Practice Areas - Domestic Relations & Family Law

GENERAL DOMESTIC RELATIONS INFORMATION

Benavidez Law Group, P.C., is serious about looking out for the best interests of our clients as they transition through divorce, paternity and custody proceedings, or prepare for a marriage, guardianship or adoption. Benavidez Law Group, P.C., has attorneys sensitive to your particular needs and experienced in dealing with the diverse issues that can arise in the area of domestic relations. Elisabeth I. Lashbrook, Esq., is our lead attorney in the Domestic Department. She has significant experience and knowledge about all areas of domestic relations. Our domestic law paralegal assistants are Dawn M. Nickel and Joeli P. Secrest. Domestic relations or family law encompasses the following areas of specialization:

• Divorce/Legal Separation/Annulment
• Paternity
• Marital Agreements
• Post-Divorce Issues

Divorce/Legal Separation/Annulment

In a divorce, the legal status of "marriage" will be dissolved and the parties will be returned to the status of being single. In a legal separation, the parties remain legally married, however the community estate is terminated and each party will begin to acquire separate property and debt as if they were divorced. While personal reasons for proceeding with a legal separation rather than a divorce may vary, they may include concerns about continuing health insurance coverage or religious principals. An annulment is an action to have the marriage declared void. This is only available if there was a legal impediment to entering into the marriage contract. Examples of valid legal impediments include the following: one of the parties is a minor; one of the parties is incompetent; one of the parties is still married to another individual; one of the parties misrepresented his/her legal identity to the other spouse.

There are four other functions of a divorce or legal separation proceeding as explained below. Some of the following may apply in the context of an annulment proceeding though legal procedures, presumptions and standards may differ slightly. You would need to discuss the specifics of your case with your attorney.

Divide Property & Debts: The law states that all assets (property) of the parties which were acquired during the marriage are to be divided "equitably" (essentially equally.) This includes earnings from employment, real estate, retirement accounts and pension plans, investment accounts, automobiles and boats, and all other things of value which were acquired during the marriage. The law also provides that the parties' debts are to be equitably divided. For more detailed information regarding allocation of property and debts, click here.

Grant Child Custody & Parenting Time: There are two aspects to child custody: legal custody and physical custody. Legal custody is the right to make legal decisions regarding the children (choice of a doctor, selection of a school, etc..). Physical custody is the residential arrangement for the child. The court must make orders regarding both aspects of custody. There can be shared or sole legal custody, designation of a primary residence or equal parenting time. The precise arrangement that will be appropriate in each case depends upon what is in the best interests of the child(ren). For more detailed information regarding child custody, click here.

Award Child Support: Each parent has a duty of support to his/her child(ren). Child support is usually determined through the use of "Child Support Guidelines," which calculate child support based upon the gross monthly income of both parents, with adjustments made for the parent who pays certain expenses, such as the cost of child care or medical insurance for the children. In some circumstances, it is appropriate to deviate from the amount of child support recommended under the guidelines. However, in the majority of cases, the guidelines will apply. You can estimate your monthly child support by visiting the Pima County Superior Court website at www.supreme.state.az.us/childsup. For more information about factors impacting child suppor click here.

Award Spousal Maintenance: Spousal maintenance may be granted by the court, for a period of time as the court deems just, if the court finds that the spouse seeking maintenance meets one of the following requirements: (i) lacks sufficient resources to provide for his or her reasonable needs, (ii) is unable to support himself or herself through appropriate employment, (iii) contributed to the educational opportunities of the other spouse and (iv) had a marriage of long duration and is of an age which may preclude the possibility of gaining adequate employment. If support is awarded, the amount of support depends on a variety of factors which would include the length of marriage and the parties’ respective incomes. Most counties in Arizona do not yet have spousal maintenance guidelines for determining monthly support, although the Maricopa County Guidelines are helpful for illustrative purposes.

Time-Line For Dissolution/Legal Separation/Annulment/Paternity Actions

Arizona law provides a time-line for dissolution, legal separation, annulment and paternity actions. Some people have heard the terms "no fault divorce" or "uncontested divorce." These terms refer to actions which are not contested or are pre-agreed, and the parties simply file the paperwork and await the expiration of the time-line.

Prepare and File Petition: The aforementioned proceedings are started by filing a document called a "Petition" accompanied by other required documents and affidavits. The Petition is the document which tells the judge what the Petitioner (person filing the documents) wants the judge to do, including how to divide the property, arrange for child custody, support, etc.

Serve Petition: After these documents are filed, a copy is delivered to the other party by a process server (or he or she can sign a document accepting service of the documents.).

34 Day Response Period: The person who receives the documents has 20 calendar days (from the date the documents were served) to respond, if the paperwork was served in Arizona. The Response is a document filed by the responding party which advises the court and the other party what that person thinks the judge should do. It is usually only necessary to file a Response if the Respondent disagrees with the position expressed in the Petition. If he or she fails to respond, then he or she is sent another document reminding him/her to respond. If he or she again fails to respond with 10 business days, his/her right to respond has expired.

60 Day Waiting Period: Arizona law provides that before the judge can grant a divorce, there must be a 60-day waiting period from the date the documents were served on the opposing person. This means that even though the time within which an answer may be filed has run out, the Petitioner must wait another month before getting the divorce/legal separation/annulment.

Appearance Before the Judge: If no answer is filed, after the waiting period has expired, the party who filed the Petition appears before a judge. At that time he or she gives simple testimony and the judge should grant the divorce/legal separation/annulment. If an answer is filed, the matter proceeds to the discovery phase where the parties exchange financial information and other documents, to settlement negotiations, and if there is no settlement, the matter is set for trial before a judge.

Important Considerations

There are many things to keep in mind when considering a divorce. Many of these are obvious and many relate to individual circumstances. Here are a few:

Do You Want to Save the Marriage? If you think your marriage might be saved, there are many resources available in the community which can attempt to reconcile your differences, including free conciliation services available to you through the court. Ask your attorney about these and other reconciliation services.

Which Issues Can You Agree Upon? Both parties will benefit by settling as many issues between themselves as possible, although lawyers and judges are sometimes needed to facilitate the process. The more issues that you and your spouse can resolve, the more amicable and less costly your divorce will be.

What Custodial Arrangement is Best? Although during the heat of the divorce many people think they should get sole custody of the children, both parties should seriously consider the long-term interests of the children. Consider what custody and parenting plan will be best for the children, and if possible discuss this between yourselves. If the judge has to decide on what custody and residential arrangement to impose, he or she will focus on the best interests of the children.

Prepare for the Meeting With Your Attorney: Attorneys are expensive, and when you are paying them by the hour, it is to your benefit to be prepared. Make a list of all of the property that you own, not each dish and chair, but of all bank accounts, investments and retirement accounts, automobiles, real estate, and other major assets. List all debts and liabilities. Note the assets and debts you want to keep and those you want to give away. Bring your financial records to your initial consultation, such as pay stubs, bank statements, tax returns, and stocks and bonds.

Pick the Right Lawyer the First Time: Call your prospective lawyer and get some information first. Understand the fee structure and the amount to be paid in advance, including whether the advance payment (retainer) is refundable if part is unused. If you don't feel completely comfortable with the attorney during the initial meeting, cancel the arrangement and move on. Your attorney will be an important part of the process, and the selection should not be taken lightly.

CUSTODY INFORMATION

General Considerations:

There are a number of options available to the parties and the judge when deciding custody.

Legal Custody: Legal custody is best defined as having the right and obligation to make legal decisions relating to the child. This includes which school the child will attend, the selection of a doctor and medical treatment, what religious instruction the child will receive, the granting of driving privileges, and other legal decisions relating to the child.

Physical Custody: Physical custody is the right to have the child reside with you. In a divorce, one party can be designated the primary residential parent, while the other parent will exercise parenting time, or both parents can share equal parenting time.

Joint Custody: Arizona law provides an option for joint custody in certain circumstances, when it is in the best interests of the child. There can be joint legal custody or joint physical custody or both. Joint legal custody requires that the parents must discuss and agree upon the legal decisions relating to the child, and neither parent’s rights are superior to the other’s. If the parents agree to joint custody, they must prepare, sign and file a "Joint Parenting Plan," setting forth their agreements, the residential plan, and other areas of agreement relating to the child.

Joint Physical Custody: Joint physical custody is also known as equal parenting time. It is not as common as joint legal custody since it requires a high level of logistical coordination and cooperation between the parents. However, in some circumstances, it is feasible and in the best interests of the children. In other circumstances, the children will reside primarily with one parent, and the other parent will exercise parenting time according to a designated plan or schedule.

Factors Impacting Custody:

The factors considered by a judge prior to deciding the issue of custody of children are set out in Arizona law and will vary in importance depending on the judge and the circumstances. For example, the Court may consider the following:

• Wishes of the parent(s)
• Wishes of the child
• Interrelationships between the child and parent(s), siblings and others.
• Child's adjustment to home, school and community
• Mental and physical health of the parties involved
• Who has provided the primary care to the child in the past
• Nature and extent of coercion & duress used by a parent in order to obtain custody
• Domestic violence. If there has been domestic violence, this fact has great bearing on custody and may result in limited visitation for the person who committed the violence.

Mandatory Mediation:

In every action filed where child custody is at issue and not agreed between both parents, Arizona law provides that both parents must attend mandatory mediation. This is a meeting where both parents meet with a mediator (no attorneys are allowed), who will try to discuss the issues with the parents and solve the dispute. This meeting should be scheduled early in any custody proceeding. Any agreements that are reached are submitted to the attorneys who will formalize the agreements and if no agreement is reached the parents will proceed to settlement negotiations, and if necessary, trial.

Parent Education Class:

When parties to an action have minor children in common, they are required to attend a Parent Education Class within forty-five (45) days of filing the Petition, or being served with the Petition. The court charges a fee of $27.00 for this class. Parents may be required to attend the class again if a dispute arises and the parties end up back in court.

Relocation with the Child:

In an ongoing paternity action or a dissolution with children, neither party may remove the children from the state without the other parent’s written consent, even if it is just for a vacation. Should a parent with primary physical custody want to move from the current state of residence and take the child to that new state, he/she must provide the other parent with written notice of the intent to move sixty days in advance of the intended moving date. Notice must be sent by certified mail. Upon receipt, the other parent has twenty days to file an objection and request that a hearing be held to determine whether the move is in the child’s best interests.

DIVISION OF PROPERTY & DEBTS:

In Arizona, community property law applies. Under this theory, there is a presumption that both parties have an equal interest in any property acquired during the marriage. This applies to earnings, tangible and intangible assets.

The Family Residence: One of the most difficult items to divide is the marital residence. Usually the home is owned by both parties and is secured by a mortgage. If one person signs his or her interest in the home over to the other person, that will not remove him/her from responsibility for the loan; ownership of the home and responsibility for the loan are completely unrelated issues. Therefore, a plan must be devised which will either sell the home and divide the proceeds or require one person to promise to pay the mortgage until the sale or refinance of the home. In many divorce actions this issue is the most difficult to resolve as the home is the most valuable asset of the marriage.

Ownership of a Business: If one of the parties owns his or her own business, then a value must be attached to that business. There are various methods of valuing a business, and once a value is reached there are various ways to divide that asset in the divorce. If the parties do not want to manage the business together then one party may take the business while the other party takes other assets of the marriage with a similar value. If there is not enough marital property to offset the value of the business, there can be a cash payment or a payment plan. Whichever method is selected, the end result should be that both parties end up with assets which, when totaled, have similar values. Remember, the key is the current value of the business, not the future earning capacity of the person who runs the business.

Retirement Accounts & Pension Plans: Many people think that their individual retirement plans are separate property and should not be divided as part of the divorce. The law is clear that when one party pays into his or her retirement account during the marriage, such payments were made with community funds, for the retirement of the community, and that portion of the retirement is community property. In simple terms, if an employee paid into a retirement account for ten years, and was married for five of those years, then half the value of the retirement plan is community property and must be divided between both parties. There are various ways to divide retirement accounts, including placing a cash value on the settlement, or obtaining a court order which directs that the company, at the time of payment, pay a portion to each person. Be sure to discuss these matters with your attorney and not minimize the value of these accounts.

Pre-Marital, Gifted or Inherited Property: Pre-marital, gifted or inherited property is considered sole and separate property and will not be divided in a dissolution or separation proceeding. In many cases, this is not as simple as it would seem. If the separate property was commingled (mixed) with community (marital) assets, then it may become community property. For example, an individual may deposit separate money (such as an inheritance) into a joint account and use it for living expenses or the purchase of community assets, thereby gifting it to the community. Conversely, community assets may be used for the benefit of someone’s separate asset, such as the payment from community earnings of the mortgage on a house purchased prior to marriage, or payment during the marriage for improvements to a house purchased prior to marriage. In those cases the asset remains the separate property of the spouse who brought it into the marriage, but the community does have an interest in the property equal to the amount of community contribution and a proportionate share of any increase in the value of that residence. The number of scenarios involving the intermingling of or distinction between separate and community assets are too numerous to describe, but they can be crucial in certain cases. When you make an inventory of property, think about when and how each asset was acquired, and be sure to discuss those factors with your attorney.

Planning for Your Initial Consultation:

• Prepare for your initial consultation with your attorney.
• Make a list or inventory of the assets that you own.
• List the items of personal property that the other person has that you want back, or certain things you want to make sure you get.
• List all the debts you know about, including amounts, monthly payments, account numbers, interest rates, etc.
• Bring copies of your financial records, including account statements, loan documents, pay stubs, tax returns and bills.

Remember: This is a Business Decision: We know there is usually a great deal of emotion involved in a divorce, but you will be best served if you control these emotions. This part of a divorce should be viewed as much as possible as the division of a business partnership. You must take into account the expense of paying your attorney to pursue recovery of property.

If you are contemplating marriage and want to clarify or avoid potential disputes about the separate or community nature of certain assets before marriage, you may want to consider a pre-nuptial agreement. If you are already married, you can set forth your respective rights with regard to certain assets in a post-nuptial agreement. For more detailed information regarding marital agreements, click here.

CHILD SUPPORT

Child support is intended to provide for the financial needs of children, their housing, clothing, food and other living expenses. It is the legal duty of all natural or adoptive parents to provide support for their children. Usually, the non-custodial parent is ordered to pay support to the parent who has primary physical or residential custody. However, in some circumstances, where there is a disparity between the parties’ respective incomes, a parent with equal parenting time or even one with primary parenting time could be ordered to pay support to the other parent.

The amount of support ordered in each situation will be based upon the combined gross income of both parents. Under the Arizona Child Support Guidelines, a percentage of the combined gross income is designated or allocated for the support of the parties’ minor child(ren). Each party must pay his/her respective share of that amount, with adjustments made to give each parent credit for separate payments for health insurance, tuition, child care and certain other expenses made on behalf of the child(ren). Additionally, adjustments to support are made to account for the amount of parenting time exercised by the payor. The rationale behind this adjustment is that the more time you spend with your child, the more money you spend on a regular basis for his/her care, and this warrants a reduction in the amount of support paid directly to the other parent. You can estimate your monthly child support by visiting the Pima County Superior Court website at www.supreme.state.az.us/childsup.

All child support in Arizona must be paid by wage assignment. Wage assignment is an Order sent by the Court to the paying parent’s employer, and the employer then deducts the child support payment from the parent’s gross income and sends it to the State Clearinghouse for distribution. The State then issues a check to the support recipient.

The Child Support Guidelines address not only the amount of monthly child support, but also how certain other expenses for the children and deductions for the children should be allocated or shared between the parents. For example, under the Guidelines, the parents will typically divide the tax deduction for the children in the same proportion as the percentage of support they provide under the guidelines. Therefore, if a parent makes 60% of the income and pays 60% of the support, he or she may take the deduction 60% of the time. Some of these collateral issues can be very important, such as the payment of uncovered medical expenses for a child with special health needs, so be sure to consider all expenses associated with the care and education of your child and discuss them with your attorney in detail. Failure to do so could result in an inadequate or inappropriate child support order.

MARITAL AGREEMENTS:

A pre-nuptial or post-nuptial agreement is a written contract that defines the rights and obligations of each party with respect to his/her separate and/or community property. Absent such an agreement, the general principals of community property law would govern at the time of dissolution. Click here for more detailed information about the division of assets and debts under community property law.

While these agreements are becoming increasingly common, they are still somewhat controversial and subject to legal challenge. Among the primary considerations in drafting a pre or post marital agreement are whether the parties have both provided complete and full disclosure of assets and debts to one another, and whether consent to the agreement was a fully informed, voluntary act. Therefore, it is best that each party separately consult with an attorney of his/her own choosing and conduct careful discovery. Failure to take these precautionary measures may result in the agreement being set aside.

Under the current statutes and case law in Arizona, post-nuptial agreements are more vulnerable to challenge than pre-nuptial agreements. For this reason, if you are considering a marital agreement, it is best to address those issues well in advance of the marriage. In many cases, however, the parties find that they aren’t adverse to sharing those assets they acquire during marriage, they just want to protect their pre-marital separate property. This can be accomplished with some simple planning that may not require a pre-nuptial agreement. Your attorney can advise what would be appropriate under your specific circumstances.

Parties should be aware that the right of a child to support cannot be adversely impacted by the provisions of a pre-nuptial agreement. They should also know that some written documents, such as a Will, drafted prior to execution of the pre-nuptial, will be invalidated by the agreement, so new estate planning documents will need to be prepared after signing the agreement.

PATERNITY:

Some fathers mistakenly believe that if their name is on the birth certificate, then paternity has been established and they have the same rights and obligations with respect to the child as the mother may have. Other fathers mistakenly believe that if their name isn’t on the birth certificate, then they don’t have any obligation to support the child born to them. Both of these misconceptions have resulted in unfortunate situations for fathers in the past, but these pitfalls can be easily avoided with some planning and preparation in a paternity matter.

While there is a legal presumption that the father named on the birth certificate is a child’s natural father, this element alone is not sufficient to establish paternity. When a child is born out of wedlock, the parents should file with the Court an Acknowledgment of Paternity together with an Order for the Court to sign, which will establish the identity of the child’s natural, legal parents.

Most parents believe that they can and will cooperate in raising their child together, but sometimes circumstances change, communication breaks down and the parties cease to cooperate. For that reason, in any paternity matter, it is a good idea to have a Joint Parenting Plan in place that sets forth each parent’s respective rights and obligations with respect to their child. Without such a plan, the parent who has had physical custody of the child for the past six months has sole legal custody, the exclusive right to make legal decisions for the child. The other parent can petition for rights of legal and/or physical custody, but it may be some time before those rights are established through legal proceedings. In the meantime, the non-custodial parent is left to negotiate for whatever parenting time and access the other will allow. This can be a terrible situation for parent and child, and it can be avoided with advance planning. Click here for more detailed information about rights of custody.

If two parents co-habitate, then the Court will assume that they are sharing the support obligation for their child. However, if parents live separately, then they should have written Child Support Orders filed with the Court, even if they are cooperating with one another in all matters pertaining to the child. If the parties cannot agree upon the issue of child support, then the Court will decide the matter pursuant to an action being filed to establish support. If support is not established from the start, the custodial parent can request payment for past care and support. In a paternity matter, the Court can make an order for support retroactive up to three years, meaning that a parent can be ordered to pay for the past three years of a child’s care and support.

Pending the establishment of paternity through an Acknowledgment or DNA testing, the Court can order a man to pay support for a child if it finds that there is a reasonable basis to presume that the man is the child’s natural father. This can sometimes result in a man paying support for a child later determined not to be his own. This can also result in a man paying support, even when he does not have the right to make legal decisions for the child or the right to spend parenting time with the child. These situations may seem unfair, but the State has put these provisions in place to protect the welfare of children. Click here for more detailed information about child support.