What is a Presumption?
A presumption is a legal conclusion that can be refuted by contrary evidence. In other words, it is an assumption about what is the best outcome for the case. Divorcing spouses may agree to terms in their divorce that are different than Arizona’s presumptions, or specific circumstances may be present that make the presumptive orders inappropriate.
Arizona is a community property state, which means that marital assets and debts will be split equally between the spouses should they divorce. This applies to intangible assets like stock earnings and pensions, but gifts and inheritances remain the spouses’ separate property. If the spouses divorce and are unable to come to an agreement on how the assets and debts should be divided, the court will likely come to a ruling as close to 50/50 as possible. There are a few situations in which property won’t be divided evenly between the spouses.
The spouses can agree to establish some assets and debts as separate property through either a prenuptial or postnuptial agreement. A prenuptial agreement specifies how property division will occur and must be signed (and meet other requirements) before the wedding. A postnuptial agreement serves the same purpose but can be entered into well after the wedding.
The judge may also order that one spouse receives more property or debt in the divorce if one of the spouses has committed marital waste. This is purposeful or reckless spending in the period leading up to the divorce. Common examples include gambling, drugs and alcohol, shopping sprees, and spending on an extramarital affair. If one spouse is found to have committed marital waste, the judge can compensate the other spouse for their losses during property division.
A common misconception about child custody law is that courts prefer to place children primarily with their mothers. However, the presumption in Arizona is that spending as close to equal time with the parents is best for the child. All custody decisions are made keeping the child’s best interests in mind in Arizona. Arizona has set out multiple example parenting plans designed to fit all types of families with different work schedules and ages of children.
There are some circumstances in which dividing custody 50/50 is impossible. If one parent moves out of state, having the child spend summers and some holidays with the out-of-state parent may be more plausible than a typical parenting plan. Other parents may have a career that requires long periods away from home, such as members of our armed forces. Additionally, one parent may suffer an illness or injury that makes them incapable of full time child care. A parent will lose custody if they are incarcerated. Courts avoid giving custody to parents who struggle with addiction and similar issues. A true 50/50 parenting plan may also be difficult while the children are young.
Another common family law misconception is that the father must always pay support to the mother after a divorce. This is untrue- both parents are obligated to financially support their children. Child support will be calculated using the parents’ income and amount of parenting time.
Some spouses assume that one spouse can be excused from paying child support if they give up parenting time. This would interfere with the child’s right to financial support. There are especially severe methods of debt collection when a parent falls behind on child support.
There are a few ways in which a man is presumed to be the father of a child in Arizona. A man who is married to the mother when the child is born or in the 10 months leading up to childbirth is presumed to be the father. The father may also sign the birth certificate or a voluntary acknowledgment of paternity.
If none of these conditions are present, a paternity action must be brought to establish who is the child’s father. The mother may bring an action in order to obtain a child support order, or a father may bring the action for parenting time and other parental rights. Usually, the father will submit to DNA testing to prove paternity.
Contact Our Arizona Family Attorneys
If you have more questions about how Arizona family law presumptions may apply to your case, don’t hesitate to call our office for a free consultation with one of our family law attorneys. Our attorneys have years of experience handling cases similar to yours and will resolve your matter as efficiently as possible. The initial consultation is free, and we offer competitive rates and payment plans. Call for your free consultation today!