These definitions are provided by way of general information only, and should not be construed as legal advice. You should review the specific facts and issues of your case with an attorney to determine the appropriate course of action as it pertains to you.
A premarital agreement, (also called antenuptial agreement or prenuptial agreement) is a contract entered into by a man and a woman before they marry. This agreement will usually identify each party’s rights upon a dissolution of their marriage, to include what property each party will receive and the terms of spousal support, if any.
Arizona follows the Uniform Premarital Agreement Act (UPAA) which allows for a married couple to “opt out” of the community property laws of Arizona, as well as determine spousal maintenance provisions (subject to a statutory exception). An agreement can give the spouse more or less than state law allows. The agreement must be in writing, and signed by both parties. Further, it is essential that there is full disclosure of all assets and liabilities.
A post nuptial agreement is a contract entered into by a man and a woman after they marry. This agreement will usually identify each party’s rights upon a dissolution of their marriage, to include what property each party will receive and the terms of spousal suport, if any. In Arizona, while a Pre Marital Agreement has support by statute, a Post Nuptial Agreement is a creature of case law.
Due to the differences in enforcement of a Pre-Nuptial Agreement and a Post- Nuptial Agreement if you are contemplating any agreement with your to-be spouse you should consult counsel to discuss the benefits and negatives of each form of agreement prior to your marriage.
Child support in Arizona is based on the “Shared Income Model,” which takes into account the parents’ combined incomes and allocates the children’s expenses accordingly. The Arizona Supreme Court has developed specific guidelines on the appropriate child support that should be ordered by a court.
Alternatives to Dissolution of Marriage:
A legal separation is not a dissolution of marriage (divorce). While the process is for the most part the same, with a division of property and debt, determination of custody and support, and spousal maintenance, the spouses remain married. Neither can re-marry without obtaining a dissolution of the marriage.
A legal separation allows the husband and wife to live separately and formalize the arrangement by a court order or a written agreement. When there is a legal separation, the husband and wife no longer accumulate community or marital property. A legal separation generally recognizes the possibility that the couple might reunite.
An annulment is a determination by a court that a marriage was never valid. The most common ground for annulment is fraud or misrepresentation, however, other grounds may exist.
A divorce or dissolution of marriage is a determination by the court that there is no longer a valid marriage between husband and wife. The court will award custody, divide property, and order spousal and child support (as appropriate). Either party is free to re-marry after the entry of a Decree of Dissolution of Marriage.
Marital or community property: Arizona is a community property state. Community property is defined by statute as all property acquired during the marriage by either husband or wife, except for property that is acquired by gift, devise or descent, or acquired after the filing of a petition for dissolution of marriage, legal separation,or annulment, that actually results in a dissolution, legal separation, or annulment. A.R.S. §25-211.
The Court has the power to divide the community and joint property. Even if title to property is in the name of one spouse only, it does not mean that the property is not marital. The source of funds to purchase the property will be examined, and the burden of proving certain property acquired during the marriage is not community property is on the party claiming the property is not community property.
Separate property. Arizona recognizes that parties to a marriage may also have what is designated to be separate property. Separate property is property that is owned by a spouse before marriage, and property individually gifted or inherited by a spouse will remain that spouse’s separate property and not converted into community property (such as by a gift), will remain that spouse’s separate property. In the event of a dissolution or legal separation, all separate property is awarded to the owning spouse, however, it is important to keep the separate property separate from the community and joint assets during the marriage. However, there are exception to this rule that may require expert analysis, such as determining the community interest in a business owned by one spouse prior to marriage.
“Custody” is the right and duty to care for a child, and to make major decisions. Under Arizona statute the following definitions are applicable pursuant to A.R.S §25-402:
“Joint custody” which may mean joint legal custody, joint physical custody, or both. “Joint legal custody” which means that both parents share legal custody, the decision making power with respect to the child. Neither parent’s rights are superior.
“Joint physical custody” which means that the residential time for the child is substantially equal between both parent’s homes.
“Parenting time” is a parent’s right to have the child physically with them, and make the daily decisions regarding that child’s care during that time.
“Sole custody” means one parent has legal custody, and therefore the right to make the major decisions about the child.
When parents cannot agree on custody of their child, the court decides custody according to “the best interest of the child” under A.R.S §25-403. Determining the best interest of the child involves consideration of many factors.
Mediation is a process in which the parties to a dispute try to resolve their disagreements outside of court . A mediator is a neutral third party who is unable to force a settlement, but attempts to bring the parties together to an agreement. Different mediators have different styles. For example, some mediators work without the attorneys being present, requesting that the attorney’s meet with their clients to review the final paperwork. Other mediators request the presence of attorneys during the mediation process. Mediation is often required by the courts in the event there are custody and parenting time disputes.
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