When Do You Need a Divorce Attorney?
As the title implies, you do not automatically need a divorce attorney, even when you and your spouse do not agree to everything. Much of Arizona family law is uniformly applied and the results predictable with or without an attorney. So when contemplating divorce, it is important to be able to recognize and distinguish the contested issue(s) that might benefit from additional expertise and other issues that likely will be resolved the same way whether or not you hire an attorney. Many disputes also can be successfully mediated at a fraction of the cost in terms of time and money to litigate.
Property division is one of the more uniform issues in divorce, at least in Arizona. This is not to say that it is always simple or straightforward but that it often can be simpler than most other issues in divorce. Arizona is a community property state which means that most property acquired by either spouse during the marriage is considered to jointly owned by both spouses. We say most because there are certain exceptions such as inheritance or gift to one spouse during the marriage.
Under Arizona law, community property is equitably divided during divorce. Equitably does not always mean equally, but that is the general presumption or starting point. So in most cases, with or without attorneys, community property is divided equally between the spouses. Even when the spouses disagree about the value of property, the family court can appoint a neutral evaluator. Attorneys add very little value to ordinary property disputes.
Conversely, if your divorce involves a dispute over the ownership of property (e.g. one spouse executed a disclaimer deed or property was purchased prior to marriage but paid for with community funds during the marriage), the concealment of assets, allegations of community waste, or claims that separate property was untraceably commingled with community property, you may need a divorce attorney to protect your interests.
Child custody, or legal decision-making and parenting time as it is referred to in Arizona, is intermediately uniform. By this, we mean that the law is subject to more frequent and more significant variation in application. Arizona law favors joint legal decision-making and maximum parenting time with both parents when both parents are fit. However, this does not require equal parenting time and subjective definitions of “parental fitness” are the source of most child custody disputes.
Speaking very generally because there can be considerations unique to individual cases, family courts often prefer equal parenting time when both parents are equally fit. But the list of potential “fitness” concerns is nearly infinite. The most influential are histories of domestic violence or child abuse, drug or alcohol abuse, and unsanitary or unsafe living arrangements. When parties to a divorce do not agree to a parenting schedule, it can be beneficial to hire an attorney. Not only can a custody determination affect a parent’s ongoing relationship with his or her children, parenting time can significantly impact the calculation of child support.
Spousal maintenance, sometimes called alimony in other jurisdictions, is entirely discretionary. Under A.R.S. § 25-319(A), there are five eligibility criteria; but eligibility does not mandate an award. The family court still has the authority to deny an eligible spouse’s request. If the court does decide to award spousal maintenance, it maintains broad discretion to determine the amount and duration of the award. However, spousal maintenance is always modifiable unless the parties specifically agree to make it non-modifiable.
Sometimes a financially disadvantaged spouse absolutely depends on an award of spousal maintenance, including temporary spousal maintenance awarded at the beginning of the divorce, to pay basic living expenses during the litigation. Other times, spousal maintenance claims are asserted punitively or greedily to inflict financial harm or create leverage for the other issues in the case. Because of the totally subjective nature of spousal maintenance, litigants asserting or defending against this claim may need a divorce attorney to fully protect themselves.
Besides the three main categories of contested issues in divorce, there may be other reasons to hire an attorney. Some clients value the comfort and peace of mind to know that an experienced attorney is handling an important legal process. Another greatly underrated benefit of experienced counsel is expectation management. Though specific outcomes of a case are never certain, attorneys with adequate experience can help you understand what to expect. This can protect you against surprises in your divorce and make sure your objectives are reasonable to insulate you from being ordered to pay the other party’s attorney’s fees. During divorce, like other family law cases, litigants can request an award of attorney’s fees based on the parties’ relative financial resources and reasonableness. Unreasonable litigants are commonly ordered to pay the other party’s attorney’s fees, even when unaware that their positions are unreasonable. Arizona law holds self-represented litigants to the same standards as attorneys.