When I was in law school, my canned answer to the frequently asked question of “what type of law do you intend to practice” was usually something like “anything but divorce or criminal law.” I took many business law classes, and focused on bankruptcy law as well, and even worked as an intern/law clerk for Judge Haines in the bankruptcy court.
As I was working during the last two years of law school and after graduating from law school, I worked primarily with an attorney who practiced extensively in civil litigation (businesses suing businesses). While I enjoyed this practice area, I found that the occasional work that I got to do for the other partner who practiced in family law was more interesting, more rewarding, and somehow just seemed a better fit. At that time, I moved over into the family law world, where I have practiced at all times since (though I did help our bankruptcy department during the great recession years).
One of the things that I have enjoyed about family law is the fact that while every case is unique and different, and has its own specific set of challenges, there are only a handful of general categories of issues that need to be dealt with in any divorce case.
The first issue is whether to pursue a divorce (legally referred to as a dissolution of marriage), a legal separation, or an annulment. While the majority of clients pursue a dissolution or divorce, there may be reasons to go with a legal separation or annulment. As discussed in more detail later, both parties must agree if a legal separation is requested, and either party can demand it be a divorce rather than a legal separation. Annulments are more unusual and require specific circumstances generally not applicable to most marriages.
The Court must make certain jurisdictional findings in a case, to ensure that the Court is the correct court to be entering the orders related to a divorce case. This includes a requirement that at least one party has resided in Arizona for at least 90 days, as well as a requirement that the Court cannot grant a divorce until at least 60 days after the case is filed and the other party has been served (so that both parties have at least 60 days after notice of the case before the case is finalized).
The next issue is whether either party wishes to have their name changed, most typically the wife may wish to return to her maiden name. As a general rule, the Court will not care what Husband desires as to Wife’s last name, nor what Wife desires as to Husband’s last name, and the Court will allow either parent to determine their last name. Changing the children’s last names, however, is more difficult and can usually be accomplished only by agreement or under very unique circumstances.
The next issues relate to children, and are therefore not applicable in cases where the parties have no children, or the children have reached the stage in life where they have been legally emancipated. Child related issues include the computation of child support, including transportation expenses, medical insurance, uncovered medical costs, extracurricular activity fees, and the right to claim the children for tax purposes. The Court must also enter orders as to legal decision making authority, so that one or both parents (usually both) have authority to make major medical, major educational, and major religious decisions for the children. Finally, the Court must enter orders as to the parenting time that each parent will spend with the children, including the regular schedule, division of holidays and vacations, and other special occasions.
The court must also divide assets and debts between the parties in a way that is fair and equitable. This includes the large items such as houses and other real estate, vehicles, and financial accounts including retirement accounts. This also includes personal property such as furniture, personal effects, and other assets that the parties have acquired during the marriage.
While not applicable in each case, the Court must determine if either party is entitled to spousal support, and if so, how much and for how long.
Finally, the Court can order one party to pay all or a part of the other party’s attorneys fees and costs in a case. While the general rule is that each party pays his or her own attorneys fees and costs, the Court can consider 1) the reasonableness of the positions taken by each party and 2) the financial circumstances of each party, and can order one party to pay some amount of the attorney’s fees for the other party. The Court must make a determination that the amount paid is “reasonable” based upon the work performed and the complexity of the case at issue.
While there are innumerable things to fight about in any divorce case, all issues can be categorized into one or more of the above major topics.
If you are considering divorce or have child support issues, or if you have determined that you need experienced legal representation, please call 480-733-6800 and ask to speak with Douglas C. Gardner, or visit our website at davismiles.com. Douglas C. Gardner does family law representation. He handles prenuptial agreements, divorce, custody cases, Qdro’s and other complex family law issues.