• DOMESTIC
  
• AUTOMOBILE ACCIDENTS
  
• BANKRUPTCY

DOMESTIC:

• How fast can I get a divorce?

  The Superior Court cannot issue a Decree of Dissolution for a period of sixty days from the date of service or acceptance of a Petition for Dissolution.

• Do I need residency in the State of Arizona?

  Yes. One of the parties must be a legal resident or domiciliary of the State of Arizona for at least ninety days prior to the filing of the Petition (A.R.S. §25-312(1)).

• Does the mother always get full custody of the children? What are the factors taken into consideration in determining child custody?

  No. Under Arizona law either party has an equal chance at custody. The court will determine custody in accordance with the best interests of the child. The court will consider all relevant factors which are listed in (A.R.S. §25-332).

• What is community property?

  All property acquired by either husband or wife during the marriage, except that which is acquired by gift, devise or descent, is the community property of the husband and wife (A.R.S.§25-211).

• What is an uncontested divorce?

  It is an action for divorce where both parties agree to the contents of the Petition for Dissolution and/or the Respondent does not file a response to the Petition.

• Am I entitled to the payment of spousal maintenance (alimony) from my spouse?

  There are many factors which the Court takes into consideration when determining the award of alimony. It is impossible to discuss all of these factors here. A detailed list can be found at A.R.S. §25-319.

• What are the grounds to obtain a divorce?

  Arizona is a nofault divorce state. There are no grounds necessary. However, the provisions of A.R.S. §25-312 must be met. This does not apply to covenant marriages.

• I have a covenant marriage, what do I need to know to secure a divorce?

  Arizona has two types of marriages, standard and covenant. A covenant marriage requires grounds for divorce and is not Nofault. The grounds required to secure a divorce can be found at A.R.S. §25-903.

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AUTOMOBILE ACCIDENTS:

• If I'm involved in an auto accident will I collect for my pain and suffering?

  In order to be compensated for your pain and suffering two factors must be present. There must be an injury and loss and the other party must have some fault for the accident.

• How long do I have to make a claim for injuries sustained in an automobile accident?

  In Arizona, an injured party has two years from the date of the accident to file a law suit.

• How does medical pay (medpay) on my automobile insurance policy cover me in an accident?

  Medpay coverage contained in an automobile policy is optional in Arizona. If an injured party has medpay then his auto insurance company will pay the reasonable cost of medical bills up to the coverage amount.

• How soon after an auto accident should I contact my doctor; my lawyer; my insurance company?

  Immediately after the accident.

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BANKRUPTCY:

• Do I lose all of my property by the filing of bankruptcy?

  Under Federal Bankruptcy law, all property listed under various sections of A.R.S. §33-1101 through 1131 are exempt from sale by the trustee in bankruptcy unless the property is secured and payments are not made. All property on this list can be kept by the bankrupt.

• What do I do with automatic check payments sent directly to the bank, i.e., social security, pensions? How do I handle my mortgage payments if they are being remitted from my bank each month?

  For purely practicable purposes it is advisable that all automatic payments and deposits be stopped prior to the filing of bankruptcy.

• How long does it take before the bankruptcy is wiped off of my credit record?

  Credit bureaus usually keep a record of the filing of bankruptcy for ten years.

• How can I start to get established credit again?

  If you have secured debt keep making the payments on time. Get a credit card and charge to and pay it off, every month, on time. After two years from the date of the discharge of your bankruptcy start re-establishing small amounts of credit.

• What is the effective date of the bankruptcy?

  The date the bankruptcy is filed with the Bankruptcy Court Clerk.

• What should I do if the creditors continue to telephone me after I filed the Petition?

  If you are represented by an attorney refer them to the attorney. If you represent yourself tell the creditor that you filed bankruptcy and not to call again (this does not apply to secured creditors). The best advise is to tell the creditor to write. You should respond to the creditor stating what your position is on the debt.

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Don't see your question and answer, E-Mail me at M.H.Gottesman@azbar.org

Disclaimer: All answers are general and have been simplified and do not apply to all situations presented. Before you rely on these answers for your particular situation a lawyer should be personally consulted. These FAQ's are informational only and are not to be considered legal advice rendered by this site to any individual. The author of this site takes no responsibility for an individual who represents him/herself.

A.R.S. §25-312. Dissolution of marriage; findings necessary.

The court shall enter a decree of dissolution of marriage if it finds each of the following:

1. That one of the parties, at the time the action was commenced, was domiciled in this state, or was stationed in this state while a member of the armed services, and that in either case the domicile or military presence has been maintained for ninety days prior to filing the petition for dissolution of marriage.

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A.R.S. §25-332. Custody; best interests of child; joint custody; modification of decree; fees; children and family services.

A. The court shall determine custody, either originally or upon petition for modification, in accordance with the best interests of the child. The court shall consider all relevant factors, including:

1. The wishes of the child's parent or parents as to custody.

2. The wishes of the child as to the custodian.

3. The interaction and interrelationship of the child with the child's parent or parents, the child's siblings and any other person who may significantly affect the child's best interest.

4. The child's adjustment to home, school and community.

5. The mental and physical health of all individuals involved.

6. Which parent is more likely to allow the child frequent and meaningful continuing contact with the other parent.

7. If one parent, both parents or neither parent has provided primary care of the child.

8. The nature and extent of coercion or duress used by a parent in obtaining an agreement regarding custody.

B. The court shall consider evidence of domestic violence as being contrary to the best interests of the child. If the court finds that domestic violence has occurred, the court shall make arrangements for visitation that best protect the child and the abused spouse from further harm. The person who has committed an act of domestic violence has the burden of proving that visitation will not endanger the child or significantly impair the child's emotional development.

C. In awarding child custody, the court may order sole custody or joint custody. This section does not create a presumption in favor of one custody arrangement over another. The court in determining custody shall not prefer a parent as custodian because of that parent's sex.

D. The court may issue an order for joint custody of a child if both parents agree and submit a written parenting plan and the court finds such an order is in the best interests of the child. The court may order joint legal custody without ordering joint physical custody.

E. The court may issue an order for joint custody over the objection of one of the parents if the court makes specific written findings of why the order is in the child's best interests. In determining whether joint custody is in the child's best interests, the court shall consider the factors prescribed in subsection A of this section and all of the following:

1. The agreement or lack of an agreement by the parents regarding joint custody.

2. A parent's lack of agreement is unreasonable or is influenced by an issue not related to the best interests of the child.

3. The past, present and future abilities of the parents to cooperate in decision-making about the child to the extent required by the order of joint custody.

4. Whether the joint custody arrangement is logistically possible.

F. Joint custody shall not be awarded if the court makes a finding of the existence of significant domestic violence pursuant to section 13-3601 or if the court finds by a preponderance of the evidence that there has been a significant history of domestic violence. In determining the existence of domestic violence, the court shall consider, subject to the rules of evidence, all relevant factors, including, but not limited to, the following:

1. Findings from another court of competent jurisdiction.

2. Police reports.

3. Medical records.

4. Child protective services records.

5. Domestic violence shelter records.

6. School records.

7. Witness testimony.

G. Before an award is made granting joint custody, the parents shall submit a proposed parenting plan that includes at least the following:

1. Each parent's rights and responsibilities for the personal care of the child and for decisions in areas such as education, health care and religious training.

2. A schedule of the physical residence of the child, including holidays and school vacations.

3. A procedure by which proposed changes, disputes and alleged breaches may be mediated or resolved, which may include the use of conciliation services or private counseling.

4. A procedure for periodic review of the plan's terms by the parents.

5. A statement that the parties understand that joint custody does not necessarily mean equal parenting time.

H. If the parents are unable to agree on any element to be included in a parenting plan, the court shall determine that element. The court may determine other factors that are necessary to promote and protect the emotional and physical health of the child.

I. Unless otherwise provided by court order or law, both parents are entitled to have equal access to medical, school and other records of the child directly from the custodian of the records or from the other parent.

J. The court may specify one parent as the primary caretaker of the child and one home as the primary home of the child for the purposes of defining eligibility for public assistance. This finding does not diminish the rights of either parent and does not create a presumption for or against either parent in a proceeding for the modification of a custody order.

K. In a contested custody case, the court shall make specific findings on the record about all relevant factors and the reasons for which the decision is in the best interests of the child.

L. No motion to modify a custody decree may be made earlier than one year after its date, unless the court permits it to be made on the basis of affidavits that there is reason to believe the child's present environment may seriously endanger the child's physical, mental, moral or emotional health. At any time after a joint custody order is entered, a parent may petition the court for modification of the order on the basis of evidence that domestic violence pursuant to section 13-1201 or 13-1204, spousal abuse or child abuse occurred since the entry of the joint custody order. Six months after a joint custody order is entered, a parent may petition the court for modification of the order based on the failure of the other parent to comply with the provisions of the order. A motion or petition to modify a custody order shall meet the requirements of sections 25-337 and 25-339.

M. Attorney fees and costs shall be assessed against a party seeking modification if the court finds that the modification action is vexatious and constitutes harassment.

N. In a proceeding regarding sole custody or joint custody, either party may request attorney fees, costs and expert witness fees to enable the party with insufficient resources to obtain adequate legal representation and to prepare evidence for the hearing. If the court finds there is a financial disparity between the parties, the court may order payment of reasonable fees, expenses and costs to allow adequate preparation.

O. For any custody order entered under this section, the court shall determine an amount of child support in accordance with section 25-320 and guidelines established pursuant to that section. An award of joint custody does not diminish the responsibility of either parent to provide for the support of the child.

P. The court shall not request or order the services of the division of children and family services in the department of economic security unless it believes that a child may be the victim of child abuse and neglect as defined in section 8-546.

A.R.S. §25-211. Property acquired during marriage as community property; exceptions.

All property acquired by either husband or wife during the marriage, except that which is acquired by gift, devise or descent, is the community property of the husband and wife.

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A.R.S. §25-319. Maintenance; computation factors.

A. In a proceeding for dissolution of marriage or legal separation, or a proceeding for maintenance following dissolution of the marriage by a court which lacked personal jurisdiction over the absent spouse, the court may grant a maintenance order for either spouse for any of the following reasons if it finds that the spouse seeking maintenance:

1. Lacks sufficient property, including property apportioned to such spouse, to provide for his or her reasonable needs.

2. Is unable to support himself or herself through appropriate employment or is the custodian of a child whose age or condition is such that the custodian should not be required to seek employment outside the home or lacks earning ability in the labor market adequate to support himself or herself.

3. Contributed to the educational opportunities of the other spouse.

4. Had a marriage of long duration and is of an age which may preclude the possibility of gaining employment adequate to support himself or herself.

B. The maintenance order shall be in such amounts and for such periods of time as the court deems just, without regard to marital misconduct, and after considering all relevant factors, including:

1. The standard of living established during the marriage.

2. The duration of the marriage.

3. The age, employment history, earning ability and the physical and emotional condition of the spouse seeking maintenance.

4. The ability of the spouse from whom maintenance is sought to meet his or her needs while meeting those of the spouse seeking maintenance.

5. The comparative financial resources of the spouses, including their comparative earning abilities in the labor market.

6. The contribution of the spouse seeking maintenance to the earning ability of the other spouse.

7. The extent to which the spouse seeking maintenance has reduced his or her income or career opportunities for the benefit of the other spouse.

8. The ability of both parties after the dissolution to contribute to the future educational costs of their mutual children.

9. The financial resources of the party seeking maintenance, including marital property apportioned to such party, and such party's ability to meet his or her needs independently.

10. The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment and whether such education or training is readily available.

11. Excessive or abnormal expenditures, destruction, concealment or fraudulent disposition of community, joint tenancy and other property held in common.

C. The court shall maintain continuing jurisdiction over the issue of maintenance for the period of time maintenance is awarded.

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A.R.S. §25-903: Dissolution of a covenant marriage; grounds Notwithstanding any law to the contrary, if a husband and wife have entered into a covenant marriage pursuant to this chapter the court shall not enter a decree ofdissolution of marriage pursuant to chapter 3, article 2 of this title unless it finds any of the following:

1. The respondent spouse has committed adultery.

2. The respondent spouse has committed a felony and has been sentenced to death or imprisonment in any federal, state, county or municipal correctional facility.

3. The respondent spouse has abandoned the matrimonial domicile for at least one year before the petitioner filed for dissolution of marriage and refuses to return.

A party may file a petition based on this ground by alleging that the respondent spouse has left the matrimonial domicile and is expected to remain absent for the required period. If the respondent spouse has not abandoned the matrimonial domicile for the required period at the time of the filing of the petition, the action shall not be dismissed for failure to state sufficient grounds and the action shall be stayed for the period of time remaining to meet the grounds based on abandonment, except that the court may enter and enforce temporary orders pursuant to section 25-315 during the time that the action is pending.

4. The respondent spouse has physically or sexually abused the spouse seeking the dissolution of marriage, a child, a relative of either spouse permanently living in the matrimonial domicile or has committed domestic violence as defined in section 13-3601 or emotional abuse.

5. The spouses have been living separate and apart continuously without reconciliation for at least two years before the petitioner filed for dissolution of marriage.

A party may file a petition based on this ground by alleging that it is expected that the parties will be living separate and apart for the required period. If the parties have not been separated for the required period at the time of the filing of the petition, the action shall not be dismissed for failure to state sufficient grounds and the action shall be stayed for the period of time remaining to meet the grounds based on separation, except that the court may enter and enforce temporary orders pursuant to section 25-315 during the time that the action is pending.

6. The spouses have been living separate and apart continuously without reconciliation for at least one year from the date the decree of legal separation was entered.

7. The respondent spouse has habitually abused drugs or alcohol.

8. The husband and wife both agree to a dissolution of marriage.

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A.R.S. §33-1101 through 1131. Homestead defined; homestead exemptions; persons entitled to hold homesteads.

A. Any person the age of eighteen or over, married or single, who resides within the state may hold as a homestead exempt from attachment, execution and forced sale, not exceeding one hundred thousand dollars in value, any one of the following:

1. The person's equity interest in real property in one compact body upon which exists a dwelling house in which the person resides.

2. The person's equity interest in one apartment of a horizontal property regime in which the person resides.

3. A mobile home in which the person resides.

4. A mobile home in which the person resides plus the land upon which that mobile home is located.

B. Only one homestead exemption may be held by a married couple or a single person under the provisions of this section. The value as specified in this section refers to the equity of a single person or married couple. If a married couple lived together in a dwelling house, an apartment in a horizontal property regime, a mobile home or a mobile home plus land on which the mobile home is located and are then divorced, the total exemption allowed for that residence to either or both persons shall not exceed one hundred thousand dollars in value.

C. The homestead exemption, not exceeding the value provided for in subsection A of this section, automatically attaches to the person's equity interest in identifiable cash proceeds from the voluntary or involuntary sale of the property. The homestead exemption in identifiable cash proceeds continues for eighteen months after the date of the sale of the property or until the person establishes a new homestead with the proceeds, whichever period is shorter. Only one homestead exemption at a time may be held by a person under the provisions of this section.

A.R.S. §33-1123. Household furniture, furnishings and appliances.

The following household furniture, furnishings and appliances personally used by the debtor are exempt from process provided their aggregate fair market value does not exceed four thousand dollars:

1. One kitchen and one dining room table with four chairs each, plus one additional chair for each dependent of the debtor who resides in the household if the debtor and dependents exceed four in number.

2. One living room couch.

3. One living room chair, plus one additional chair for each dependent of the debtor who resides in the household.

4. Three living room coffee or end tables.

5. Three living room lamps.

6. One living room carpet or rug.

7. Two beds, plus one additional bed for each dependent of the debtor who resides in the household.

8. One bed-table, dresser and lamp for each bed allowed by paragraph 7.

9. Bedding for each bed allowed by this section.

10. Pictures, oil paintings and drawings, drawn or painted by debtor and family portraits in their necessary frames.

11. One television set or radio or stereo.

12. One radio alarm clock.

13. One stove.

14. One refrigerator.

15. One washing machine.

16. One clothes dryer.

17. One vacuum cleaner.

A.R.S. §33-1124. Food, fuel and provisions.

All food, fuel and provisions actually provided for the debtor's individual or family use for six months are exempt from process

A.R.S. §33-1125. Personal items.

The following property of a debtor used primarily for personal, family or household purposes shall be exempt from process:

1. All wearing apparel not in excess of a fair market value of five hundred dollars.

2. All musical instruments provided for the debtor's individual or family use not in excess of an aggregate fair market value of two hundred fifty dollars.

3. Domestic pets, horses, milk cows and poultry not in excess of an aggregate fair market value of five hundred dollars.

4. All engagement and wedding rings not in excess of an aggregate fair market value of one thousand dollars.

5. The library of a debtor, including books, manuals, published materials and personal documents not in excess of an aggregate fair market value of two hundred fifty dollars.

6. One watch not in excess of a fair market value of one hundred dollars.

7. One typewriter, one bicycle, one sewing machine, a family bible, a lot in any burial ground, one shotgun or one rifle or one pistol, not in excess of an aggregate fair market value of five hundred dollars.

8. One motor vehicle not in excess of a fair market value of one thousand five hundred dollars. If the debtor is maimed or crippled, the fair market value of the motor vehicle shall not exceed four thousand dollars.

9. Professionally prescribed prostheses for the debtor or a dependent of the debtor, including a wheelchair.

A.R.S. §33-1126. Money benefits or proceeds; exception.

A. The following property of a debtor shall be exempt from execution, attachment or sale on any process issued from any court:

1. All money received by or payable to a surviving spouse or child upon the life of a deceased spouse, parent or legal guardian, not exceeding twenty thousand dollars.

2. The earnings of the minor child of a debtor or the proceeds thereof by reason of any liability of such debtor not contracted for the special benefit of such minor child.

3. All monies received by or payable to a person entitled to receive child support or spousal maintenance pursuant to a court order.

4. All money, proceeds or benefits of any kind to be paid in a lump sum or to be rendered on a periodic or installment basis to the insured or any beneficiary under any policy of health, accident or disability insurance or any similar plan or program of benefits in use by any employer, except for premiums payable on such policy or debt of the insured secured by a pledge, and except for collection of any debt or obligation for which the insured or beneficiary has been paid under the plan or policy and except for payment of amounts ordered for support of a person from proceeds and benefits furnished in lieu of earnings which would have been subject to such order and subject to any exemption applicable to earnings so replaced.

5. All money arising from any claim for the destruction of, or damage to, exempt property and all proceeds or benefits of any kind arising from fire or other insurance upon any property exempt under this article.

6. The cash surrender value of life insurance policies where for a continuous unexpired period of two years such policies have been owned by a debtor and have named as beneficiary the debtor's surviving spouse, child, parent, brother or sister, or any other dependent family member, in the proportion that the policy names any such beneficiary, not to exceed twenty-five thousand dollars in cash surrender value, except that, subject to the statute of limitations, the amount of any premium paid in fraud of creditors, with interest thereon, shall inure to their benefit from such cash surrender value. In this subsection "dependent" means a family member who is dependent upon the insured debtor for not less than half support.

7. Any claim for damages recoverable by any person by reason of any levy upon or sale under execution of his exempt personal property or by reason of the wrongful taking or detention of such property by any person, and the judgment recovered for such damages.

8. A total of one hundred fifty dollars held in a single account in any one financial institution as defined by section 6-101. The property declared exempt by this paragraph is not exempt from normal service charges assessed against the account by the financial institution at which the account is carried.

B. Subsection A of this section does not apply to annuities, nor to cash surrender values increased by premium payments within two years in excess of the average annual premium paid during the previous three years.

C. Any money or other assets payable to a participant in or beneficiary of, or any interest of any participant or beneficiary in, a retirement plan which is qualified under section 401(a), 403(a), 403(b), 408 or 409 or a deferred compensation plan that is qualified under section 457 of the United States internal revenue code of 1986, as amended, shall be exempt from any and all claims of creditors of the beneficiary or participant. This subsection shall not apply to any of the following:

1. An alternate payee under a qualified domestic relations order, as defined in section 414(p) of the

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A.R.S. §33-1127. School equipment.

The library and philosophical and chemical or other apparatus belonging to a debtor and used for the instruction of youth in any university, college, seminary of learning, or school shall be exempt from execution, attachment or sale on any process issued from any court.

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A.R.S. §33-1128. Fire fighting equipment.

All fire engines, hooks and ladders, with the carts, trucks, carriages, hose, buckets, implements and apparatus appertaining thereto, and all furniture and uniforms of any fire company or department organized under any law of this state shall be exempt from execution, attachment or sale on any process issued from any court.

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A.R.S. §33-1129. Public property or property of a public character.

All court houses, jails, public offices, buildings, lots, grounds and personal property, the fixtures, furniture, books and papers and appurtenances belonging and pertaining to the jail and public offices belonging to any county or any city of this state and all cemeteries, public squares, parks and places, public buildings, town halls, markets, buildings for the use of fire departments and military organizations, and the lots and grounds thereto belonging and appertaining, owned or held by any town or city or dedicated by such town or city to health, ornament or public use, or for the use of any fire or military company organized under the laws of this state shall be exempt from execution, attachment or sale on any process issued from any court.

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A.R.S. §33-1130. Tools and equipment used in a commercial activity, trade, business or profession.

The following tools and equipment of a debtor used in a commercial activity, trade, business or profession shall be exempt from process:

1. The tools, equipment, instrument and books of a debtor or the spouse of a debtor primarily used in, and necessary to carry on, the commercial activity, trade, business or profession of the debtor or the debtor's spouse, not in excess of an aggregate fair market value of two thousand five hundred dollars. For the purpose of this paragraph, "toolsdo not include a motor vehicle primarily used by debtor for personalfamily or household purposes such as transportation to and from thes place of employment.

2. Farm machinery, utensils, implements of husbandry, feed, seed, grain and animals not in excess of an aggregate value of two thousand five hundred dollars belonging to a debtor whose primary income is derived from farming.

3. All arms, uniforms and accouterments required by law to be kept by a debtor.

A.R.S. §33-1131. Wages; salary; compensation.

A. For the purposes of this section, "disposable earnings" means that remaining portion of a debtor's wages, salary or compensation for his personal services, including bonuses and commissions, or otherwise, and includes payments pursuant to a pension or retirement program or deferred compensation plan, after deducting from such earnings those amounts required by law to be withheld.

B. Except as provided in subsection C, the maximum part of the disposable earnings of a debtor for any workweek which is subject to process may not exceed twenty-five per cent of disposable earnings for that week or the amount by which disposable earnings for that week exceed thirty times the minimum hourly wage prescribed by federal law in effect at the time the earnings are payable, whichever is less.

C. The exemptions provided in subsection B do not apply in the case of any order of any court for the support of any person. In such case, one-half of the disposable earnings of a debtor for any pay period is exempt from process.

D. The exemptions provided in this section do not apply in the case of any order of any court of bankruptcy under chapter XIII of the federal bankruptcy act or any debt due for any state or federal tax.

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