By Nicole Siqueiros-Stoutner, Partner at Sheldon & Stoutner

I’m often asked the same or similar questions each time I meet with a potential client in an initial consult.  This post will address a few of these most commonly asked questions and hopefully save you some time and money.  I’m going to skip over the obvious questions such as “what is custody?” Instead, I will focus on the less apparent inquiries I receive during those first few meetings.

If I move out of the home I share with my spouse before or during the divorce, do I automatically lose my rights to the home? Is the home abandoned?

No, you will not “abandon” your home or give up your interest in a home if you decide to move out before or during your divorce.  There are things you can do to protect the personal property and furniture you leave behind, specifically you should take detailed pictures of all items before you leave.  As it relates to the mortgage or repairs for the home, you should attempt to address how these will be paid through agreement and/or consider the payment of a mortgage or other repairs in any temporary orders requests and/or in the final disposition of assets.

At what age can my child decide which parent he or she wants to live with?

The answer is when a child is eighteen years old.  There is no magic age before eighteen that will allow the Court to disregard the other “best interests” factors and decide parenting time based solely on a child’s wishes.  However, the Court may consider a child’s wishes if he or she is mature enough to articulate them (usually this is done in a child interview with a trained professional).  In that scenario and assuming a child evidences a desire to spend more time with one parent over the other, this desire alone will not be determinative for the Court. The Court will still have to review the other “best interests” factors before deciding the parenting time schedule.

I have sole legal custody or sole legal decision-making, so I can just move out of the State of Arizona with my child, can’t I?

No, you cannot.  The award of “sole legal decision-making” which is Arizona’s term for “sole legal custody” does not allow a parent to relocate with a child out of the state of Arizona without following the specific requirements and rules set forth in A.R.S. § 25-408.

If I contributed to my retirement before my marriage, does that mean my retirement (even that which I accrued during the marriage) is my sole and separate property and not divided in a divorce?

If you accrued retirement before your marriage, that amount will be your sole and separate portion plus any gains or losses on that amount.  It will not be divided as a result of the divorce.  However, at the time of a divorce and unless the parties agree otherwise, the Court will divide the community portion of your retirement assets or benefits.  This portion is defined as what you contributed plus gains or losses from the date of marriage to the date of service of the petition for divorce.

Shouldn’t my spouse be paying my attorneys’ fees? Why do I have to pay fees now?

As family law attorneys we cannot take cases on a contingency basis.  However, we can ask the Court to enter an order that the other party pay all or a part of your attorney fees and costs.   While we are negotiating or requesting the Court set a temporary orders hearing, our firm requires you pay an advanced fee to cover fees and costs given the various fees and costs we are required to pay on your behalf.

My significant other and I were never married.  But we lived together in Arizona for many years.  Is our relationship recognized as a “common law marriage” in Arizona?

No, Arizona does not generally recognize or allow for common law marriage.  A few U.S. states do recognize common law marriage.  If parties legally achieved a common law marriage in another state, they could be divorced in Arizona assuming certain jurisdictional requirements are met.

This Blog is made available by Sheldon & Stoutner for educational purposes only, as well as to give you general information and a general understanding of the law.  It is not to provide specific legal advice. By using this blog you understand that there is no attorney client relationship between you and Sheldon & Stoutner and/or the attorney author.  This blog should not be used as a substitute for competent legal advice from a licensed Arizona attorney.