Divorce, Family Law and Estate Planning Faqs

How Long will my divorce take in Arizona?

The length of time it takes to get a divorce in Arizona can vary depending on several factors, such as whether the divorce is contested or uncontested, the complexity of the issues involved, and the court’s schedule.

If the divorce is uncontested, meaning that both parties agree on all the terms of the divorce, including property division, child custody, and support, then the process can be relatively quick. In Arizona, an uncontested divorce can be finalized as early as 60 days after filing.

On the other hand, if the divorce is contested, meaning that there are disputes between the parties regarding the terms of the divorce, it can take much longer. The court may need to hold hearings to resolve these disputes, which can prolong the process. In such cases, it may take several months or even years to finalize the divorce.

Overall, the length of time it takes to get a divorce in Arizona can vary widely depending on the specific circumstances of your case. It is best to consult with a qualified family law attorney in Arizona to get a better idea of how long your divorce may take based on the specific details of your case.

Can I move out of state during my divorce?

If you are going through a divorce in Arizona and want to move
out of state, you will need to obtain permission from the court before doing so. If you have children, moving out of state during the divorce can have a significant impact on custody and parenting time arrangements, which is why the
court will need to review and approve the proposed relocation.

Under Arizona law, if you are the custodial parent and want to move out of state with your children, you will need to provide written notice to the other parent at least 45 days before the planned move. The notice must include the date of the proposed move, the new address, and a statement of the reasons for the move.

If the other parent agrees to the relocation, you can file a stipulation with the court for approval. If the other parent objects to the relocation, the court will hold a hearing to determine whether the move is in the best interests of the child.

The court will consider several factors when deciding whether to approve the relocation,
including the reasons for the move, the relationship between the child and each parent, the impact on the child’s education and social life, and the ability of the non-moving parent to maintain a meaningful relationship with the child.

Overall, if you are going through a divorce in Arizona and want to move out of state, it’s essential to consult with an experienced family law attorney who can guide you
through the process and help you obtain the necessary court approval.

Who keeps the house in an Arizona Divorce?

In Arizona, during a divorce, the court will divide the property
and assets of the parties in a manner that is deemed fair and equitable.
Arizona follows the community property law, which means that any property or assets acquired during the marriage are generally considered to be jointly owned by both parties and may be divided equally.

When it comes to the family home, it will be treated as community property and will be subject to division by the court. The court will consider several factors, including the length of the marriage, each party’s financial situation, and any
children involved, when making a decision about the home.

If one spouse wants to keep the family home, they may need to buy out the other spouse’s share of the equity in the home or trade other assets of equal value. If both parties agree, they can also choose to sell the home and split the proceeds.

It’s important to note that in cases where the home was owned by one spouse before the marriage or was inherited by one spouse, it may be considered separate property and not subject to division by the court. However, if the non-owner spouse contributed to the mortgage payments or made improvements to the home during the marriage, they may be entitled to a portion of the home’s value.

Does it Matter who Files for Divorce First?

If you’ve been served with a summons and divorce petition, you may feel like you are at a disadvantage. The pleading you’re served with may seem scary, since the petition includes everything that your spouse is asking the court to order. However, that does not mean they will prevail on all of those issues. The petition is like the opening of the discussion about what you and your spouse are asking the court for. You have an opportunity to respond to the petition, and you are free to deny or disagree with any item.

There are some small differences in the process, depending on whether you file or your spouse files. Here’s what you can expect in each scenario.

Procedural Differences Depending on who Files

When you File for Divorce in Arizona

If you act first and file a divorce petition in Arizona, you will be responsible for drafting several documents. Typically, this means that being the person who initiates the divorce invests a bit more time and money in the divorce process than the non-filing spouse.

In the petition, you will tell the court what you are asking for in the divorce. It may seem like this ability to frame the issues in the case offers you an advantage. However, as you will see in the discussion of what happens if your spouse files first, that is not actually true.

You are also responsible for serving the divorce petition and a summons on your spouse. Your spouse then has twenty days to file a response. This time is extended to thirty days if your spouse lives out of state.

When Your Spouse Files for Divorce in Arizona

If your spouse is the one to file the petition, that means they are responsible for all of the original drafting of documents and for having the petition and summons served on you. In other words, they do the legwork in getting the divorce case started, and will spend a bit more money. The paperwork you receive will likely include a preliminary injunction, which limits your ability to do things like sell property while the divorce is pending. This is a routine order that restricts both spouses and would apply to both of you regardless of who filed the petition.

As noted above, you will have 20 days to respond–30 if you are out of state.

You are not required to respond to the petition, but it is generally a mistake not to do so. If you disagree with some or all of what your spouse put in the petition, the response is your opportunity to tell the court how you would like the issues in your divorce case to be resolved. If you don’t respond, the court will have only your spouse’s story and requests to work from. While a divorce court will still strive to be fair to both parties, the court will grant the divorce and enter an order regarding issues like property division and child support without your input if you do not respond.

Most of the Divorce Process is the Same No Matter Who Files

Regardless of who files, you and your spouse will have the same options after the petition and response stage of the process. If you come to an agreement regarding all of the issues in the divorce case, you can file a consent or stipulation. This is a document that lets the court know that you and your spouse have agreed on all of the issues and sets forth the agreement you have reached. In most cases, the court will grant a decree based on consent of both parties. Note, however, that the divorce court must review the agreement for compliance with Arizona state law. The judge isn’t likely to approve an agreement that is unfair to one party, or that is not in the best interests of any children of the divorcing couple.

If you and your spouse are unable to reach an agreement about the issues in your case, or even if there is one issue outstanding that you cannot resolve on your own, you will have to proceed to a contested hearing. A contested hearing requires adherence to court rules that most people are not familiar with, and may require expert witnesses and other sophisticated evidence. Regardless of whether you file the divorce petition or your spouse files, the best way to protect your interests is to have an experienced Arizona divorce lawyer by your side from the beginning.

The family law attorneys at Lincoln and Wenk have an in-depth understanding of both the substantive and procedural issues in an Arizona divorce. Just as important, we understand how stressful divorce can be, and how important it is that you have supportive, knowledgeable guidance as you navigate your divorce.

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How Much Will My Divorce Cost?

Cost is a concern for many divorce clients, regardless of their financial situations. Dividing a household and splitting up assets will already impact your finances, so it makes sense that you want to make good decisions about all of the costs associated with ending your marriage.

The total cost of an Arizona divorce includes many different types of expenses. The most common include filing fees, attorney fees, the cost of any experts required to establish your case, the cost of a mediator if you go that route, and any required programs (such as the Parent Information Program). Obviously, some of these expenses are more significant than others, but all contribute to the final cost.

Costs in an Arizona Divorce

Court Fees in Arizona Divorce Case

Court costs and program fees are relatively minor in comparison with the total cost of a divorce case. As of this writing, the filing fee for a petition for dissolution is $234. The non-filing spouse pays a slightly smaller fee of $159 to file a response. The cost of the Parent Information Program will not exceed $50 per person.

Attorney Fees

Divorce lawyers typically charge on an hourly basis, meaning that the total cost of your attorney fees depends in part on the attorney’s hourly rate and the amount of work necessary. If you and your spouse have reached an agreement on all or most of the issues in your divorce case, the total cost will typically be much lower. That is because your attorney will not have to prepare for and represent you at a contested hearing, and you may not need the assistance of an investigator or experts like appraisers.

The lowest cost will typically be when the couple has already agreed on all of the relevant issues when the divorce petition is filed, and the attorney simply has to ensure that the legal process is followed correctly and all of the issues have been addressed. At the other end of the spectrum, a full contested hearing on all issues takes a significant amount of time and preparation, and will be significantly more expensive. Most divorce cases fall somewhere in the middle. For example, the couple may have resolved some but not all of the issues in their divorce case before commencing the case. Their attorneys may need to negotiate the remaining issues, or the couple may choose to go to mediation to resolve the remaining issues.

However, there is another variable that many people don’t think about. This concerns how work is divided among attorneys and support staff at the law firm. Many very small firms or solo attorneys do all or most of their own work. These attorneys may charge a slightly lower hourly rate than attorneys at a larger, more established family law firm. But, if they are doing everything from writing up their own pleadings to contacting you to request documents and filling out subpoenas, you may see a lot of additional hours being billed at attorney rates.

A law firm with a well-trained and closely supervised support team can cut costs for a divorce client by leaving tasks that do not require an attorneys’ skills, knowledge, or professional judgment to trusted support staff.

Experts and Outside Assistance

Just as attorney fees tend to be significantly lower when the couple comes to an agreement on issues like property division and child custody, the cost of the divorce may be increased by the need for outside services. For example, if the parties agree on the value of the marital residence and other assets, they will save money versus having to hire an appraiser to establish the value. Sometimes, this cost is worthwhile, since it might significantly increase the value of the marital estate to the benefit of the person who is not keeping the house. Your divorce lawyer can advise you on when it would be beneficial for you to hire an expert for this type of matter, and when the cost is not warranted by the potential gain.

Similarly, if you have reason to believe that your spouse is hiding assets, you may want to hire a private investigator or a forensic accountant to uncover those assets. Again, this is an expense that will increase the cost of your divorce proceeding, but may be more than balanced out by your increased property settlement or award.

The Cost of an Arizona Divorce Varies Significantly

In short, most costs associated with an Arizona divorce case will vary significantly depending on the nature of your case. An uncontested divorce case with no need for outside experts will cost significantly less than a full contested divorce hearing with expert testimony. But, that doesn’t necessarily mean that you will benefit financially by taking the less expensive route. That depends on what you stand to gain or lose by investigating or litigating. That can be a difficult question to answer on your own, but your divorce lawyer can advise you on the approximate expense associated with each possible path and what you might stand to gain.

When you consult with an attorney at Lincoln & Wenk, we will always be upfront with you about the potential costs of any recommended action, and how they weigh against the potential benefits. To learn more about what you can expect in your specific divorce case, call us today.

Can I Move Out of the House During a Divorce?

Many people preparing for divorce are concerned that if they move out of the house, they might lose some rights. The old adage that “possession is nine tenths of the law” does not apply here. When one spouse moves out of the house while the divorce case is pending, it has no impact on their share of the marital home.

However, this is just the first of many questions that someone planning to move out of the house during a divorce – or someone whose spouse is moving out of the house during divorce – must consider. Failure to work out these additional issues can have a negative impact on your credit, your property rights, and even your children.

Matters to Agree on When You Move out of the Marital Residence

Financial Matters

When one spouse moves out of the house, most of the bills remain unchanged. The spouse who moves out has new expenses, but your existing mortgage payment, utility bills, property taxes, and other expenses related to managing the original household will continue.

Often, couples who are separating make assumptions about how those bills will be handled, and don’t always get on the same page. For example, the spouse moving out might assume that the spouse who remains in the house will take care of those bills, since they are the one living in the home and using the utilities. But, the spouse remaining in the house may assume that the bills will be paid as usual until there are court orders in effect. That might mean they’re expecting that the spouse who moved out will continue to make the full mortgage payment, or that the spouses split the payment. There’s no one right answer to these questions, but they are questions that can’t be ignored.

If one spouse moves out without resolving these issues, it can lead to unnecessary conflict as the divorce moves forward. It can also have other negative impacts–some quite serious. For example, if each spouse assumes the other is making the mortgage payment, you could end up with late fees and damage to your credit. In addition, if the problem goes on for more than a month or two, you could pile up past due balances that could be difficult to resolve while maintaining two households.

Of course, this is just one example of an issue that should be resolved before one spouse leaves the house. Others may include payment of credit card bills, loans, and other debts, possession of more vehicles, and how to handle co-parenting.

Matters Involving Children and Child Support

When one spouse moves out of the house, obviously the children will have to either remain in the house with the spouse who stays or move with the other spouse. Or, the divorcing couple may agree to split time with the children. The best answer will depend on a variety of factors, such as work schedules, whether the spouse who moves out leaves the school district, who cares for the children while both parents are working, and more.

Like property division and responsibility for debts, these issues will ultimately be resolved by the divorce court, either through ratification of an agreement between the parties or following a contested hearing. As a practical matter, the parties will need to come to a temporary resolution when one spouse moves out. Similarly, they may need to reach some sort of agreement regarding the contribution of the spouse the children are not living with toward their care pending cord orders. The court may enter temporary orders regarding these issues, but there is often a gap between physical separation and the entry of temporary order.

The Bottom Line on Moving Out of the House During Divorce

Moving out of the marital residence during your divorce case will not impact your property rights. Assuming the house is community property, it will remain so, and will be subject to division along with the rest of your marital property in the divorce case. However, like many other aspects of planning for and navigating a divorce, this step requires careful planning. This and similar issues illustrate the importance of working with an experienced Arizona divorce lawyer from the very beginning. Your attorney’s advice as you separate your households during or in preparation for your divorce can help you avoid missteps that could increase the conflict in your relationship, put stress on your children, and even impact your finances.

At Lincoln & Wenk, we know that divorce is a complex tangle of practical, emotional, and legal issues. When we represent you in your divorce case, we will provide the knowledgeable guidance you need to avoid pitfalls and protect your interests and those of your children.

Whether you have already separated from your spouse, are considering filing for divorce, or have been served with divorce papers, call us today to learn more about how we can help you through this process.

How Long is the Divorce Process in Arizona?

When you’re ending a marriage, you have a lot to deal with. In the midst of making decisions about the next steps in your life, processing the emotional aspects of divorce, helping children through the separation and more, you may be concerned about what will be expected from you during the divorce process and how long it will take.
The answers to both of those questions depend on the specifics of your divorce case. The biggest determining factor is whether you and your spouse can reach an agreement on all of the issues in your case, and how much time and effort it takes to get there.
If you and your spouse agree on everything before the divorce petition is filed, you could be legally divorced in as little as 60 days–the statutory minimum waiting period. If you have issues you can’t resolve by agreement, you’ll have to go to trial and let the judge decide those issues. That process can take a year or more. Most Arizona divorce cases fall somewhere in the middle.
At Lincoln & Wenk, we know that thorough, accurate information about what to expect can reduce the stress associated with divorce. When you meet with one of our experienced Arizona divorce lawyers, we’ll give you a more specific overview of what to expect in your case, and how the decisions you make will affect the timeline.

Steps In an Arizona Divorce Case

The first few steps and the time involved are the same whether your divorce case is contested or uncontested:

• Consult with an experienced Arizona divorce lawyer. Though this isn’t part of the formal legal process, it’s the starting point for most divorces. Seasoned family law attorneys like the ones at Lincoln & Wenk can help you assess your situation and make good decisions about how to proceed.
• File a petition for dissolution of marriage. Your attorney will draft the petition for your review, then file it and have a summons served on your spouse. How long it takes from your initial meeting to the filing of your petition will depend on a variety of factors, including whether there is a strategic reason to accelerate or delay filing.
• Wait for a response. If your spouse is in the state of Arizona, they will have 20 days from the date they are served to file a response to your petition. If the other spouse files a response earlier, you may move forward sooner.

What happens next and how long it takes depends on whether you and your spouse reach an agreement on all of the issues in your divorce case. If the divorce case is uncontested, the next steps are:

• If you and your spouse have agreed on all issues in the divorce case, or if you are able to reach an agreement on all issues with the help of your attorneys, you may proceed by consent. You must wait 60 days after the non-filing spouse was served to file your consent packet with the court. Depending on the specifics of your case, you may also have to complete a Parent Information Program or fulfill other requirements during this time.
• Receive your divorce decree (decree of dissolution). The court may take a few days to a few weeks to enter an order in your case. So, while 60 days is the minimum waiting period to finalize a divorce, the actual process from meeting with an attorney to receiving your decree will likely take more like 90 days–longer if it takes time to negotiate with your spouse.

If there are contested issues in your divorce case, there are additional steps and additional time required. That process generally goes like this:

• Making a motion for temporary orders, and either entering into an agreement or holding an abbreviated hearing on temporary orders regarding issues like who stays in the house, who has custody of the children, child support, and responsibility for debts during the divorce process.
• Gathering and exchange of information. If your divorce case is or may be contested, the parties exchange information through a process called discovery. The divorce court will typically order a timeline for discovery, which may vary depending on the extent and complexity of the information that must be gathered and exchanged. During this same phase, your attorney and/or your spouse’s attorney may hire experts to appraise property and offer other opinions on the value of your assets and–with regard to some assets–whether they should be classified as separate property or community property.
• Negotiation or mediation. If you and your spouse hope to work out an agreement, but didn’t have enough information to do so when you filed or simply haven’t been able to get on the same page, negotiations may continue while the case moves forward toward a possible contested hearing. This negotiation can take place between you and your spouse with the help of your divorce lawyers, between your attorneys, or with the help of a mediator. How long it goes on will depend on how many issues you have to resolve, how close to or far from agreement you are, and how invested you are in reaching an agreement.
• If a contested hearing is required, preparation for trial and presenting evidence to the divorce court. How long this takes will depend on how complicated the issues are, how much time it takes to gather the evidence and receive any necessary expert analysis, and how crowded the court docket is.
• Receive your divorce decree (decree of dissolution). The court may take a few days to a few weeks to enter an order in your case.

The contested process typically takes at least several months, but may extend to a year or more depending on the specifics of the case. To learn more about what you can expect in your divorce case, talk to an experienced family law attorney at Lincoln & Wenk right now.

How is Custody Determined?

In Arizona, custody means two different things: legal decision making authority and physical custody (parenting time). The standard for determining both types of custody is the same: the court must make the determination in the best interests of the child or children.

Ideally, the parents will come to an agreement about how to share decision making and parenting time. The parents have a much more in-depth understanding of their children, the relationships in their lives, any special issues they face and such than a judge will be able to absorb, even if witnesses are presented at trial. The parents also have the best understanding of their own schedules, which activities they engage in with their children, and other factors that will help create a plan that is best for the kids and is workable for both parents.

Reaching an agreement can also dial down the tension that sometimes exists when former spouses or partners co-parent. In part, that’s because the give and take of reaching an agreement is less likely to leave one party resentful about the way custody was decided and the terms they have to comply with. It’s also partly because an agreed custody plan built around what works for each parent helps avoid day-to-day frustrations with the arrangement.

Unfortunately, not every couple can reach an agreement on both legal decision making and parenting time. When they can’t, the court will make the decisions based on factors set forth in ARS §25-403.

Factors in Arizona Custody Cases

The factors the court uses to determine what is in the best interests of the child or children are the same for decision making authority and physical custody, though some will be more relevant to one than the other.

The court is instructed to consider all factors relevant to the child’s physical and emotional well-being, but the statute lists several issues to be considered. These include:

• Parent/child relationships, both past and present and the possibility for a future relationship
• Relationships between the child and other family members or other significant people in their lives
• The child’s adjustment to home, school and community
• The wishes of the child, if the child is of sufficient age and maturity
• The mental and physical health of everyone involved
• Which parent is more likely to encourage and facilitate a consistent and meaningful relationship with the other (unless the court determines the parent is acting in good faith to protect the
• child in a domestic violence or child abuse situation)
• Whether either parent has intentionally misled the court to cause delay, increase the cost ot the other party or influence the legal decision making determination or parenting time determination
• Whether there has been domestic violence or child abuse
• Whether and to what extent either parent may have used coercion or duress to get the other parent to enter into an agreement regarding parenting time or legal decision making
• Whether each parent has complied with domestic relations education requirements
• Whether one parent has been convicted of false reporting of child abuse or neglect.

When custody issues are contested, the court must make written findings regarding the relevant factors considered in determining custody.

Custody Options in Arizona

In nearly all cases, parenting time is split. However, the split may range from equal time with each parent to a schedule that looks more like traditional custody and visitation. How time is divided not only impacts the parenting time schedule and relationship between parent and child, but will also play a role in setting child support.

There are three possibilities for legal decision making. Courts will typically favor at least some involvement from both parents, where that is workable. The preferred arrangement is joint legal decision making, which operates similarly to when parents who are still together or who have no custody order in place make decisions. That is, any significant decisions are to be discussed and decided together. Day-to-day decisions are typically left to the parent who the child is staying with at the time.

Next, there’s another version of joint decision making, called “joint legal decision making with final say.” In this version, the parents are still expected to consult with each other regarding decisions about schools, medical care, religious practice, and other significant issues. However, if they are unable to agree, the person with final say gets to make the decision.

Finally, one parent may be granted sole decision making authority. This is not an option a court chooses lightly, since the goal is generally to keep both parents as involved as possible in the child’s life. However, courts will award sole decision making power in situations where it would be detrimental for the decision-making parent to have to consult with the other. Some examples include situations involving domestic abuse or drug addiction.

Talk to an Experienced Arizona Custody Lawyer

At Lincoln & Wenk, we know there are few things as important as the welfare of your children and your continuing relationship with them. We will work with you to reach an agreement if that is possible, whether through negotiations with your spouse’s attorney or through mediation. If that fails, we know how to assemble the evidence necessary to build the strongest possible case on your behalf.

How is Child Support Calculated?

Arizona, like other states, has child support guidelines that determine the presumed amount of child support to be awarded. The guidelines include a formula for determining the presumed amount of child support one parent will owe the other, and also describe when the court may deviate from the presumed award.

Arizona Uses the Income Shares Model

The income shares model for determining child support looks at the combined income of both parents to approximate the amount that would have been spent on the child if the couple had remained together. Then, each parent is assigned a proportionate share of that amount. In simple terms, this means that if each parent had equal income and equal time with the child, there would be no child support due. But, if one parent has more income than the other, they would pay support to the lower-earning parent.

Some higher earning parents don’t understand why they are expected to pay child support even if they have the child 50% of the time and are directly supporting them during that time. The short answer is that the purpose of child support is to protect the standard of living of the child–and not just 50% of the time.

This sounds relatively simple, but in practice it’s more complicated, because:

• Not all income counts in the child support calculation
• Additional costs such as medical insurance and child care are factored in
• Other court-ordered child support paid by either parent is factored in
• There is an adjustment for older children
• The amount of time the child spends with each parent is factored in
• There is a minimum amount of income each parent is entitled to keep for their own support
• The court can deviate from the guidelines if it finds that following the calculation would be unjust and the deviation is in the best interests of the child

Here’s how it works.

Using the Arizona Child Support Worksheet

Determining Child Support Income

The first step in the Arizona child support calculation is to enter the pre-tax income of each parent. Certain types of income are excluded, such as government benefits and child support received from another source.

In most cases, the amount of income to be counted is straightforward. But, there are some situations that complicate the calculation and may lead to disputes between the parents. For example:

• If one parent is self-employed, child support income is gross receipts minus reasonable and necessary costs of doing business.
• If one parent receives non-monetary benefits from employment or self-employment that reduce living expenses, that benefit may be counted as income.
• If a parent is voluntarily unemployed or underemployed, the court may attribute income of 40 times the minimum wage (or, in some cases, less) to that parent, even though they are not actually earning.
• Overtime income may or may not be considered.

If child support is contested, each party has the opportunity to submit their own child support worksheet.

Adjustments to Child Support Income

After determining child support income for each parent, that income is adjusted based on:

• Court-ordered spousal maintenance
• Court-ordered child support paid by one of the parties for a child from another relationship

The result is used to determine the basic child support obligation.

Basic Child Support Obligation

The first step in determining the basic child support obligation is to use a table to determine the total amount of funds that should be going to support the child or children, based on the combined adjusted income and the number of children. Then, the basic amount is adjusted based on:

• A 10% increase for any child over the age of 12
• Medical, dental and vision insurance paid by either parent
• Child care costs
• Extra educational expenses
• Extraordinary costs, such as for a special needs child

This new total is prorated between the parents based on the percentage of the total earnings attributed to them. But, that’s still not the final number.

Adjustment Based on Parenting Time

Another table determines the adjustment to the child support obligation based on the number of days each parent has care of the child or children. This is the last step, and shows the court what the preparing party believes is the appropriate amount of child support based on the worksheet. However, either party can argue for a deviation. And, the parties can agree on a different amount of child support–or, in some cases, even waive child support. This agreement is subject to court approval, and the court must consider the best interests of the child or children.

Deviation from Child Support Guidelines

The court may deviate from the presumed child support obligation for a variety of reasons, including:

• A significant disparity of income between the parents
• One parent paying a disproportionate share of direct expenses, even though the other has significant parenting time
• The presumptive amount of child support would make it difficult for the payor parent to absorb travel expenses associated with exercising parenting time
• The payment of child support would impede the parent’s ability to meet their own extraordinary healthcare costs
• The special needs of a child not of the divorcing couple require the parent to be at home

When the court deviates from the guidelines, written findings are required in support of the deviation.

You Don’t Have to Sort out Child Support Alone

If this process seems complicated, that’s because it can be. Fortunately, you don’t have to crunch the numbers or determine what to include on your own. At Lincoln & Wenk, we put our extensive experience to work not just to walk you through the calculation, but to identify any areas where you may want to contest the amount claimed, and any reasons there may be to request deviation from the presumed child support.

What is the Difference Between Legal Separation and Divorce?

Many married people who are no longer living together refer to themselves as “separated”. While that’s true in a practical sense, the physical separation that often occurs in anticipation of divorce is not a legal separation. In fact, legal separation and divorce are two very separate. – though similar – processes.

Legal Separation v. Divorce Process

The procedures for securing a divorce and for securing a legal separation are nearly identical. Both start with the filing of a petition and certain other documents. Both require that a summons and a petition be filed on the other spouse. Both involve a 60 day waiting period before a court order can be entered.

There are some substantive similarities too. For example, property will be divided in very much the same way that it is in a divorce case. Either the spouses can enter into an agreement about how debts and assets will be divided, or they can request a hearing and present evidence to the court. After a contested hearing, the court will enter an order dividing the couple’s property.

Similarly, if the couple has children together, child custody and child support issues must be agreed or decided by the court.

As you can see, legal separation is not a significantly simpler or less expensive process than divorce. When people choose legal separation over divorce, it is usually because maintaining their legally married status benefits them in some way.

Differences Between Legal Separation and Divorce

Procedurally, there is one significant difference between legal separation and divorce. While one party can petition for and secure a divorce over the objections of the other party, one person cannot insist on legal separation. If one spouse files a petition for a legal separation in Arizona, and the other spouse does not agree, the petition will be converted to a petition for dissolution (divorce).

The fundamental substantive difference between legal separation and divorce is that a couple who is separated is still legally married. This is beneficial to some couples for a few reasons:

• Because the legally separated couple is still legally married, one spouse can still be covered on the other’s medical insurance. This can be a very important distinction when one spouse has a chronic medical condition and would be unable to receive the necessary medical care after divorce due to loss of the spouses medical insurance.
• A couple who is still legally married may opt to file joint tax returns, despite being legally separated. This can mean a significant tax benefit in some situations, such as when one spouse earns significantly more than the other.

Some couples also choose legal separation for personal reasons, such as a religious aversion to divorce.

In addition to the possible benefits listed above, legal separation carries one significant restriction that does not apply to divorced couples. Since a legally separated couple is still legally married, neither spouse is free to remarry.

Is Legal Separation Permanent?

Once a couple is divorced, their marriage is permanently terminated. If they choose to reconcile and wish to be married, they will have to remarry. On the other hand, a legal separation can be reversed. If both spouses agree to reverse the legal separation, a motion to vacate can be filed with the court that ordered the legal separation. When the motion to vacate is granted, the couple returns to normal married status. However, the property division ordered in the legal separation case remains in effect. That means that unless the reconciling spouses take affirmative action to transmute the property each received in the legal separation into community property, it will remain the separate property of each spouse. Property acquired during the legal separation will also be treated as separate property.

A couple who is legally separated and is otherwise eligible to divorce in the state of Arizona can receive a streamlined divorce. This is because many issues that would normally be negotiated or argued in a divorce case have already been resolved by the property division in the legal separation. Unless one of these two actions is taken, an Arizona legal separation remains in effect as long as both parties are alive.

Make an Informed Decision About Legal Separation or Divorce

When you are considering ending your marriage, it is important to have complete and accurate information about how your actions will impact you, your children, and your finances. The attorneys at Lincoln & Wenk do understand both how complex divorce and legal separation issues can be, and how difficult it can be to make reasoned decisions about such an emotional area of life. When you come to Lincoln & Wenk for advice and representation in ending your marriage, you can count on both compassionate, supportive representation and the benefit of our extensive experience in this arena.

What is Legal Decision Making?

Most divorcing parents think about custody as a single issue. However, in Arizona, there are two separate issues to be decided: physical custody (technically called “parenting time”) and legal decision making. Though these are two separate legal decisions, the analysis is similar. Arizona law requires the court to make both decisions “in accordance with the best interests of the child.” Legal decision making is the authority to make non-emergency decisions about the child’s life.

It’s generally best for children to maintain a close and consistent relationship with each of their parents, so Arizona courts generally lean toward split parenting time and joint legal decision making.

How is Legal Decision Making Decided?

The best case scenario is that the parents reach an agreement regarding parenting time and legal decision making. If the parents are unable to reach a decision on their own, a mediator may be able to help them craft an arrangement that works for both parents and the children. Reaching an agreement can help demonstrate to the court that the parents are willing and able to work together for the sake of the child, and can allow the parents to enter this new phase of sharing care of their children in a different way with less tension or bitterness than a contested hearing might create.

If legal decision making is contested, the court will consider a variety of factors. Some of these factors are statutory, but the judge may consider any factors relevant to the welfare of the child or children.

Three Options for Legal Decision Making

Joint Legal Decision Making

Joint legal decision making means that each parent has an equal say in making decisions for the child. Though “legal decision making” sounds very narrow, the parent or parents with legal decision making power determine everything from how the child is educated to whether they are raised in a particular religion, what medical care is authorized and who provides that care, and more.

With joint legal decision making, the parents are expected to consult one another and make these decisions by consensus. This arrangement comes as close as possible to replicating the roles of the parents during the marriage, when each had the legal authority to make decisions for their child and the big decisions would typically be made together. However, joint legal decision making only works if the parents are willing and able to communicate and work together in the best interests of the child.

If that’s not possible, the court may award sole legal decision making to one parent.

Sole Legal Decision Making

Sole legal decision making is just what it sounds like: the court gives one parent the sole right to make decisions for the child. The parent with decision making power may choose to discuss issues impacting the child with the other parent, but is under no obligation to do so.

Sole decision making isn’t ordered lightly. Some examples of situations in which a court might award legal decision making authority to one parent include when one parent has abused the spouse or child or when one parent has an issue such as chronic alcohol abuse, addiction, or other condition that would make it detrimental to the child or unsafe for the child or other parent to require the parents to coordinate decision making.

If sole legal decision making authority is granted to one parent, the court generally can’t carve out or limit the scope of that decision-making. The only exception is when the parent without decision making power persuades the court that the child would be endangered by the other parent’s decision. However, the parent with decision-making power can’t take it upon themself to alter the court-ordered parenting time schedule.

Joint Legal Decision Making with Final Say

The middle ground between full joint legal decision making and one parent making all the decisions is joint legal decision making with one parent having the final say. While this may sound a lot like sole legal decision making, it differs in that the parent with final say is expected to consult with the other parent and attempt to reach a joint decision. But, there may be times when the parents can’t reach an agreement. In that case, the parent with the final say makes the decision.

This option can keep both parents involved in making decisions about the child’s life while avoiding the issues that may arise when parents have joint legal decision making but can’t agree on certain issues.

Arizona Custody Lawyers You Can Count On

Legal decision making and parenting time are two of the most crucial issues to be determined in your divorce case. These matters impact the well-being of your child and the strength and consistency of the child’s relationship with each parent. The attorneys at Lincoln & Wenk understand how important these decisions are, and how stressful the transition can be. We’re here to facilitate an agreement with your co-parent whenever possible, including through mediation. If you’re unable to reach an agreement or that’s not the best approach for you and your children, we’ll fight for your rights in court. To learn more about how we can help, call 480-680-9126 right now, or fill out the contact form on this site.

Is Arizona a Community Property State?

Arizona is a community property state for purposes of dividing property upon divorce. However, the concept of community property and how it is divided is more complicated than many people assume. Community property rules are sometimes short handed as “a 50/50 split,” but that’s a very simplified and not entirely accurate definition. Here’s what you need to know about how community property law works in an Arizona divorce case.

What is Community Property?

In Arizona, property acquired during the marriage is generally considered marital property. That includes property purchased during the marriage (no matter who made the purchase or how the property is titled) and both spouses’ income during the marriage. But, there are exceptions. And, property either spouse owned before the marriage generally remains separate property.

Separate Property Acquired During the Marriage

A few types of property are classified as separate property even if it is acquired during the marriage. These include:

• Property gifted to one spouse by someone other than the other spouse
• Property inherited by one spouse
• Funds received from the sale of separate property
• Property purchased with separate property

Imagine, for example, that one spouse owned an antique car before the marriage. As long as that spouse did not transfer title to the couple jointly (or to the other spouse) or use marital funds to maintain the car, it would remain the property of the spouse who brought it into the marriage. If the owner spouse sold the car and put the proceeds from the sale into a separate bank account in their name only, the funds would remain separate property. And, if that spouse later decided to purchase a boat solely with funds from the sale of the car, that boat would also be separate property. But, transactions aren’t always that simple and clean.

Transmutation of and Claims against Separate Property

In some circumstances, separate property can be transformed into marital property, or partially transformed into marital property. Under Arizona law, this is called “transmutation.” Some transformations are simple and obvious. For instance, if one spouse has $50,000 in a savings account before the marriage and then transfers that money into a joint savings account after the wedding, those funds are presumed to have been gifted from the spouse who brought the funds into the marriage to the community. The same is true if one spouse owns the home the couple moves into and deeds it to the couple as joint tenants. In both cases, those assets will typically be considered community property subject to division if the parties divorce.

In some cases, though, deciding whether and to what extent separate property has become marital property is complicated and may be disputed. For example, if one spouse comes into the marriage with a vacation home that still has a mortgage, and then marital funds are used across several years to pay the mortgage and to pay for property taxes and upkeep on the property, a more complicated situation arises. In that case, the community may have a claim against the property for reimbursement of those funds.

Note, though, that if the community has a claim for those funds expended from marital assets, the other spouse won’t receive the full amount of the reimbursement. Instead, the reimbursement will be divided just like any other community property. This type of situation often requires the use of experts to determine the value of the property and the extent of the reimbursement warranted.

How is Community Property Divided?

In Arizona, community property is divided “equitably.” While this typically means a 50/50 split–or very close to a 50/50 split–in the aggregate, it does not mean that each spouse receives half of each asset.

Here’s a simplified example:

Imagine that a couple has $2,000,000 in community assets. That includes a $400,000 house, $900,000 in a brokerage account, $200,000 in savings, and $250,000 in each spouse’s retirement account.

If one spouse wants to keep the house and the other agrees or the court awards the house to that spouse, they’ve received $500,000 of their share of the marital estate. Keeping their own retirement account will bring their share up to $750,000. That leaves $250,000, more or less, to be awarded to that spouse. That $250,000 may come from the brokerage account or a combination of the savings and brokerage accounts.

Alternatively, if neither spouse wants the house, or the parties can’t agree and the court decides to sell the house, the proceeds will go into the pot. Each party will likely be awarded their own retirement account (since they’re equal here), and then the brokerage account, savings account and proceeds from the house will be divided up to award each approximately $1,000,000 in assets.

Obviously, most couples have more and varied assets than are listed here, and retirement accounts are rarely identical, but this illustrates the different ways property can be divided.

The Bottom Line on Community Property in Arizona

Arizona is a community property state, but determining what is community property and how it should be divided is more nuanced than the popular perception. The best way to determine how your property is likely to be treated in an Arizona divorce and how you can protect your rights is to talk to an experienced Arizona divorce lawyer.

Call Lincoln & Wenk today for a free consultation.

What do I Look for When Hiring an Attorney?

Finding the right attorney can be overwhelming in any situation. That’s all the more true if you are looking for a lawyer to represent you in a family law matter, where emotions are running high and your day to day life and the future of your family will be impacted by the outcome.

The internet makes it easy to locate potential law firms, but often attorneys seem to be making very similar claims and it can be hard to sort out which lawyer or law firm is right for you.

Here’s what you’ll need to consider.

Choosing the Right Family Law Attorney

The right attorney for you will have extensive subject matter knowledge in the area of law you need help with. They will also have a solid grasp of the procedural issues associated with your type of case, and knowledge of the local court system. But, that’s only the beginning. It is also important that you are comfortable working with the attorney and have faith in their skills. And that you trust that they have your best interests at heart. That is true in any area of law, but especially so when you will be touching on very personal issues with the attorney and must be comfortable with full disclosure.

This checklist will help you find the right lawyer for you.

• Ensure that the attorney has a solid background in family law generally, and specifically in the type of matter you need help with. Many small law firms offer a wide variety of services. While their divorce page or adoption page might be very similar to the one you see on the website of a firm that focuses on family law, it is important to keep in mind that their focus is split. An attorney who is handling a wide variety of different types of cases won’t have the same level of relevant experience as someone who focuses in a single area, and may not have the same depth of knowledge.
• Make sure you know who you will be working with at the firm. While the general reputation of a law firm and reliable, kind, helpful staff is important, the most important thing to you is the attorney that you will be working with and who will be responsible for your case. However, the lawyer you’ll be working with is not always the lawyer you meet when you schedule a consultation with a law firm. Some firms have a particular attorney who handles the initial consultations on a particular day of the week. Others have an experienced attorney handle the consultations, but then hand off most of the work on the case to an associate. When you are scheduling a consultation with a law firm, make sure to ask whether you will be meeting with the attorney who would be representing you. Already scheduled a consultation and didn’t ask that question? Make sure to ask it at the consultation before you enter into a representation agreement.
• Use your initial consultation to assess your degree of confidence in the attorney’s knowledge and skills. But don’t stop there. It is also important that you believe the attorney is on your side and will fight for you, and that you are comfortable engaging with the attorney and sharing sensitive information. Pay attention to how the attorney responds when you ask questions, and whether they seem to understand your concerns and respond in a way that addresses the question you raised and is easy for you to understand.
• Learn more about the firm’s internal structure and who else will be working on your case. While you want your attorney to be very hands on with your case and guiding the process, a solo or a small firm attorney who does 100% of the work on your case can be much more expensive than a law firm that employs a system of well-trained legal secretaries and paralegals who are overseen by the attorney. You want your family law attorney making judgment calls, appearing in court, and negotiating with opposing counsel. You do not want to pay your attorney hourly for drafting a summons or sending you a notification of your court date.

Of course, you may have your own particular concerns that you want to factor into choosing the right Arizona family law attorney for you. This list is not comprehensive. However, it is intended to point out some key variables that many people overlook when choosing a family law firm. In fact, many people make unconscious assumptions, such as that the attorney they speak with during the consultation will be the one representing them.

At Lincoln and Wenk, family law is all we do. Our attorneys have extensive experience in their specific family law practice areas. Our team is also very aware of and sensitive to the challenges people face during divorce cases, child custody matters, and even estate planning. To learn more about how we can help with your family law matter, schedule a consultation today. We will always tell you exactly what you can expect from our law firm during your initial consultation.

How does Mediation work in Divorce?

Mediation is a form of alternative dispute resolution that is
often used in divorce cases to help parties reach an agreement on issues such as property division, child custody, and spousal support. Here’s how mediation works in a divorce:

• Selecting a mediator: The first step in mediation is to select a neutral third-party mediator who will facilitate the negotiations between the parties. The mediator should be trained in mediation techniques and experienced in handling divorce cases.
• Setting the ground rules: Before the mediation begins, the mediator will set the ground rules for the process. This may include guidelines for communication, confidentiality, and decision-making.
• Identifying the issues: The parties will then identify the issues that need to be resolved, such as property division, child custody, and spousal support.
• Negotiating a settlement: The mediator will work with the parties to negotiate a settlement that addresses each of the issues identified. The mediator will help the parties explore possible solutions, identify common ground, and overcome obstacles.
• Drafting an agreement: Once the parties reach a settlement, the mediator will draft an agreement that reflects the terms of the settlement. The parties will review and sign the agreement, and it will become legally binding.
• Filing the agreement with the court: The parties will then file the agreement with the court, and the court will enter a final judgment of divorce that incorporates the terms of the agreement.

Mediation can be a more cost-effective and efficient alternative to litigation, as it allows parties to reach an agreement without the time and expense of a trial. Additionally, mediation can be less adversarial and more collaborative than a traditional divorce, which can help preserve relationships and minimize conflict. However, it’s important to note that mediation may not be appropriate
in all cases, particularly those involving domestic violence or other safety concerns.

What Are the Benefits of Mediation??

You’ve probably heard that mediation can reduce both the cost of a divorce case and the conflict between parties. Resolving your issues through mediation can set you and your spouse up for better communication and cooperation after your divorce, which is especially important if you share children. But, many people are uncertain about how mediation works, or confuse it with other types of alternative dispute resolution.

What is Mediation?

Mediation is an informal process in which a trained, neutral third party helps people work together to resolve their legal disputes. In Arizona, the mediator must have completed at least 40 hours of training. Some mediators are also board certified specialists in family law or some other area of law.

One important thing to know is that the mediator is not a decision-maker. They won’t make any rulings like the judge in your divorce case would, and they won’t even make any recommendations to the court. A mediator’s sole responsibility is to facilitate an agreement between two parties. Neither party is required to accept any suggestions from the mediator, nor to enter into an agreement. If they are unable to reach an agreement, they are free to leave mediation and continue to a contested hearing on the issues in dispute.

The Mediation Process

The first mediation session is typically for information gathering and an explanation of the process, costs, and next steps. In divorce mediation, the mediator will review information such as the parties income, debts, and assets. Then, the mediator will begin to work with the parties to reach an agreement on each issue. The process doesn’t skip straight to questions like “Who gets the house?” Instead, it may begin with an attempt to reach agreements on threshold issues such as the value of the home and other assets. If the parties can’t agree on value or simply have insufficient information, they may agree to use one appraiser and accept the values that appraiser arrives at.

The mediator will work with both parties to resolve one issue at a time, which may include issues such as:

• Who receives which property
• Who is responsible for community debts
• How parenting time will be divided
• Whether and how much spousal maintenance will be paid

If the parties resolve their issues through mediation, the agreement will be drafted for both parties’ approval and then signed and submitted to the court.

Sometimes Mediation is a Partial Victory

Mediation isn’t an all-or-nothing proposition. Even if the parties aren’t able to reach an agreement on all of the issues in their divorce case, they may still resolve some issues. Even a partial agreement will help to reduce the cost of a contested hearing, and the amount of preparation required to fight the remaining issues in court. A partial agreement can also reduce the stress moving forward, as each party can move forward with confidence about the resolution of some areas and fewer open questions.

When is Mediation the Right Choice?

Mediation is very often beneficial for a divorcing couple. But, it isn’t for everyone. First (and most obviously), you don’t need a mediator if you and your spouse are able to resolve all of the issues in your divorce case on your own. A mediator can be very helpful when the divorcing couple has difficulty negotiating with one another in good faith or staying calm and focused during negotiations. But, not everyone needs that extra structure and support.

There may also be cases where mediation is likely futile, or may be counterproductive. One possible example is a case involving domestic abuse, where it is detrimental for the victim to get in a room with the abuser, and the power imbalance may lead to one spouse agreeing to things they aren’t really comfortable with.

At Lincoln & Wenk, we assess every divorce case with unresolved issues to determine whether mediation is the right answer. When mediation is a viable option, it can benefit the couple by:

• Reducing the amount of time it takes to resolve issues and finalize a divorce
• Reducing attorney fees and other costs of a contested hearing by streamlining the process
• Reducing tension and conflict between the parties, as each gets a voice in the negotiations and the power to agree or choose to go to a contested hearing

We also recognize that mediation isn’t right for every divorcing couple. We’ll be up front with you about what we see as the best path forward in your specific case. We also recognize that mediation sometimes fails. If your case is not appropriate for mediation or you and your spouse are unable to resolve issues through mediation, we are prepared to fight for you. Our family law litigators are highly experienced in all aspects of Arizona divorce and other family law disputes. We’ll put our skills and knowledge to work for you in the best way for you and your case.

What's the purpose of a Will?

A will is a legal document that outlines how a person’s property and assets should be distributed after their death. It serves several important purposes, including:

• Distributing assets: A will allows an individual to specify who will inherit their property and assets, such as real estate, bank accounts, and personal possessions, after their death. Without a will, the distribution of assets is determined by state law, which may not reflect the individual’s wishes.
• Naming guardians for minor children: A will also allows individuals with minor children to name a guardian for their children in the event of their death. This can provide peace of mind and ensure that the children are cared for according to the individual’s wishes.
• Appointing an executor: A will appoints an executor, who is responsible for carrying out the individual’s wishes as outlined in the will. The executor is responsible for managing the estate, paying debts and taxes, and distributing assets to the named beneficiaries.
• Avoiding disputes: A will can help prevent disputes between family members or other beneficiaries by clearly outlining the individual’s wishes and intentions. This can help reduce the likelihood of legal challenges and conflicts between family members.

Overall, a will is an important legal document that can help ensure that an individual’s property and assets are distributed according to their wishes after their death. It’s important to work with an experienced estate planning attorney to create a will that reflects your wishes and meets your unique needs.

Who Needs an Estate Plan?

Estate planning is the process of preparing for the management
and distribution of a person’s assets and property after their death or
incapacity. While many people may believe that estate planning is only for the wealthy or those with complex financial situations, the truth is that everyone can benefit from having an estate plan. Here are some examples of who needs an estate plan:

• Parents with minor children: Parents with minor children should have an estate plan in place that includes a will to name a guardian for their children in the event of their death. They may also want to consider establishing a trust to manage and distribute assets for the benefit of their children.
• Individuals with significant assets: Individuals with significant assets may want to establish a trust or other estate planning tools to minimize estate taxes and ensure that their assets are distributed according to their wishes.
• Business owners: Business owners should have an estate plan in place that addresses how their business will be managed and distributed after their death or incapacity.
• Individuals with specific wishes: Individuals with specific wishes regarding their medical care or end-of-life decisions should have an estate plan that includes a living will or advanced healthcare directive.
• Anyone over the age of 18: Even young adults who do not have significant assets or dependents can benefit from having an estate plan in place, as it can provide peace of mind and ensure that their wishes are carried out in the event of their death or incapacity.

Overall, estate planning is important for anyone who wants to ensure that their assets and property are managed and distributed according to their wishes after their death or incapacity. An experienced estate planning attorney can help you create a plan that meets your unique needs and provides peace of mind for you
and your loved ones.

How Can I Avoid Probate for my House?

In Arizona, your property will end up in probate if you pass away without having made legal arrangements for its transfer, or if that property is included in the estate that will be distributed in accordance with your will. Probate is the default means of passing property after your death–if you do nothing property passes through probate according to the rules of intestate succession. But, probate isn’t always the best way to transfer property.

Why Would I Want to Avoid Probate?

There are a few common reasons that people want to avoid the Arizona probate process. These include:

• The probate process is quite slow compared with other possible ways of passing your property, and it could take months or even a year or more before your beneficiary holds title to the house.
• The probate process can be expensive compared with other methods of passing property to your beneficiary.
• The probate process is a matter of public record, whereas other methods of transferring your home are more private.

The most important thing to keep in mind is that it is up to you to choose another means of transferring your home after your death, and to create the proper legal documents to ensure that happens. If you fail to do so, your home will pass through probate, regardless of what you had hoped for.

Options for Avoiding Probate for Your Home

Place Your Home in a Trust

When you place property in a trust, you transfer title to that trust. Since you are no longer the legal owner of the property, it doesn’t become part of your estate. That means that whether or not you have a will, the property in the trust will not pass through probate.

If you create a revocable trust, you are free to make changes to that trust for as long as you are alive and are not incapacitated. So, you needn’t worry about creating a trust and then changing your mind about who you want to receive your home when you are gone. And, if you decide that you want to use another method to pass your property, you can simply revoke the trust and reclaim ownership of your house.

Use a Beneficiary Deed

Arizona law allows owners of real property to list a beneficiary on the deed to the property. You have a wide variety of options about how to transfer the property to your beneficiary or beneficiaries. For example, you can transfer the property to two or more people as joint tenants or as tenants in common. You can list one person in a married couple as your beneficiary, or leave it to the community of husband and wife (with or without rights of survivorship). In simple terms, you can transfer property through a beneficiary deed in all of the same ways that you would be able to transfer that property during your lifetime.

A beneficiary deed is not valid unless and until it is recorded. Once a beneficiary deed is recorded, it remains in effect unless or until it is revoked. Writing a will subsequent to executing a beneficiary deed will not impact the deed. However, you are free to revoke the beneficiary deed at any time during your lifetime, as long as you are still legally competent. Just make sure that you follow the proper procedures to do so.

Holding the Property With Rights of Survivorship

If you want your spouse to receive your share of the house upon your death, and they want you to receive their share if they die first, you can hold the property as tenants in common with rights of survivorship. When you hold property this way, it will automatically pass to the surviving spouse upon the death of the other spouse. However, this approach only works to pass the property outside of probate when the first spouse passes away. After the first spouse’s death, the surviving spouse will be the sole owner of the property, and will need to make arrangements for the property to pass on their death.

Estate Planning Saves Time, Stress, and Money

Determining the best way to pass your house after your death is just one example of the many complex issues that can be resolved with a comprehensive estate plan. At Lincoln & Wenk, we understand the importance of providing for your family and ensuring that you have the right people making decisions for you if you are unable to do so yourself. We will work with you to build an estate plan that achieves your goals and provides security for your loved ones.

What are the Benefits of an Estate Plan?

Many people make the mistake of believing that they do not need an estate plan. Some believe that they do not have enough assets to make an estate plan worthwhile. Others assume that their affairs will be handled in the way that they would have preferred, anyway, because the people closest to them will inherit automatically or be granted decision-making authority if they are incapacitated. These can be dangerous assumptions.

Even for a person who does not have many assets, an estate plan offers several benefits:

• When you have an estate plan, you get to decide who will administer your estate and ensure that your property is protected for the benefit of your heirs and distributed as you wish.
• When you have an estate plan, you can choose the best way to pass your property to your beneficiaries, and how that property should be divided.
• When you have an estate plan, you get to leave specific instructions for your medical providers about big issues like when you do or do not want extraordinary life saving measures taken.
• When you have an estate plan, you get to choose a healthcare surrogate, so that you are in control of who makes decisions for you when you are unable to do so yourself.
• When you have an estate plan, you can grant power of attorney to the person you would choose to handle your financial and other affairs if you are incapacitated and cannot do so yourself.

The indirect benefits of an estate plan are also significant. For example, having your affairs in order and leaving clear instructions can reduce both the amount of work for your family, and the stress and potential conflict among your loved ones. Choosing the person who will administer your estate or handle your financial affairs if you are incapacitated will not only allow you to choose the best qualified and most trusted person for the job, but will also help avoid or minimize power struggles among your survivors.

What Happens When You Don’t Have an Estate Plan?

If you pass away or become incapacitated without an estate plan, decisions will be made according to Arizona law. Application of the law doesn’t always have the outcome you might expect or hope for.

What Happens if You Don’t Appoint a Medical Surrogate?

If you are incapacitated and do not have an appointed health care surrogate and no guardian has been appointed for you, Arizona law says that your spouse has decision making authority about your medical care. The only exception to this provision is if you and your spouse are legally separated. Note that legal separation is not the same thing as physical or practical separation. In other words, you and your spouse could have parted ways on bad terms months ago, but as long as you are still legally married, they will be the default decision maker for your medical care.

If there is no spouse, decision making falls to any adult children you may have. However, Arizona law does not create a hierarchy among your adult children. If there is more than one adult child, your medical providers are directed to follow the instructions of the majority of adult children they can reach. This leaves which children will be involved in the decision to chance, and may cause extreme tension between siblings who disagree about your treatment at a time when the entire family will already be under significant stress.

If you happen to be in a long term relationship with a trusted partner to whom you are not married, they will have no decision making power unless you take steps to grant it to them.

What Happens if You Don’t Have a General or Financial Power of Attorney?

If you become incapacitated unexpectedly, the world doesn’t stop. Your bills will still come due. Your property may still require maintenance. If the incapacity is long term, it may be necessary to sell your home or other assets.

Many people believe they don’t need a financial power of attorney if they are married, since Arizona is a community property state. However, there are a variety of circumstances that might still require a financial power of attorney. For example, if you own separate property that is maintained from an account that is also separate property, your spouse will not have access to use those funds for your mortgage payments or property taxes or maintenance. They also will not be authorized to engage with your separate creditors unless you have made such arrangements. If you own a business that is separate property, your spouse may be unable to pay bills or otherwise keep the business operating. And, of course, there is always the possibility that you and your spouse could be involved in an accident together and both be incapacitated.

If you’re not married, the situation is even more complicated, as there may be no one who has the right to access your accounts, pay your bills, and attend to other time-sensitive matters while you are incapacitated.

What Happens if You do Not Have a Will or Other Plan for Passing Your Property After Your Death?

If you die without a will, and have not made specific arrangements for your assets by placing them in a trust or holding them with rights of survivorship or with a listed beneficiary, they will be distributed according to Arizona’s law of intestate succession.

Intestate succession is a bit more complicated than you might expect. For example, what your surviving spouse receives through intestate succession differs significantly depending on whether you have any children who are not also children of your spouse. If you have no surviving spouse or descendants, the law weaves through a complicated network of relatives, all the way to descendants of your grandparents–potentially, to distant cousins you’ve never met. Creating a will ensures that you choose how your assets are distributed.

The Bottom Line on Arizona Estate Plans

Regardless of your age, economic status, or relationships, an estate plan can help you protect yourself, ensure that your property is passed to the people you would have chosen, and relieve the burden on your family members if you are incapacitated or pass away. At Lincoln & Wenk, we have worked to provide security and predictability to many Arizona families, and will do the same for you. Don’t delay creating an estate plan to protect you and yours. Contact us today to learn how we can help.

What Happens If I Do Not Have a Will in Arizona?

Fewer than half of U.S. adults surveyed say they have a Will, and that percentage has been fairly consistent across more than 30 years. While older Americans are more likely to have a Will than younger adults, a significant percentage are unprotected. According to Gallup, just 53% of those aged 50-64 and 75% of those 65 and older have Wills.

People delay executing a Last Will and Testament for many reasons, including supposing that they have plenty of time to get their affairs in order, believing they don’t have enough property to need a will, and assuming that their property will automatically go to the people they would have chosen. This last assumption is particularly dangerous, because it includes people who are consciously thinking about providing for their families and other loved ones to overlook writing a Will.

When someone dies without a valid Will in Arizona, any property they own is distributed according to the state’s intestate succession law. While the law does attempt to ensure that those closest to the deceased receive their fair share of the estate, every family is different. And, intestate distribution doesn’t always play out the way you might expect.

Intestate Succession in Arizona

Most married people assume that if they pass away without a Will, their spouse will receive everything. While that’s true in some cases, it is not always the case. Here’s how intestate succession works:

The Surviving Spouse Inherits – But Not Necessarily Everything

The surviving spouse always receives one-half of the deceased spouse’s estate, while the remaining one-half is distributed either to any surviving children from such spouse’s previous relationship (if any). Otherwise, the remaining one-half is also distributed to the surviving spouse. If the deceased and the surviving spouse have children together, those children do not receive anything directly.

This often means that intestate succession works differently depending on which spouse dies first. Imagine, for example, that two people are married and have no children together. One spouse has no prior children, but the other has two adult children. Neither has a Will.

If the spouse with no children passes away first, intestate, the other spouse will receive the full estate. But, if the spouse with children passes away first, without a Will, the surviving spouse will only be entitled to one-half of his or her separate property. The other half of community property and one-half of her separate property will be distributed to the children (or the children of any child who predeceased her). This could potentially have a disruptive impact on the surviving spouse, especially if the marriage was a long one and most of the deceased’s assets are community property.

Children May or May Not Inherit

As described above, children of the deceased and the surviving spouse do not inherit directly, even if they are adults. If the only children of the deceased are also children of the surviving spouse, the spouse gets everything.

However, children the deceased had with a surviving spouse (and their descendants, if the child is no longer living) will inherit 50% of separate property and the share of community property belonging to the deceased, if they are children of the deceased but not of the surviving spouse

Children of the deceased with no surviving spouse will receive 100% of the deceased’s estate (in equal shares) when there is no Will.

Other Relatives Who May Inherit

If there is no surviving spouse and there are no surviving children or descendants of children, the estate will pass to the deceased’s surviving parent or parents. If there are also no surviving parents, the estate will pass to the descendants of the deceased’s parents, which may include the deceased’s siblings, nieces and nephews of the deceased, and others descended from their parents.

If none of the above relatives survives the deceased, the estate may go to a surviving grandparent or, if none survives, the descendants of grandparents of the deceased.

Not All Property is Part of the Deceased’s Estate

As you can see, intestate succession may mean that your property passes to people you never intended to be beneficiaries. Further, the intestate rules can leave a surviving spouse in a very difficult position if you have children with someone else.

Intestate succession (or your Last Will and Testament) applies only to the property that is part of your estate. Depending on the type of property, how it is titled, and whether you have a named beneficiary, property may or may not become part of your estate. In other words, there are ways to ensure that some types of property pass to the person you choose outside of the estate. Similarly, a living trust may hold property that will pass to or be managed for the benefit of chosen beneficiaries after your passing.

However these are rarely full solutions. Most adults should have a valid Will, even if they have taken other steps to ensure that some property transfers according to their wishes.

Talk to An Arizona Estate Planning Lawyer

The best way to coordinate your will with any other methods of passing property you may want to use is to speak with an experienced Arizona estate planning attorney and take a look at how these tools can best work together to protect your loved ones when you’re gone. To learn more about how the attorneys at Lincoln & Wenk can help craft the best solution for you and your family, call 480-680-9126 or fill out the contact form on this site.

What are the Benefits of a Trust?

A living trust is a way to address two different sets of issues that would typically be part of your estate plan. First, a living trust provides a means of distributing your assets according to your instructions after you pass away. Second, when you place your property in trust, you will appoint a successor trustee who can manage your property and finances if you are unable to do so due to incapacity.

How Does a Trust Work?

Any trust involves three types of parties: the grantor (the person putting property into the trust), the trustee or trustees (those responsible for managing the trust for the benefit of the beneficiaries), and the beneficiaries (the people or entities who will receive the benefit of the property in the trust).

With a living trust, the grantors are both trustees and beneficiaries during their lifetime,which allows them to use and control the property in the trust just as they would have before the transfer. You are free to sell property in the trust for your own benefit, and to spend money as you choose. When you acquire new assets, you place them in the trust. For example, if you purchase a new car, you would title the vehicle in the name of the trust, not your personal name.

However, the trust is set up with one or more successor trustees, and one or more successor beneficiaries. When the grantor passes away, the successor trustee steps in to manage the trusts assets for the benefit of the successor beneficiaries. This can mean distributing the property directly to them, or paying it out according to the terms of the trust, annually or upon certain landmarks or for specific purposes or whatever the grantor instructed.

A Living Trust Helps You Avoid Probate

When someone dies in Arizona and has used a will as a means of passing their property to beneficiaries, that typically requires going through the Arizona probate process. The probate process can take several months to a year or more, and requires the administrator of the estate to serve notices, seek out creditors, provide an inventory of estate property to the court, and meet other requirements. The same is true if an Arizona resident dies without making any provision for how property will be passed.

In addition to being more time consuming and expensive and creating a significant gap between the death of the benefactor and the legal transfer of property to beneficiaries, probate is a legal process that–like most court proceedings–is a matter of public record. By using a living trust to pass property rather than a will (or leaving it to chance), you can save your beneficiaries time, administrative headaches, and money, while also protecting their privacy.

If you do choose to use a living trust to pass property after your death, your estate planning lawyer will likely suggest that you also have a simple will to address any property that may not have been transferred into the trust. The simplest way to handle this is usually with a “pourover will,” which dumps any property that remained in the name of the deceased and wasn’t otherwise disposed of into the trust.

A Living Trust Means Someone You Trust Can Manage Property When You Can’t

When you hear about living trusts, the main focus is typically on using the living trust to transfer property after your death. But, a living trust can protect your interests during your lifetime, too. When people don’t have an estate plan, big problems can arise if they become incapacitated. Imagine that you’re in a serious car accident and are incapacitated for months. You own a home with a mortgage, and you have plenty of money in your bank accounts to pay that mortgage during your period of incapacity. But, no one has the legal authority to move that money from the bank to your creditor.

If someone close to you recognizes the risks and knows how to seek authority to handle your affairs, a crisis may be averted. Otherwise, if you have made no arrangements, you could lose your house to foreclosure while you’re hospitalized simply because no one has the authority to initiate a transfer from your account.

Another way to prevent this sort of crisis is to execute a financial power of attorney, which lets the person you appoint conduct financial affairs on your behalf. But, if your property is in a living trust, that won’t be an issue, because everything in the trust will be under the authority of the successor trustee during your incapacity.

Is a Living Trust Right for You?

A living trust is a powerful tool that can give you greater control over how your assets are distributed after your death, can save your beneficiaries time and money, and even provides some protection if you become incapacitated. But, the attorneys at Lincoln & Wenk know that is no one right answer for everyone. We’ll talk to you about your options, including wills, living trusts, rights of survivorship and listed beneficiaries and help develop the best plan for you. And, we’ll give you the opportunity to add protections not covered by a will or a living trust, such as an advance healthcare directive and a healthcare power of attorney.

The sooner you put these protections in place for yourself and your family, the better.