Dustin T. Dudley, PLLC

Dustin T. Dudley, PLLC Phoenix divorce attorney Dustin T. Dudley strives to achieve the best possible outcome at the lowest possible price. Mr. Although Mr.

Dudley is certified to practice in the Arizona Supreme Court as well as the United States District Court for the District of Arizona. Unlike many lawyers and law firms who take on cases and assign them to an associate attorney, paralegal, or legal assistant, you will see Mr. Dudley even after the initial consultation, as he handles nearly all aspects of your case personally. According to the State

Bar of Arizona, one of the most common complaints voiced by clients of family lawyers relates to clients not being able to reach or communicate with their lawyer. Dudley prefers to be contacted at his office between the hours of 8:00 a.m. and 5:00 p.m., Monday through Friday, his personal cellular telephone number (602-300-6777) is provided to all clients. In the event he is unable to answer your call, he will either respond to your call the same evening, or within 24 hours. “A stitch in time saves nine.”

Dustin worked as a paralegal in a domestic relations/family law practice prior to attending law school. He worked as a commercial litigation/insurance defense attorney for the years immediately following law school. Then, after going through his own divorce in 2004, he again began studying family law and looking into shifting the focus of his practice. In 2006, he became a single father of the most delightful little girl. The paternity action and negotiation of a parenting plan that would provide the best possible environment for the co-parenting of his daughter allowed him to again see this aspect of the law through the eyes of a client, as opposed to a lawyer. Dustin’s personal life provides him with a very real perspective, allowing him to handle your family law matter with appropriate compassion.

Modification or Termination of Existing Spousal Maintenance (Alimony) in ArizonaIn order to modify or terminate an exist...
07/25/2022

Modification or Termination of Existing Spousal Maintenance (Alimony) in Arizona

In order to modify or terminate an existing, Court ordered obligation to pay spousal maintenance (Alimony), a person is required to file a Petition with the Court under A.R.S. 25-327. Even if a person loses their employment, the existing Court order will continue the spousal maintenance obligation until an appropriate Petition is filed with the Court and the Court approves the Petition. Even if the appropriate Petition is filed with and granted by the Court, the new order will not retroactively eliminate any accumulated arrearage that accumulated prior to the filing of the Petition to modify or terminate the existing Court order. In fact, the non-payment of spousal maintenance is actually classified as a class 1 misdemeanor in accordance with A.R.S. 25-511.01.

In brief, if circumstances change in a way that makes payment of Court ordered spousal maintenance impossible, don’t just stop paying; file a Petition to Modify or Terminate the existing Court order.

RETIREMENT ASSET IN DIVORCEi. Retirement AccountsTo the extent that retirement benefits (401(K) plans, 403 (b) plans, IR...
07/22/2022

RETIREMENT ASSET IN DIVORCE

i. Retirement Accounts

To the extent that retirement benefits (401(K) plans, 403 (b) plans, IRAs, annuities, pensions, and 457 deferred compensation plans, profit sharing plans, ESOP plans, and/or military retirement plans) were accumulated during the marriage, those resources are considered community property and, as such, are subject to equitable (fair, not necessarily, but usually equal) division by the divorce court.

Where such retirement benefits partially pre-date the parties’ marriage, it is necessary to present evidence to demonstrate the pre-marital balance in such accounts in order to have that portion designated as the sole and separate property of the spouse who made the premarital investment.

In cases where both spouses accrued retirement benefits during the marriage, each is entitled to half of the increase of each plan over the course of the marriage.

There are many ways to affect the actual division of such accounts including offsets against other community assets, division orders, Qualified Domestic Relations Orders (QDRO), or simply liquidating the account(s), paying penalties and interest, and dividing the proceeds.

In cases where significant retirement assets exist, it is always advisable to consult with an attorney whose practice is focused upon this area of law to insure you are making a decision that is in your financial best interest. Proper valuation of retirement assets and a determination of which method of division results in the best outcome for your individual situation requires advice from a specialist. You should also consult your tax professional to insure that you understand the tax implications of your choices.

If a QDRO is determined to be the best approach for your situation, neither party’s attorney drafts that document, but rather both parties must either agree on a neutral, third-party attorney whose practice is focused on this area of law or they must ask the Court to appoint one.

For a list of several attorneys whose practices focus on the division of retirement assets and who routinely accept referrals to draft Qualified Domestic Relations Orders, please see my “Useful Links” page.

OPTIONS FOR LEGAL DECISION-MAKING AUTHORITY AND PARENTING TIME IN DIVORCE CASESI. Child CustodyThe Arizona State Legisla...
07/21/2022

OPTIONS FOR LEGAL DECISION-MAKING AUTHORITY AND PARENTING TIME IN DIVORCE CASES

I. Child Custody

The Arizona State Legislature has repeatedly modified the legal definition of “Custody” in an apparent effort to further disassociate important decision making from day-to-day parenting. Despite repeated modifications of the statutory language, the present family law statutes, as well as those that went into effect on January 1, 2013, make it clear that the decision-making function of parenting is to be treated separate and distinct from day-to-day parenting time in final orders related to legal decision-making authority and parenting time.

Modifications to Title 25 of the Arizona Revised Statutes that occurred on January 1, 2013, utilized the term “legal decision-making” in place of “legal custody.” For this explanation, what was previously referred to as “legal custody” is set forth under “custody” and what was previously referred to as “physical custody” is set forth under “parenting time.” This is the easiest way to explain the present concepts that should remain somewhat consistent with the January 1, 2013 amendments to Title 25.

1. Custody (“Decision Making”) Defined
Legal “Custody” has nothing to do with which parent the child or children live on which days. But rather, it is a designation relating to who makes important decisions on behalf of the child. The types of decisions legal “custody” empowers a parent (or both parents) to make are those such as: which religion, which doctors or medical practitioners, and which school or type of educational facility.

2. Custody (“Decision Making”) Options
a. Joint
Joint custody has historically referred to joint legal custody or joint physical custody or both. Using the term joint custody to relate to both the decision making and the parenting time has led to significant confusion, which may be the motivation behind the amendments to Title 25 taking effect January 1, 2013. So, for the purpose of this explanation, “custody” will refer to only decision making.
Joint legal custody means that both parents share in the decision-making authority over major issues regarding the child.
b. Sole
Sole legal custody vests the decision-making authority with respect to major decisions in one of the parents.

3. How Decided
In all divorce proceedings with children, the parties should attempt to reach agreements regarding custody and parenting time. When a court reviews a case dealing with child custody, the first issue it will consider is whether or not it has proper jurisdiction -- the right and the power to interpret and apply the law to the child. Once this is determined the court will consider any agreement between the parties. Child custody and parenting time agreements should take into consideration:
1. Who will take care of the child;
2. How necessary decisions will be made;
3. How the child will spend time with each of the parties; and
4. How the child's medical, emotional, education, physical and social needs will be met

The court than reviews this agreement and determines if it is consistent with the best interest of the child. When agreements cannot be reached a hearing is required to resolve these issues.

If the parties are unable to reach an agreement as to which legal “custody” arrangement is in the best interest of their minor child, the court will consider anything it believes is relevant in addition to the factors set out in A.R.S. § 25-403 , which include the following:

1. The wishes of the child's parent or parents as to custody.
2. The wishes of the child as to the custodian.
3. The interaction and interrelationship of the child with the child's parent or parents, the child's siblings and any other person who may significantly affect the child's best interest.
4. The child's adjustment to home, school and community.
5. The mental and physical health of all individuals involved.
6. Which parent is more likely to allow the child frequent and meaningful continuing contact with the other parent. This paragraph does not apply if the court determines that a parent is acting in good faith to protect the child from witnessing an act of domestic violence or being a victim of domestic violence or child abuse.
7. Whether one parent, both parents or neither parent has provided primary care of the child.
8. The nature and extent of coercion or duress used by a parent in obtaining an agreement regarding custody.
9. Whether a parent has complied with chapter 3, article 5 of this title.
10. Whether either parent was convicted of an act of false reporting of child abuse or neglect under section 13-2907.02.
11. Whether there has been domestic violence or child abuse as defined in section 25-403.03 .
After considering all of the factors set forth above as well as anything else the court finds relevant, the court will order the custody arrangement that it believes to be in the child’s best interest.

Additionally, both parents are required to take the parental education program course. This course is intended to educate parties about the impacts that divorce, the restructuring of families and judicial involvement have on children. A.R.S. § 25-351 . Both parties are required to attend when they are involved in dissolution of marriage, legal separation, annulment or paternity proceeding. A.R.S. § 25-352 . There is a fee for enrollment in the program; however, the fee is not to exceed fifty dollars. A.R.S. § 25-355 .

II. Parenting Time
1. Options
When parties are able to reach agreements, the court will adopt those agreements as long as they appear to be in the best interest of the minor child. Such agreements can be almost anything one could imagine. If the parties want to share equal parenting time, depending upon the age of the child, common schedules include the following:
• 3/2-2/3 (Mom Mon & Tue; Dad Wed & Thr; Mom Fri, Sat & Sun; next week reverse)
• 5/2-2/5 (Mom Mon & Tue; Dad Wed & Thr; Weekends Alternated)
• 7/7 (Week 1 Mom; Week 2 Dad)

2. How Decided
When parties are not able to reach agreements, the court will consider all evidence it believes to be relevant and also those factors set forth in the “Custody” section above and come up with a schedule that the court believes to be in the best interest of the minor child.
The Court has a set of model parenting plans that it may consider as well. Examples of the Model Parenting Plans for Maricopa County may be reviewed online. A determination of the best parenting schedule for a given situation usually requires substantial consideration of each parent’s work schedule.

I. Division of Community Property and Debtsi. Community Property1. DefinedAll property acquired by husband and wife duri...
07/21/2022

I. Division of Community Property and Debts
i. Community Property
1. Defined
All property acquired by husband and wife during marriage is presumed to be community property unless it fits one of the descriptions set forth in the next tab for “Confirmation of Sole and Separate Property and Debts.” The acquisition of community property ceases once a spouse serves a petition for legal separation, annulment or dissolution of marriage as long as the petition eventually results in a decree (as opposed to being dismissed). A.R.S. § 25-211.
ii. Division of Property
The court is required by law to divide all marital property. Property acquired outside of the state by either spouse during marriage is considered community property if it would have been community property if acquired in Arizona. Marital property not divided by the decree is held by the parties as tenants in common, each with an undivided one half interest. In the decree, the court shall assign each spouse his or her separate property. The court is to divide property equitably but not necessarily in kind. The division is to be without regard to marital misconduct. However, the court may consider excessive and abnormal expenditures, destruction, concealment, or fraudulent disposition of marital property in making the division. A.R.S. § 25-318.
iii. Community Debts
1. Defined
With limited exceptions that will be explained below, nearly all debts incurred during a marriage are presumed to be community debts, for which both spouses are responsible. A.R.S. § 25-214(C). With limited exceptions, debts intended to benefit the marital community are considered community debts. Overcoming that presumption requires the party trying to assert that the debt is not community to present clear and convincing evidence that the debt in question is not community. Even if no benefit was actually received by the community, the Court may find the debt to be community.
There are also certain categories of debts that require both spouses’ signatures in order to bind the community, such as the purchase of real property and contracts of guaranty, indemnity, or surety. A.R.S. § 25-214(C).
iv. Division of Debts
The family law Court has broad discretion that it may properly exercise as it divides property and debts and may properly consider a number of factors including the parties’ anticipated future earnings as it attempts to equitably divide the parties’ debts. In some instances, the court may also choose not to divide certain debts, leaving the parties jointly liable. Even though the court orders one spouse to pay a community debt, both still remain liable to the creditor. The spouse who pays a debt may bring an action against the one who was ordered to pay for any amounts paid to the creditor. Wine v. Wine, 14 Ariz. App. 103, 480 P.2d 1020 (1971).

Community debts not allocated by a divorce decree remain the joint obligation of the parties. Community Guardian Bank v. Hamlin, 182 Ariz. 627, 898 P.2d 1005 (Ariz. App. 1995). However, a divorced spouse may bring a separate action for contribution from the other spouse for payment of a community debt which was not allotted in the property settlement or in the decree. Fisher v. Sommer, 160 Ariz. 530, 774 P.2d 834 (Ariz. App. 1997). Further, pursuant to A.R.S. § 25-318(P) , if a creditor secures payment from one party, but the other was ordered to pay the debt in the divorce, the harmed spouse may petition the court for an order transferring property to them and may also seek sanctions against the offending party. However those sanctions must be sought within two years after the debt should have been satisfied. A.R.S. § 25-318(P). Also, although a party may be held in contempt of court and face sanctions, the Arizona Constitution prohibits incarceration for failure to pay a community debt.

I. Attorney’s FeesAlthough we require payment in advance for most services, the court may order your spouse to reimburse...
07/19/2022

I. Attorney’s Fees
Although we require payment in advance for most services, the court may order your spouse to reimburse you for some or all of those fees depending upon the circumstances of your case. In some instances, we may even find that your case warrants a motion for temporary orders seeking an order from the court that your spouse actually advance some money toward your attorney’s fees right away as opposed to seeking reimbursement at the end of the case. The statutes and caselaw we have relied upon when successfully securing such orders are set forth below to provide you with additional information.

A.R.S. § 25-324 permits the family law court to order a party to pay all or contribute to the attorney fees incurred by the other party. The primary focus of the court when considering such an award is on the financial resources of both parties and the reasonableness of the positions each party has taken in the case. The court has broad discretion when deciding whether or not to award attorney’s fees to a party.

Under subsection (B), there are a number of situations in which the family law court “shall” award fees as opposed to the “may” award attorney’s fees discussed above. These situations are set forth in A.R.S. § 25-324(B). The purpose of the statute authorizing court to order that one party pay the fees and costs incurred by the other party in a domestic relations case after considering the parties’ relative financial resources is to provide a remedy for the party least able to pay. Graville v. Dodge (App. Div.1 2000) 197 Ariz. 591, 5 P.3d 925.

Attorney fees, under this section governing awards of such fees in marriage dissolution actions, are awarded to insure that the poorer party has the proper means to litigate the action, not to punish litigants. Garrett v. Garrett (App. Div.1 1983) 140 Ariz. 564, 683 P.2d 1166. The purpose of awarding the Mother suit costs and attorneys’ fees in divorce action is to insure that Mother have the means to litigate her action free of the Father's hold on the family finances. Olsztyn v. Olsztyn (App. Div.1 1973) 20 Ariz.App. 545, 514 P.2d 498.

Relative financial disparity between the parties is the benchmark for eligibility for attorney’s fees in a divorce action. Breitbart-Napp v. Napp (App. Div.1 2007) 216 Ariz. 74, 163 P.3d 1024. The allowance of attorney’s fees and costs is left to discretion of trial court. Drees v. Drees (1971) 16 Ariz.App. 22, 490 P.2d 851; Reich v. Reich (1970) 13 Ariz.App. 98, 474 P.2d 457; Davis v. Davis (1969) 9 Ariz.App. 49, 449 P.2d 66; Burkhardt v. Burkhardt (1973) 109 Ariz. 419, 510 P.2d 735; Atkinson v. Atkinson (1965) 2 Ariz.App. 1, 405 P.2d 919; Babnick v. Babnick (1963) 94 Ariz. 338, 385 P.2d 216.

The trial court has discretion to award attorney fees in divorce proceedings, and the Court of Appeals will not disturb that finding absent an abuse of discretion. Gutierrez v. Gutierrez (App. Div.1 1998) 193 Ariz. 343, 972 P.2d 676. It is an abuse of discretion to deny attorney fees to the spouse who has substantially fewer resources, unless those resources are clearly ample to pay the fees. In re Marriage of Robinson and Thiel (App. Div.1 2001) 201 Ariz. 328, 35 P.3d 89.

CAN LEGAL DECISION-MAKING AUTHORITY OR PLACEMENT OF A CHILD BE AWARDED TO A THIRD-PARTY??A.R.S. 25-409 (A) 1-4 are satis...
07/18/2022

CAN LEGAL DECISION-MAKING AUTHORITY OR PLACEMENT OF A CHILD BE AWARDED TO A THIRD-PARTY??

A.R.S. 25-409 (A) 1-4 are satisfied. The Court is required to summarily deny any such Petition unless the Court finds that the Petitioner’s initial pleading establishes that each of the conditions set forth in ARS 25-409 (A) are satisfied.

A.R.S. 25-409 (A)(2) requires that the Court shall summarily deny the Petition unless:
“It would be significantly detrimental to the child to remain or be placed in the care of either legal parent who wishes to keep or acquire legal decision making.”

Furthermore, A.R.S. 25-409 (B) creates a rebuttable presumption that awarding legal decision-making to a legal parent serves the child’s best interests. This presumption can only be rebutted by “clear and convincing evidence” that awarding legal decision-making authority to a legal parent is not consistent with the child’s best interests.

CAN A THIRD PARTY BE AWARDED VISITATION WITH A CHILD THAT IS NOT THEIR CHILD??

With respect to Third-Party visitation, A.R.S. 25-409 (C) sets out a list of four conditions and requires that at least one of them exist. Those conditions are as follows:

1. One of the legal parents is deceased or has been missing at least three months. For the purposes of this paragraph, a parent is considered to be missing if the parent's location has not been determined and the parent has been reported as missing to a law enforcement agency.

2. The child was born out of wedlock and the child's legal parents are not married to each other at the time the petition is filed.

3. For grandparent or great-grandparent visitation, the marriage of the parents of the child has been dissolved for at least three months.

4. For in loco parentis visitation, a proceeding for dissolution of marriage or for legal separation of the legal parents is pending at the time the petition is filed.

In order for the Court to award Petitioner third-party visitation rights, Petitioner would have to prove that at least one of the four conditions set forth above

04/10/2019

Reasons to hire a divorce attorney to assist you with your divorce.

08/18/2018

& just WON VEGAS TO RENO IN A BRAND NEW WILDCAT XX!!!!! 🎉🎉🎉🎉🎉

Spouse Controls The Money. Need Cash To Get Through Divorce?Both spouses have a legal right to equal possession of any ...
05/07/2018

Spouse Controls The Money. Need Cash To Get Through Divorce?

Both spouses have a legal right to equal possession of any and all community liquid resources. This is true regardless of which spouse has logistical control of a given account. In other words, if one spouse places money earned from work during the marriage into an account in their name only, we can file a Motion for Temporary Orders in a divorce case to gain access to half of those funds. And the Court is required to insure that both parties have equal access to those funds while the divorce is pending. In other words, we can gain access to those funds long before the divorce case is even over.

A.R.S. § 25-315 (H) defines “liquid assets” as: (1) Cash; (2) Traveler’s checks; (3) Cash in financial institutions; and (4) Lottery winnings. A.R.S. § 25-315 (B), indicates, in pertinent part, as follows: “The court shall provide for an order for equal possession of the liquid assets of the marital property that existed as of the date the petition for dissolution or legal separation or annulment was served, unless the court finds that there is good cause not to divide those assets.”

If you are contemplating or going through a divorce, I am here to help.

Dustin T. Dudley, Attorney At Law
(602) 300-6777

My Spouse And I Cannot Agree On How To Handle Things While Our Divorce Is Pending. What Can I Do?Not all family law mat...
05/02/2018

My Spouse And I Cannot Agree On How To Handle Things While Our Divorce Is Pending. What Can I Do?

Not all family law matters require temporary orders. In fact, most do not. However, if the parties cannot agree on important decisions or cannot cooperate to accomplish tasks that must be accomplished while the case is pending, then temporary orders may be necessary.

This can be accomplished by filing a Petition for Temporary Orders pursuant to A.R.S. § 25-315. Temporary orders may also be utilized to secure exclusive use and control of the marital residence pursuant to A.R.S. § 25-315 (C). Some of the other justifications for seeking temporary orders include an inability to reach agreements with your spouse regarding how the two of you will handle such issues as child custody, parenting time, child support, spousal maintenance, attorney’s fees, payment of community obligations, and access to community resources while the divorce case is pending.

However, the decision to seek temporary orders should be carefully considered, as temporary orders will significantly increase the overall cost of a divorce.

If, after careful consideration, temporary orders appear necessary and justifiable in your matter, I have the knowledge, experience, and expertise to assist you in securing any necessary temporary orders, as I have done repeatedly over the years for countless clients involving such issues as exclusive use of a marital residence, child custody, parenting time, child support, spousal maintenance, and attorney’s fees.

If, for any number of reasons, you are handling your divorce case without the assistance of an attorney (which I cannot over-emphasize, is not likely to result in as favorable of an outcome), the Maricopa County Superior Court self help website has temporary orders forms and instructions available for free (see link below).

Dustin T. Dudley, Esq.
(602) 300-6777

Address

1850 N. Central Avenue, Suite 1150
Phoenix, AZ
85004

Opening Hours

Monday 8am - 6pm
Tuesday 8am - 6pm
Wednesday 8am - 6pm
Thursday 8am - 6pm
Friday 8am - 6pm
Saturday 8am - 6pm

Telephone

+16023006777

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