can file an Order to Appear with the court to have the specific provision enforced. The court will determine if the other party is in contempt and then order appropriate remedies. The court may order the other party to come into compliance with the decree within a certain amount of time. If the other party willfully fails to come into compliance, the court will have various options available to it in order to force compliance. Some of those options also include awarding attorney fees to the party who had to file the Order to Appear.
Prenuptials & Postnuptials
1. Why would I want a prenuptial agreement? Isn't this just like saying I believe the marriage will end in divorce?
There are several reasons to want a prenuptial agreement. If this is your first marriage, then you may have certain assets that you wish to keep separate from your marital assets. Once you begin to commingle assets after you are married, the court can find those have become marital property and subject to different laws than if they were still your sole and separate property. And if this is your second marriage, you may have children from your first marriage that you will need to provide for. You may also have assets or debts that you bring to your second marriage which will need to be addressed so that they don't become part of the marital property.
And for parents who own a closely held family business, a prenuptial agreement may be necessary to protect the family business should anything happen in the marriage. And this does not include just potential divorces!! All marriages end either in annulment, divorce or death. Having a closely held family business without a prenuptial agreement can tie the business up in probate court while a decision is made as to how much belongs to the surviving spouse.
As for the belief that entering into a premarital agreement is saying one believes the marriage will end in divorce, that is only a belief. As I said, all marriages end either in annulment, divorce or death. A prenuptial agreement protects the assets and debts of one spouse from a myriad of potential legal wrangling later on when the marriage ends.
2. Why would I want a postnuptial agreement?
Postnuptial agreements are a great way to protect assets from the uncertainties that come with life. When you inherit money from one of your relatives, that is considered sole and separate property. However, how you invest or use that money when you are married may end up making the inheritance partially marital assets. This can have a huge impact on things such as taxes and gifts to spouses if you were to die without proper estate planning. Postnuptial agreements also protect business assets when one spouse opens a business with sole and separate property. It's always a good idea to talk with your attorney regarding how you should proceed in these areas.
Domestic Partnership Agreements
1. Aren't Domestic Partnership Agreements just for gays and lesbians who live together?
Contrary to popular belief, Domestic Partnership Agreements are for all adults who are living in a family type relationship which is not recognized by law as being the same as married. It doesn't matter if the couple are homosexuals or heterosexuals because in Arizona, there is no law granting common law marriage. So even heterosexuals who are living together need Domestic Partnership Agreements in order to give each partner in the relationship the same legal rights as if they were married. To me, it is of bigger importance to ensure that partnership rights are retained as much as possible so that family life can go on without unnecessary legal strife when crises appear.
2. My significant other and I come from a state where we are considered to be in a common law marriage. So why do I need a domestic partnership agreement?
In Arizona, there is no such thing as a common law marriage. While the courts are required to give full faith and credit to such common law marriages from another state, that is only in the context of a divorce. It is questionable whether or not the law requires common law marriages to be given full faith and credit in the context of death. Outside of that, there is no state law that allows the recognition of common law marriages from another state.
This means that if you are in the hospital, your significant other cannot sign paperwork for you or have your medical conditions explained to them by your doctor. But the problems go beyond just hospitalization. If your partner dies intestate (without a will), you will inherit nothing from the estate unless the property is titled as joint tenants with right of survivorship. I'd be happy to sit down with you to help you determine what is the best way to protect all of your family's rights.
