How to Divide Retirement Accounts after a Divorce

by John Schill | Oct 27, 2020 | Divorce

FAMILY LAW ATTORNEYS

MORE THAN 100 YEARS COMBINED EXPERIENCE

How to Divide Retirement Accounts after a Divorce

Divorce is a difficult process in more ways than one. For instance, you’ll probably need to learn the significance of the terms such as qualified domestic relations order, QDRO, and QDRO process before it’s all said and done. And that’s only part of the new things you’ll pick up quickly if you want to protect yourself financially during and after a divorce.

We’re not going to sugarcoat things and say that learning about those things beforehand will make the whole ordeal easier. The reality is that the divorce will likely still be hard on you. What’s important, though, is that you’re doing all you can to preserve your finances while also giving yourself a sturdier leg to stand on moving forward.

Learn more about how dividing retirement accounts work during a divorce and prepare yourself properly for what lies ahead.

What Is Considered Shared Property and What Is Not?

Before we get to the machinations of dividing retirement accounts, we first need to determine which funds are subject to the divorce proceedings. Labeling those assets properly matters during the process of division.

Let’s start by identifying the assets that don’t count as shared property.

The courts do not consider funds that you receive as an inheritance or as a gift from someone as shared property. They do not need to be factored into the equation when the time comes to divide everything equally.

The assets that were under your name before you got married will also remain as your sole property.

Where things get a bit trickier is when you’re trying to portion out the funds in retirement accounts. Some of the funds found in there could be subject to division, while others may not.

If there were funds already present in your retirement accounts prior to getting married, they would regard those as separate properties. They will not be included in the calculations when the assets are divided.

The assets considered are the ones added to your retirement accounts throughout the marriage. They will also fairly divide other assets that were accumulated by both parties during the marriage.

How Retirement Accounts Are Divided

The process of divvying up the funds inside retirement accounts during a divorce will depend largely on what kind of account it is. To be more specific, it will depend on whether you want an individual retirement account (IRA) or a qualified plan divided.

Let’s start by discussing IRAs first because they are relatively simpler to divide and transfer.

Dividing IRAs

When it comes to dividing IRAs, both parties in the divorce will first need to specify which of their accounts count as such. The court will then take over from there.

The court’s role is to divide the assets included in the IRAs. They will determine how much you receive and how much your ex-partner will receive. Once again, the assets accumulated during the marriage are the ones they will count.

Dividing the funds included in IRAs is simple enough. Transferring them to different accounts is a bit more complicated.

Transferring the Funds from IRAs

You have two choices here when it comes to how they will transfer the funds from the IRAs.

First off, you could opt to spend the money you’re getting from those IRAs right away. In that case, prepare to pay some taxes.

As the recipient, you will pay income taxes on that new money that came in. You will likely pay a premature penalty since you are opting to withdraw the funds early.

It’s worth pointing out here that you may also end up paying those taxes and penalties if you’re not careful. Failing to indicate that you want those funds transferred to a separate IRA will result in the money being given to you right away. Because of that, you’ll still pay the taxes and penalties.

To avoid those taxes and penalties, you should indicate that you want a transfer incident. Upon deciding that you want the funds moved via a transfer incident, they will go from your ex-partner’s IRA to your new account. They will not ask you to pay for anything at this point if you decide to go with a transfer incident.

However, you will oversee how to use the funds once they transfer them to your new account. You can still take the money out ahead of schedule if the need arises but know that you’ll need to pay a possible penalty then. Your ex-partner will no longer have any say over how you use that money, and they will also have no other tax obligations.

Dividing Qualified Retirement Plans

Dividing an IRA is one thing. Both sides know how much money their IRAs contain, it’s easy to divide them between the two parties.

But what happens if the money isn’t available right away? In some cases, retirement assets are tied up in their retirement plans.

To resolve that matter, you can secure something known as qualified domestic relations order.

What Is a Qualified Domestic Relations Order?

The qualified domestic relations order, also known as a QDRO, is an order handed down by the court that indicates how they will disburse certain funds. More specifically, it lays out instructions for how the funds you’re entitled to that are currently in your ex-spouse’s retirement plan will be handled.

The QRDO can be used to dictate how your ex-spouse’s retirement plan will pay for their share of child support, alimony, or even cover for property rights that they could not divide equally. You can also have the funds funneled into a new retirement account you’ve set up.

Similar to transfer incidents, funds moved through QRDOs are tax and penalty-free. Note that funds coming from your ex-partner’s retirement plan that is not being transferred by a QRDO will still be subject to taxes and penalties.

As the recipient of the funds from your former spouse’s retirement plan, you have additional responsibilities to take on as well. The good news is that the most you’ll need to do is make regular reports about the payments you’re receiving. It’s an added chore, but one you should handle easily.

The Limitations of Qualified Domestic Relations Orders

You cannot automatically assume that the retirement plan your ex-partner has can be subjected to a qualified domestic relations order. Those orders don’t cover everything.

QDROs are limited only to qualified retirement plans as designated by ERISA or the Employee Retirement Income Security Act. Those retirement plans include defined benefit plans and defined contribution plans.

Dividing Defined Benefit Plans

Defined benefit plans are sponsored and managed by the employers. The employers themselves will usually share the formula they’re using so that their employees have a good understanding of how much they can expect to receive in the future.

According to Investopedia, you can use factors such as an employee’s salary and employment history to come up with the figure for the defined benefit plan. You should also know that you cannot withdraw the funds from a defined benefit plan easily. Those plans usually designate a specific age when they pay out, so calculating their final value can be put off until then.

Dividing the funds from defined benefit plans is hard to do because of how they are structured.

There is no set value to provide. Because of that, they will need to calculate to determine how much you are entitled to. Those calculations will be quite complex since they should only account for the benefits accumulated while the marriage was in effect.

The amount of money you receive from a defined benefit plan can also be determined by how you want it paid out.

You can opt to have the payment deferred and wait until the plan reaches maturity before claiming your share. As the ex-partner, you can have the option of claiming your share now, depending on the value of the defined benefit plan.

Regardless of how you want the benefits paid out, the court will still be the one to decide how to divide the funds between you and your former spouse.

Dividing Defined Contribution Plans

Compared to defined benefit plans, it’s easier to portion out defined contribution plans between two parties. The main reason is that the amount is clearly defined.

Employees contribute a fixed percentage or amount of their salary to their defined contribution plan. So, it’s easy to calculate how much one party has contributed to their plan over the length of a marriage, and that amount can be divided.

Investopedia does note that there are cases where the employers match their employees’ contributions to boost their benefits. You may get those additional contributions as the former spouse.

The court will again be the one in charge of determining how they divide the money from a defined contribution plan.

How to Secure a Qualified Domestic Relations Order

Given that there are other parties involved in the handling of retirement plans, securing a QDRO is not as straightforward as getting an order from a court. The plan administrator will be involved, and you will require the help of an attorney at this point.

You want to start working with an experienced attorney at this point because of how intricate retirement plans can be. Attorneys who haven’t spent that much time studying retirement plans may miss something important that, in turn, could cost you a good chunk of money once you finalize the divorce.

Leave the drafting of the QDRO to an attorney who has already dealt with retirement plans extensively in the past to ensure that you are getting your fair share. Opting to have an attorney take care of that will also free you up to focus on other matters that are related to your divorce proceedings.

Additional Tips for Securing Your Fair Share of Funds from Retirement Accounts

Working with a knowledgeable attorney is how you can avoid getting the short end of the stick during asset division. Author, businessman, and financial expert Dave Ramsey has additional tips you can follow to protect your fair share of the money.

Secure the Separation of Finances Immediately

Once you and your spouse have decided that your marriage is over, you should move right away to secure your finances. This means closing any joint accounts the two of you have and securing your portion of retirement plans as soon as possible. Acting this way will prevent your ex-spouse from potentially driving down the amount of money you are supposed to receive.

In addition to those actions, you may want to freeze your credit as you’re going through the divorce proceedings. That should prevent your ex-partner from pulling any funny business, such as taking out loans under your name.

Get Everything Down in Writing

You and your ex-partner reaching an agreement regarding how you’ll divide your assets would be ideal. That’s not something you typically want to leave up to the courts.

However, you shouldn’t buy into everything your ex-partner is saying, either. If the two of you do have an agreement, insist on getting it down in writing and make sure that it’s legally binding. That will ensure it holds up in court, and you don’t end up getting blindsided.

Educate Yourself about Retirement Accounts

Remember that those QDROs are helping you receive money from retirement plans. Now would be a good time to learn more about those retirement plans if you haven’t started reading up already.

While you’re at it, you can also use this time to find out how to best use that money. You may have a tough time adjusting to living on a single income again and saving up for your future following the divorce. Find out how you can best use that money to keep yourself financially stable.

The division of retirement accounts following a divorce can turn into a complicated undertaking. Enlist the help of experienced attorneys to make it more manageable. Reach out to us at the Schill Law Group and allow us to help get those financial matters sorted.

How to File for Divorce in Arizona

by John Schill | Oct 26, 2020 | Divorce

DIVORCE ATTORNEYS

MORE THAN 100 YEARS COMBINED EXPERIENCE

How to File for Divorce in Arizona

No one enters a marriage with the belief that it will be temporary. Sadly, some marriages cannot be salvaged for one reason or another, hence why it’s important to know how to file for divorce.

Having that important bit of insight can save you from additional grief while you’re going through a difficult time. Knowing about the process of divorce also allows for an amicable split. On top of that, you can ensure that you’re not treated unfairly by knowing about divorce proceedings beforehand.

Divorce is not fun, but it becomes a necessity for certain couples. Hopefully, going through the process correctly will at least help minimize some of the difficulties associated with it.

How Divorce Is Different in the State of Arizona

The process of a divorce in Arizona is not completely similar to other states across the country. Arizona legally refers to the process of divorce as the dissolution of marriage.

While that is a notable distinction, it’s one that does not have much of an impact on actual cases. The restrictions placed on how long individuals must wait before they can push forward with a divorce are more impactful.

According to the Judicial Branch of Arizona, residents must wait for at least 60 days from the date of their marriage before they can go ahead with the dissolution of marriage. That’s not the only time-related requirement residents have to meet if they want to get divorced.

There is also a time requirement on being domiciled that residents must abide by. This particular requirement dictates that the parties pursuing the dissolution of their marriage must be domiciled in the state for at least 90 days prior to filing.

Being domiciled means that the involved parties have treated Arizona as their primary state of residence. The parties involved can demonstrate that they do indeed regard Arizona as the state where they live in. Registering to vote in the state is only one of those actions.

If you and your spouse have met those requirements for dissolution, either one of you can push ahead with the divorce proceedings.

The Important Matters to Discuss Prior to Divorce Proceedings

How quickly you finalize the divorce will depend on a variety of factors. Assuming that you and your soon-to-be-ex are at least on speaking terms, it’s worth discussing the following matters to speed up the dissolution process.

Custody of the Minor Children

One of the primary concerns for many parents and the law during divorce proceedings is the matter of custody. In situations where minor children are involved, the parents and perhaps the courts will have to decide the custody between the two parties.

Being on good terms with your partner will be helpful here. Together with your attorneys, the two of you can discuss a variety of topics related to your children.

You and your co-parent can discuss how you will divide parenting time. Do the two of you want to have rotating schedules, or would you prefer splitting the weekends and weekdays?

Aside from the issue of parenting time, you and your co-partner must also agree on how you make decisions related to your children. Will the parent who is currently watching over the child have the right to make all decisions during that time, or will consultations be necessary?

Discussing how to handle custody would be best for all parties involved. That way, both sides will be content with the arrangement, and the young children involved will not be subjected to conflict needlessly.

If you and your co-parent cannot agree regarding custody, the judge does that for you.

Child Support

You cannot discuss matters related to custody without also talking about child support. Child support refers to the financial obligations that parents have to their children.

It doesn’t matter whether you are the parent awarded with primary custody or the non-custodial parent, supporting your child remains your responsibility all the same. There is no set amount for how much child support you must pay, but it has to be a reasonable amount.

Co-parents can discuss exactly how much child support they will both cover ahead of the divorce proceedings. You can discuss the payments during that time. If the two of you cannot reach an agreement, the courts may step in and establish the child support terms themselves.

Maintenance or Alimony

Arizona legally refers to alimony as maintenance. Since we touched on the issue of child support above, you may be wondering why we’re bringing up alimony now.

After all, they’re both referring to the same payments, right? Well, not exactly.

Unlike child support, maintenance is not about meeting the financial needs of your child. When we’re talking about maintenance, the focus is more on maintaining a certain standard of living for your ex-partner. That’s because maintenance is supposed to cover for the unequal division of assets.

Also, in stark contrast to child support, you can spend maintenance payments however you deem appropriate. It’s also worth pointing out that alimony can take forms other than monetary payments. One partner may also provide certain goods and/or services to the other in lieu of financial support.

Maintenance is another topic you will want to discuss at length with your former spouse. Failing to reach a compromise will again lead to the courts getting involved.

Division of Assets

Last but not least, asset division is another matter you should talk to your ex-partner about. Generally speaking, the courts will seek to equally divide all the assets that the two parties acquired throughout the marriage.

The reason why it’s worth taking the time to talk to your ex-spouse first is to clarify which of your assets were obtained prior to getting married. Doing so can lead to a less contentious dissolution and greater clarity when it comes to maintenance.

The Divorce Proceedings

Whether or not the discussions with your soon-to-be ex-spouse were productive or not, you can still start the divorce proceedings. We’ll discuss how to file for divorce in this section of the article.

Step 1: Obtain and Accomplish the Petition for Dissolution of Marriage

The divorce process starts when you get your hands on a petition for dissolution of marriage. This is the document that the court will repeatedly reference throughout the divorce proceedings.

Fill the petition out carefully and make sure that you provide all the requested details. It’s also a good idea to fill out the form under the supervision of an attorney to avoid making any costly mistakes.

Step 2: Complete Other Relevant Documents

The petition for dissolution of marriage may be the most important document for completing divorce proceedings, but it’s not the only one you’ll need. In addition to that petition, you’ll also need to fill out the preliminary injunction, the summons, the sensitive datasheet, and several other documents. Once again, you should strongly consider completing those documents while in the company of an attorney to avoid errors.

Step 3: File the Petition for Dissolution of Marriage and Other Documents with the Court

After completing all the necessary documents, you can now move ahead to filing. Head over to the courthouse covering your area and look for the clerk of court. That’s the person who will accept your filing.

Note that there are also rules you need to follow when filing, so take care to abide by those. You will also pay a fee upon filing.

Once you file, you will have a case number. Remember that case number so that you can complete future proceedings to your divorce faster in the future.

Step 4: Serve the Petition for Dissolution of Marriage and Other Documents to the Other Party

With the documents completed and filed, you can now proceed to the next part of the divorce process. Service is that next part of the process, and it can be quite complex.

The purpose of serving the other party the paperwork is to give them legal notice of what you intend to do. You can go about serving the documents in one of two ways.

The first method involves enlisting the help of an unrelated party in delivery. Approach a registered process server or a law enforcement officer tasked with serving papers to make the delivery to the other party.

The other method involves having the other party sign an Acceptance of Service prior to serving the documents. To be considered valid, the signing must take place in front of a notary or a clerk of the superior court. It’s also worth pointing out here that you cannot deliver the documents yourself unless the other party signs that Acceptance of Service.

Now that you’ve served the other party with the relevant documents, you can return to the clerk of court and file the proof of service.

Also, you must serve the documents to the other party within 120 days after your initial filing.

Step 5: Wait for the Response of the Other Party

You’ve been doing all the work up to this point. Now that you’ve served the papers and filed the proof of service, you can sit back and wait for the response of the other party.

The respondent (person you served with the documents) will now be given up to 20 days to file a response to your petition if they also live in Arizona. If the person you served doesn’t live in Arizona, they will be given up to 30 days to respond following the filing.

In cases where the respondent was made aware of the petition via publication, they will have more time to respond. To be more specific, they will be given up to 60 days to respond from the day of the notice’s initial publication.

Don’t worry if the other party does not respond within the allotted period of time. The case can proceed by default if they fail to respond promptly.

Step 6: File a Consent Decree if the Two Parties Agree to the Dissolution of Their Marriage

If your ex-spouse agrees to the terms of the divorce and indicates as such in their response, you can expect smooth sailing from here. The next step will involve the two of you filing consent decrees.

Those consent decrees will detail the terms of your divorce. File those consent decrees with the court and wait for further instructions. You may need to make an additional appearance in court, but that may be to finalize the divorce.

Step 6A: Attend a Default Hearing

Let’s say that your ex-partner did not respond to the petition. In that case, they may set a default hearing to push forward with the proceedings. This hearing will allow you to get divorced by default.

You will need to file an application and affidavit of default to get divorced and send a copy of that to the other party. If the other party still fails to respond after 10 days, your divorce will push through.

Step 6B: Go to an Early Resolution Management Conference

Now, if your ex-spouse does respond and indicate that they do not agree with the terms set, the court may order the both of you to attend an Early Resolution Management Conference. That conference is supposed to help the two of you agree to the terms of your divorce.

Coming to a compromise during that conference will help speed up the divorce proceedings.

Step 6C: Take Part in a Trial

If you and your partner are still far apart on the terms, a trial may go to court. Trials can be costly and time-consuming, which is why we recommend that you speak with the other party before you start the divorce proceedings.

Step 7: The Dissolution of Marriage Is Finalized

Whether you went through a relatively civil divorce or had to go through a contentious trial, you will still finalize the divorce. The courts will also hand down the decree of dissolution of marriage at this point.

Divorces can be messy, tiring, and costly, but they may also be ultimately necessary. Make sure that the final terms of the divorce are fair to you by working with an experienced and highly skilled attorney. Contact us at the Schill Law Group and allow us to help you navigate the trying time that is your divorce.

9 Common Factors of Divorce in Arizona, from Start to Finish

by John Schill | Jul 20, 2020 | Alimony, Child custody, Child Support, Divorce, Legal Seperation, Parenting, Visitation

Defending the People of Arizona

With more than 100 Years of combined experience

9 Common Factors of Divorce in Arizona, from Start to Finish

Many people who decide to divorce have never been in court and are unfamiliar with what to expect. If you want to end your marriage, you will have to go through the divorce process. While there are certain exceptions through which you might be able to get an annulment, most people will need to go through the divorce process to terminate their marriages.

In Arizona, this process is called a dissolution. When you go through the dissolution process, you will need to make decisions about many different issues, including community property, debt and asset division, spousal maintenance, child custody and visitation, and child support. By understanding the divorce process, you might be able to anticipate what to expect.

The attorneys at the Schill Law Group can help to guide you throughout the process and demystify it for you. Here is an overview of the stages of a divorce from its beginning to the end.

1. Filing the Petition for Dissolution

The first step to take when you want to get a divorce is to file the petition for dissolution. Under A.R.S. § 25-311, people must make sure to file their petitions for dissolution with the court that has jurisdiction to hear the matter.

Under A.R.S. § 25-312, one or both of the parties must have been domiciled or serving in the military in Arizona for at least 90 days at the time that the petition is filed. Your petition will be filed along with a summons and other documents, including a preliminary injunction, request for temporary orders, and others that apply to your situation. In your petition, you will list what you are requesting about property division, spousal maintenance, child custody and visitation, child support, and attorney’s fees and costs.

2. Service of Process and the Response

After your petition and other documents are filed, the court will issue a notice and summons to respond. You must serve copies of the petition, the summons, and any other legal documents that you have filed in the case of your spouse. You will be called the petitioner, and your spouse will be called the respondent. You can hire a private process server or use the sheriff’s department to serve your spouse.

However, if you can get your spouse to agree to waive service of the documents, he or she can sign a waiver that can be filed with the court. Once your spouse has been properly served with notice of your divorce, he or she will have time to file the response. If your spouse lives in Arizona, he or she will have to respond to your petition within 20 days of when he or she was served. If your spouse lives out of the state, he or she will have 30 days to file his or her response. Under Arizona law, the only defense to a petition for dissolution in a regular divorce is that the marriage is not irretrievably broken under A.R.S. § 25-314. If your spouse fails to respond to the petition after being properly served, the court can grant a default divorce decree after 60 days from the date of service.

3. Temporary Orders

In some cases, people will file requests for temporary orders or preliminary injunctions at the time that they file petitions for divorce under A.R.S. § 25-315. Either party can ask for temporary orders, including the respondents. These orders establish the rules for how different things will be handled while the divorce is still pending.

For example, you might ask for temporary orders for child custody and visitation, child support, who will remain in the house, who will be responsible for paying the bills, and spousal maintenance. A preliminary injunction might be issued by the court to restrain both you and your spouse from spoliating or disposing of the property before the divorce is completed.

It can take a few months before temporary orders are issued. If there is an emergency, a spouse can request emergency temporary orders that can be heard much faster.

4. The Discovery Process

Once the petition and response have been filed, the divorce case will move into the discovery phase. Both you and your spouse are entitled to receive information from each other about your assets and other relevant factors about your case.

The process for obtaining the needed information is called discovery. It can be a straightforward process in some cases. In others, it can be time-consuming and expensive. In most cases, the size and value of your estate and the length of your marriage can impact how much discovery is necessary.

The discovery phase might involve several procedures. Your lawyer will submit and receive information for you, but you will also need to provide input. Interrogatories are written lists of questions that you can send to your spouse. Your spouse can also send interrogatories to you. If you receive interrogatories, you must respond with written answers within a set period.

If you need certain documents that have not been provided to you, your attorney can file a request for the production of documents to secure them. Either you or your spouse can schedule a deposition. This is an out-of-court proceeding during which you, your spouse, and other witnesses may be asked questions under oath and in person. When a deposition is held, a court reporter will be present and will prepare a transcript of what occurred. The attorneys will ask the questions at a deposition.

In some cases, attorneys can complete discovery without resorting to the formal processes that have been described above. This is almost always less expensive and more efficient than going through a more formal process.

5. Negotiating a Settlement

Other than in cases that involve domestic violence, drug or alcohol abuse, child abuse, or people who are possibly hiding assets, it is often best to try to resolve a divorce case by negotiating a settlement agreement. People who can negotiate divorce settlements are often happier than those who leave the decisions up to the judge.

Negotiated settlements give the parties greater control and privacy. Spouses who reach negotiated settlements are likelier to comply with them than they are with orders from a court. If you reach a negotiated settlement with your spouse, you can file it in court. As long as the judge finds that your agreement is fair and conscionable, your settlement agreement will be a part of your final divorce decree.

Judges may sometimes order mediation to try to encourage the parties to settle their cases. In many cases, people can resolve many of their outstanding legal issues during mediation. Your lawyer can represent you during mediation. While he or she may recommend that you reject or accept a proposal to settle, the decision will be yours.

6. Divorce Trial

If you cannot reach a settlement agreement with your spouse, your divorce case will go to a divorce trial. At your trial, you will each be provided with the opportunity to present evidence, call witnesses, give testimony, and submit exhibits. You and your spouse will likely have to testify and to submit to cross-examination by the opposing attorney.

If your case does go to trial, it will likely be more expensive. In some cases, it might be the only way to reach an end to your marriage. You should keep in mind that trials are risky. Your attorney cannot predict the outcome for you. The judge will issue his or her orders as he or she understands the case. The judge will not know you or your spouse but will be given the power to tell you how to live your life after your divorce.

In some cases, a trial will not be the final step of a case. If you or your spouse are unhappy with what happened, either of you can file an appeal. If an appeal is filed, more time and expense will be involved. Appeals are also difficult to win.

7. Divorces with Children and Custody Issues

If your divorce will involve child custody issues for the minor children that you share with your spouse, you will have to file a petition for dissolution with minor children. For this type of divorce, you and your spouse will need to try to negotiate a parenting plan. If you cannot reach an agreement, you will each need to submit a proposed parenting plan to the court.

Child custody and visitation issues are frequently among the most contentious issues in divorce. They can also present added challenges for your attorney. While your lawyer is loyal to you, he or she also must keep the best interests of the children in mind.

Your parenting plan will include information about legal decision-making authority and parenting time for you and your spouse. Legal decision-making authority refers to which of you will have the ability to make decisions for your child’s religion, education, and medical care. Parenting time refers to where your child will reside and how much visitation time he or she will have with the other parent.

Legal decision-making authority and physical custody may both be either sole or shared. Your attorney can explain how this might look and advise you on the types of custody that might be most appropriate in your situation. Parents who are divorcing, with minor children, will also be required to attend parenting classes.

8. Determination of Child Support

Another issue that will be at play in a divorce with children in Arizona is child support. Under A.R.S. § 25-501, both parents are expected to contribute financially to the upbringing of their child. Arizona has child support guidelines for courts to use to determine the amount of support to order. This can help to make the amount of child support that you might have to pay or might receive more predictable.

9. Keeping the Best Interests of Your Children in Mind

If you cannot reach an agreement with your spouse about child custody issues, the court will follow the factors that are outlined under the best interests of the child standard in A.R.S. § 25-403. Regardless of whether you take your child custody issues to trial, you should conduct yourself in a way that will minimize the emotional harm to your children during and after your divorce.

Always put your children first. You should never try to use them as a weapon against your estranged spouse. Do not talk badly about your spouse to your children or in front of them to others. Encourage your children to spend a lot of time with your spouse. Remember that divorce is just as hard on children as it is on the adults.

However, children are less equipped to deal with the emotional conflicts and fallout that divorce can bring.

You should not introduce your children to your new romantic interest until they have had plenty of time to adjust to their new reality. You should also not take your children with you to your attorney’s office or the court. Be flexible and try to stick to the schedule that has been ordered or that you have created with your spouse.

Talk to your spouse about discipline issues and try to reach an agreement so that there can be continuity between both of your homes.

Complete Help from the Phoenix Divorce Lawyers at the Schill Law Group

Getting divorced is not easy for most people. If you want to end your marriage or have been served with a petition for divorce, contact the Schill Law Group for help and guidance through difficult times. Call us today at 480.525.8900 to schedule a consultation.

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Divorce Involving Children in Arizona

by John Schill | Jul 3, 2020 | Child custody, Child Support, Custody, Divorce, Parenting, Paternity

Defending the People of Arizona

With more than 100 Years of combined experience

Divorce Involving Children in Arizona

The decision to divorce can be difficult for any couple in Arizona. When a divorcing couple shares children, the process can be even harder on everyone involved. Divorces involving children will involve all of the other legal issues of other types of divorces, including property division and the potential for spousal support.

However, when children are involved, the couple will need to contend with child custody, child support, and the potential for parental relocation. Working with an experienced family law attorney at the Schill Law Group might help you to resolve your legal disputes when you are going through a divorce with children in Arizona.

How is the Divorce Process Started?

To begin the divorce process in Arizona, the spouse who wants to get divorced will need to file several legal documents. The initial document that must be filed in a non-covenant dissolution involving children is the petition for dissolution. Together with the petition, most people also file the preliminary injunction, which is a document that will result in an order that prevents either party from selling, transferring, or giving away the marital property until the property division has been determined.

Some women choose to file a request to restore their maiden names. An order and notice form for both parents to attend the required parenting classes should be filed. Finally, a summons must be filed. The filing fee will need to be paid at the time the petition is filed. Once the documents are filed, the court will issue the summons. The summons and copies of the petition and other legal documents will then need to be served on the respondent spouse.

Once the petition and other documents have been served on the other spouse, both parents will be required to complete the parenting classes within 45 days. The parties will also need to submit a parenting plan to the court if they have reached an agreement. If they have not, each spouse can submit a proposed parenting plan to the court to be litigated during a hearing. The court will not issue a divorce decree until the classes are completed.

Once the court has received all of the documents, the judge will make sure that the court has jurisdiction to hear the case. To meet the residency requirements, one of the spouses must have lived in the state for 90 or more days. If both spouses agree to everything, including the determination of custody and support, there will be a 60-day waiting period after the service of the petition before a final decree can be issued.

How is Child Custody and Visitations Handled While the Divorce is Pending?

A court can issue temporary orders when a petition for dissolution is filed. These orders can be used to determine which spouse will remain in the marital home during the pendency of the divorce, whether one spouse will be ordered to pay spousal maintenance to the other spouse, who will be responsible for paying specific bills, and where the children will live. If the parties agree, some of the temporary orders might become permanent orders.

In most divorces involving children in Arizona, the spouse who files a petition for dissolution will also file a request for temporary child custody orders. Parents file these requests to outline where the children will live and how visitation with the other parent will be handled until the final decree is issued.

The goal should be to minimize the upheaval in the lives of the children as much as possible. When the court decides what temporary orders to issue, the judge will consider what is in the child’s best interests. The temporary orders will normally outline where the children will live, the type and amount of visitation the children will have with the other parent, temporary child support, legal decision-making, and a protective order to prevent one of the parents from kidnapping the children or withholding them from the other parent.

The following factors are important to understand when thinking about temporary orders:

Temporary orders will normally remain in effect until the divorce process is completed.

The orders will be issued under the best interests of the child standard.

Temporary orders can be contested.

The parents must follow the orders or face potential criminal consequences.

Temporary orders may become permanent if the parents agree.

It can take a couple of months before the court will hear a request for temporary custody orders. Either party can file a request for emergency temporary orders that can be heard within 24 hours. Normally, the requesting parent will need to show that the children might suffer irreparable harm without an emergency order.

In most of these types of cases, mental health issues, alcohol abuse, drug abuse, child abuse, or domestic violence is involved. Most of these types of requests are heard ex parte, which means that only the requesting party will appear. The judge will base his or her decision on the testimony and declarations made by the requesting party.

If the court grants the emergency custody order, a return hearing will be scheduled within seven days. The respondent spouse will then have a chance to gather evidence to contest the order and the allegations that the petitioner has made. Based on the evidence and testimony at the emergency order return hearing, the court might issue temporary orders, dismiss the emergency temporary order, or modify it.

What is the Standard Used for Determining Child Custody?

In Arizona, the courts follow the best interests of the child statute when they make child custody decisions. This standard involves the court’s consideration of several factors, which can be found at A.R.S. § 25-403. Under this statute, the courts consider the following factors:

The relationship between the child and the parent in the past, present, and likely future
The child’s relationship with the parent, siblings, and others in the home
How well the child is adjusted to his or her school, home, and community
The child’s wishes as long as he or she is of a suitable maturity and age
The physical and mental health of all of the involved parties
Whether one parent is likelier to encourage frequent and continuing contact with the child’s other parent unless domestic violence or abuse is involved
Whether one of the parents misled the court intentionally
Whether child abuse or domestic violence has occurred
Whether one parent engaged in coercion or duress to secure an agreement
Whether the parents have completed the required parenting classes
Whether one of the parents has been convicted of falsely reporting child abuse or neglect

When the decision making and visitation are contested, the court will make written findings of each of the factors that the judge took under consideration. The court may also consider other relevant factors in addition to those on this list.

What are the Types of Custody in Arizona?

When people think about child custody, they normally think about where the child normally will live. In the legal context, however, legal child custody refers to which spouse will have decision-making authority for important decisions regarding the child’s education, health care, and religious upbringing.

The physical custody of the child involves where the child will live and how much time he or she will spend at each home. Both legal custody and physical custody can be either sole or joint.

Sole Decision-making

Sole decision-making occurs when the court grants the legal authority to make important decisions about the child’s upbringing solely to one parent. Courts generally prefer to order joint decision-making unless there is a compelling reason to do otherwise, including child abuse, domestic violence, drug abuse, or something else.

When a parent is awarded sole decision-making authority, he or she will be able to make important decisions about the child’s religious upbringing, medical care, and education without having to consult the other parent. In some situations, the court might grant sole decision-making authority to one parent over one area and sole decision-making authority over a different area to the other parent.

Joint Decision-making

Joint decision-making is generally favored by Arizona courts. When joint-decision making is ordered, both parents are expected to participate in making decisions for their children. If it is ordered in your case, you will need to consult with your ex-spouse before making unilateral decisions about the education, medical care, or religious upbringing of your shared children.

Residential Custody

Residential or physical custody of a child refers to where the child lives most of the time. When one parent has primary physical custody, the child resides with that parent most of the time. The other parent will have visitation according to the schedule that the parents or the court determine.

In cases in which abuse, domestic violence, or substance abuse problems have been an issue, one parent may have sole physical custody while the other party might only have supervised visitation.

How is Child Support Determined?

Under A.R.S. § 25-501, Arizona expects both the custodial and non-custodial parents to contribute financially to the upbringing of their children. The courts have guidelines that judges follow when issuing child support orders. The guidelines take into account the relative incomes of each parent, whether they have other children to support, the amount of time the children spend with each parent, and any extraordinary expenses a child might have, among other factors.

The factors that the courts take into account when determining the amount of support to order are listed in A.R.S. § 25-320.

Child support will normally be ordered to continue until a child reaches age 18 or graduates from high school. However, the court can order support to continue past the age of majority. For example, the court might order support payments to continue if children go to college or if they have developmental disabilities. Courts can also deviate from the guideline amount in certain situations.

Schill Law Group can Help With Complex Divorce

Getting divorced is difficult for most people. When children are involved, the divorce process can be more complicated because of the number of issues that may be involved. If you are planning to divorce and share children with your spouse, contact the Schill Law Group today to learn about your options by calling us at 480.525.8900.

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What Does “Best Interest of a Child” Mean?

by John Schill | Jun 15, 2020 | Child custody, Custody, Divorce, Legal Seperation

Defending the People of Arizona

With more than 100 Years of combined experience

What Does “Best Interest of a Child” Mean?

When parents of a child have a dispute over custody, the family court is required to make its custody decision based on what is in the best interests of the child. This is a legal standard that includes several factors that must be considered by a judge who is hearing a child custody matter.

Family court judges use the best interests of the child factors to make decisions about parenting time, custody, and modification requests. If you are involved in a dispute about the custody of your child, the attorneys at the Schill Law Group can help you to understand how this standard might be applied in your case.

What Issues Must be Determined in a Child Custody Case in Arizona?

When Arizona courts hear child custody cases, two issues must be decided. The first issue that a judge will need to determine is the physical custody of the child. This refers to which parent the child will live with and the amount of visitation the other parent will enjoy with the child.

The second issue that a judge will need to decide is the legal custody of the child. Legal custody refers to which parent will have the authority to make decisions for the child. These two issues are referred to as parenting time and decision-making authority in Arizona instead of physical and legal custody.

Instead of letting the court make decisions about parenting time and decision-making authority, parents should try to negotiate with each other to reach an agreement. In many cases, parents are happier with the outcome when they can reach negotiated agreements with the help of their lawyers instead of leaving the decisions up to the court.

After reviewing the best interests of the child factors, the court might issue any of the following orders:

One parent could be granted sole legal decision-making authority and sole parenting time with limited or supervised visits for the other parent.
Each parent could be granted sole decision-making authority over different types of decisions with shared parenting time.
Both parents could be granted joint parenting time and shared decision-making authority.

In some cases, the parents will not be able to agree on parenting time and decision-making authority. If this happens, the court will listen to the evidence and issue orders about the issues for which the parents were unable to agree. When the court makes the decision, the judge will follow the best interests of the child standard.

What is Arizona’s standard for Best Interests of the Child?

The best interests of the child standard are codified at A.R.S. § 25-403, which includes the factors that the courts are expected to consider when they make custody decisions. The factors that the courts must consider when determining what is in a child’s best interests include all of the following:

The relationship the child has had with each parent in the past, the relationship that the child has with each parent currently, and the potential future relationship that the child might have with each parent;
The relationship that the child has with each parent, any siblings, any stepsiblings, and others in the home;
How well the child is adjusted to his or her current home, community, and school;
If the child is old and mature enough, the child’s wishes;
The physical and mental health of all of the parties;
In all cases that do not involve domestic violence or abuse, whether one parent is likelier to encourage a continuous and meaningful relationship between the child and the other parent;
Whether a parent misled the court intentionally;
Whether child abuse or domestic violence has occurred;
Whether one parent used duress or coercion to secure a parenting time agreement;
Whether the parents have completed the required parenting classes;
Whether a parent has been convicted of falsely reporting child abuse;

In any child custody dispute that is handled by the court, these are the factors that the judge will be required to consider before making his or her decisions. When custody is disputed, the judge will also be required to make specific findings of each of the relevant factors that led to his or her decision.

You need to keep the factors that the courts consider in mind when you try to negotiate with your child’s other parent about parenting time. The factors can help to give you a better understanding of whether the court might grant you primary custody in a contested hearing. You can also use the factors to help to shape your parenting plan.

Joint vs. Sole Parenting Time and Legal Decision-making Authority

In Arizona, the courts are not supposed to have a preference for one type of custody. This means that a judge should not prefer joint vs. sole custody but should instead make his or her decision based only on what is in the best interests of the child. Under A.R.S. § 25-403.01, courts can award joint or sole legal decision-making authority. When they make their decisions about the type of custody to order, they are supposed to consider all of the best interests of the child factors as well as the following factors:

Whether the parents have an agreement about joint decision-making
Whether the lack of an agreement is due to something that is not included in the best interests of the child factors
The parents’ ability to cooperate when making decisions that will affect their child
Whether joint decision-making is logistically feasible

If a parent is granted sole decision-making authority, he or she does not have the power to change the court-ordered parenting plan on his or her own. Legal decision-making authority allows the parent or parents to make important decisions about their child’s education, religion, and health care.

If a parent has sole decision-making authority, he or she will not have to talk to the other parent before making a decision. If the parents share decision-making authority, they must consult with each other before making decisions for their child.

Parenting Plans and the Best Interests of the Child Standard

Under A.R.S. § 25-403.02, parents who are able to reach parenting-time agreements can submit a stipulated parenting plan to the court. The court will then issue the plan as the court’s order. If the parents cannot agree to a plan, they can each submit a proposed parenting plan for the court to consider. The court cannot have a preference for one plan over the other based on the parent’s gender.

Parents who do not agree on a plan will need to submit proposed plans about the decision-making authority of each parent for the child’s medical care, religious upbringing, and education.

The parenting plan should also include a schedule with details about where the child will be during vacations and holidays. They should also include a proposed schedule for visitation and how disputes will be resolved.

The plan should include information about how violations will be handled and provide for reviews of the plan. Each parent will have to sign a notice and agree that they understand that joint parenting time is not necessarily equal.

Child Custody Modifications and the Best Interests of the Child

Under A.R.S. § 25-411, a parent can file a request to modify a previously issued child custody order with certain limitations. People cannot ask for a modification of a previously issued order unless at least one year has passed since the previous order or something has happened that makes the court believe that the child is in imminent danger in terms of his or her emotional, physical, or mental health.

The court might also modify an existing order if child abuse or domestic violence has happened since the original order was issued, one or both of the parents have violated the order, or the custodial parent’s military deployment calls for a modification of the order.

Like other child custody issues, the court will consider the best interests of the child factors when deciding whether to grant the requested modification.

Get Help from the Custody Attorneys at the Schill Law Group

The experienced family law and child custody attorneys at the Schill Law Group can help you to understand the best interests of the child standard and how it might apply to your situation. We can help you to decide the type of custody arrangement that might work best for your family. Our child custody attorneys are skillful negotiators and might help you to resolve your outstanding disputes about custody and parenting time.

While reaching a negotiated parenting plan is often the best way to resolved child custody disputes, there are some cases in which litigation is more appropriate. For example, if there is a history of domestic violence, child abuse, drug abuse, or mental health issues involved in your case, it might be better to litigate the case through a contested hearing.

Our attorneys can help you to figure out the approach that you should take. Contact us today to schedule a free consultation by calling us at 480.525.8900.

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Legal Separation vs. Divorce in Arizona

by John Schill | May 31, 2020 | Divorce, Legal Seperation

Defending the People of Arizona

With more than 100 Years of combined experience

Legal Separation vs. Divorce in Arizona

Some couples in Arizona are not sure that they want to go through with a divorce while others want to remain married but be separated for a variety of reasons. Legal separation is an alternative to divorce for some people. People sometimes decide to seek a legal separation rather than a divorce because of finances, religious concerns, health insurance coverage, or the potential to reconcile at a later time.

If you are thinking about getting a legal separation from your spouse, the family law attorneys at the Schill Law Group can help you to determine whether a separation might be a good choice for you instead of a divorce.

What is the Difference Between Legal Separation and Divorce?

A legal separation has many similarities to divorce in Arizona. In both types of cases, the spouses will have separated their finances and community property and will live apart. Issues of child custody, visitation, child support, and spousal maintenance might also be decided.

However, the main difference between a legal separation and a divorce in Arizona is that people who are legally separated are still married. By contrast, a divorce terminates the marriage.

To get a legal separation, both parties must agree to pursue it. Under A.R.S. § 25-313, if one spouse objects to the legal separation, the court will order the pleadings to be amended to seek a dissolution instead of separation. By contrast, only one spouse has to agree for a divorce case to proceed under A.R.S. § 25-312 as long as the court finds that the marriage is irretrievably broken. Since Arizona is a no-fault state for regular divorces, this means that a divorce can be granted even if only one party wants it.

The legal procedure that is required to get a legal separation or a divorce is very similar. Both will require the filing of a petition. The petitioner will then need to serve the documents on the other party. The respondent will be able to respond to the petition. As long as both parties agree to the legal separation, they will negotiate with each other to try to reach a settlement agreement for the division of property, child custody and visitation, spousal maintenance, and child support.

If there are outstanding legal issues in dispute, they can be litigated in court. Eventually, a decree of legal separation can be issued. Legal separation and divorce cases also have identical residency requirements.

When a couple receives their decree of separation or dissolution, they will no longer have a community property relationship with each other. There will be both financial and physical separation. A legally separated couple will still be married and unable to marry other people, however.

Why Choose Legal Separation Instead of Divorce?

Couples choose legal separation instead of divorce for several reasons. While legal separation will end the financial relationship between the spouses, and they will live apart, they will still be married. Some spouses choose to do this because of health insurance reasons. For example, the spouses might agree to a legal separation when one spouse is on the other’s health insurance policy and is unable to get a separate policy.

Some people choose legal separation because of their religious beliefs. Others might choose legal separation as a trial to see if they truly want to divorce or if reconciliation might instead be possible.

How Long does it Take to Become Legally Separated in Arizona?

Under A.R.S. § 25-329, the waiting period for a legal separation or divorce is 60 days after the petition has been served by the petitioner on the respondent. This is how long it can take if both parties agree to everything, take their required parenting classes, and file all of their documents early.

If a case goes through litigation, however, it can take one year or longer. Cases that are resolved through mediation might take up to four months.

6 Things to Consider When Deciding Between Legal Separation or Divorce.

There are several factors that you should consider when you are trying to decide between legal separation or divorce. Thinking through each of them might help you to determine which process might be a better choice.

1. Your ability to remarry

If you and your spouse agree to a legal separation, you will still be legally married. This means that neither one of you will be able to marry someone else. If you choose to get divorced, either one of you will be legally allowed to get married again. While it might be hard to think about getting married again, you might feel very differently later.

2. Potential for reconciliation

Some couples choose legal separation because they think that it might be possible for them to reconcile later. If you and your spouse are going through difficulties and feel like time apart might be beneficial, a legal separation might be a good option. However, reconciliation will likely take some work and a willingness of both spouses to go to therapy.

If you are both willing to do this, getting a legal separation while you try to work things out can help to resolve some issues during the time that you live apart.

3. Not being emotionally ready for divorce

Some couples need to use legal separation as a step on the way to divorce. For these couples, a legal separation might allow them to work through their emotions until they are prepared for the permanent nature of getting divorced. If you are not emotionally prepared for divorce but know it is something that you will need to face in the future, you might prefer to get legally separated until you are ready.

4. Religious considerations

One of the primary reasons that couples choose to get legally separated instead of divorced is religion. If your religious beliefs do not allow you to go through with a divorce, a legal separation might be an option. However, your spouse will need to agree to a separation.

5. Health insurance

Some couples choose to get a legal separation because one spouse might not have access to insurance on his or her own. For example, if your spouse relies on your health insurance and has medical issues, you might decide to pursue a legal separation so that he or she can maintain his or her health coverage.

If you choose to divorce instead, your spouse will need to find health insurance on his or her own. In some cases, COBRA might allow a spouse to have some time to look for coverage. COBRA coverage can be very expensive, however.

6. Children and legal separation vs. a divorce

Children might find their parents’ legal separation to be just as difficult as if they got divorced. Whether you choose to pursue a legal separation or a divorce, you should expect it to be hard on your children. You and your spouse should keep the best interests of your children in mind in all of your decisions. Never say negative things about each other to your children or in front of them.

If you and your spouse believe that you will be able to reconcile, you can tell your children that you need to live in different places for a while. Your children should be told that the decisions that you make are not their fault and that you and your spouse still love them. If your marriage ultimately fails, your children will have time to get used to the new circumstances and potentially more able to handle your divorce. If reconciliation is not likely, you should be honest with your children. You do not want them to have false hopes that you will reconcile.

Deciding to Move Forward with Divorce, Schill Divorce Attorneys can Help.

Deciding to divorce or separate can be difficult. While you or your spouse might be against the idea of legally separating or getting divorced, it is important to understand that if either of you want to get divorced, it will move forward. Talking to an experienced family law attorney at the Schill Law Group might help you to sort through your thoughts and determine which process might be better for your situation and your family.

If you and your spouse opt for a legal separation, you can always convert it to divorce later.

The decision of whether to pursue a divorce or a legal separation is personal. Seeking the advice of a family law attorney is advisable in either case. To learn more about these different processes, contact the Schill Law Group today to schedule a consultation by calling us at 480.525.8900.

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