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Family Law FAQs

 

May we file together?
No.  Only one party can initiate the process in the court’s eyes and that person is called the Petitioner.  The other party is the Respondent.

Will you represent both of us?
No.  An attorney is ethically prohibited from representing both parties.  However, an attorney should be willing to talk with the person, if that person is unrepresented, or their attorney, if represented, to try to reach a settlement.

Do I have to go to trial?
No.  The vast majority of cases are settled without a trial.  Most of the time, a negotiated agreement is reached.  There are many alternatives to trial to achieve a settlement, such as settlement conferences, mediation and alternative dispute resolution.  Generally, parties are much more likely to follow an agreement when they reach that agreement as opposed to a judge telling them what they must do.

Should I settle?
That depends.  Most cases can and do settle.  However, that there may still be situations which cannot be resolved by negotiation and which require the judge to make a decision on at least one issue. If one parent or spouse is acting very unreasonably or refuses to discuss a settlement, then reaching a compromise may not be possible.  The advantage to settling is the parties mutually have input on the terms and conditions and the attorneys’ fees are usually less.

How does the process work?
The case starts with one person filing a Petition.  The other person then must be served or formally receive the documents.  A specified is time allowed for a Response to be filed.  Then, the parties enter into an exchange of information phase, which can be very limited, or in certain circumstances, may take several months.  The type and amount of information exchanged, and the willingness of both parties to cooperate in the exchange process greatly affects the length of this process.  If the parties reach an agreement, they can file a stipulation (a written agreement between the parties in a paternity or child support case) or consent decree when the parties are ending their marriage.  If not, then they will have to appear at a trial and present evidence, and the court will enter a ruling.

Do I need to hire an attorney?
No.  Legally, any person can represent him or herself.  There are documents available for download and use from the Maricopa County Superior Court website.  However, a word of caution: family law involves children, money, houses, vehicles, tax issues, dividing businesses, dividing retirement assets and many other things.  These things are important, but not only that, can be very expensive to try to address issues after the dissolution.  Some things cannot be corrected after the fact.  Not being familiar with this area of the law, the applicable statutes and case law and the court process can be a serious detriment because this is what the court relies on and follows.  Oftentimes, I have a client retain who handled the initial dissolution or paternity action themselves.  After the fact, they discover the problems created, left unanswered, or the issues forgotten. Sometimes there are things that can be done and sometimes there is nothing that can be done to address these problems or deficiencies.  Knowledge is power and having someone represent you, who will help you through the process, who has experience and knows the process can help you focus on the things you need to focus on – such as the emotional healing or caring for yourself and your children.

Will I have to pay/receive spousal maintenance (alimony)?
The court has to decide if someone qualifies to receive and if so, how much and how long.  Because each spousal maintenance case is incredibly fact-specific, no one can accurately state how any one particular judge is going to rule.  It is thus most important to make sure you are as well prepared as possible to support your claim for spousal maintenance or to try to convince the court that the other side’s request is unreasonable and unrealistic.

Will I get to be the custodial parent and the other parent have visitation?
In making a custody and parenting time decision, the court must consider the best interests of the children.  Custody is the decision-making authority over big decisions in the children’s lives, involving things such as education, medical and religious issues.  Legal custody does not affect when the children see each parent.  This is called parenting time.  Issues that one parent has with the other’s ability to care for the children need to be raised and frankly discussed with an attorney to prepare for how to deal with this and what options are available to prove this to the court.

Is mediation mandatory and binding?
Many parenting or custody cases require an attempt at mediation before returning to court, if court orders are already in place.  A mediator should never make a decision for a party, but is there to help the parties try to reach an agreement.  If an agreement is reached in mediation, it can be made into a binding agreement, called a Rule 69 Agreement.

What does the preliminary injunction mean?
The preliminary injunction is a court order that goes into effect against the person filing the case immediately upon filing.  It becomes effective against the other person when that person is served or receives formal notification of the case.  It tells the parties what they can and cannot do with regard to their children, bank accounts, debts, properties, insurance, amongst other things.  It is important to carefully review the preliminary injunction and discuss any questions you have with your attorney.  Because it is a court order, the court expects both parties to follow it and has the ability to hold one party accountable if the order is violated.

 

 

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