Landlord Representation Services

We provide landlords with representation in disputes about their property.

Recently, the Arizona Supreme Court approved new court rules of procedure for eviction actions. The attorneys at Holland Law Group are familiar with and have litigated under these rules.

ARIZONA’S RESIDENTIAL LANDLORD TENANT ACT

(ARS §33-1301 et seq) is the governing body of law for all things landlord or tenant related. Specific provisions are made for nearly every common occurrence. The highlights of the legislation are as follows:

Domestic Violence

ARS §33-1318: A tenant who is a victim of domestic violence has certain rights that enable him or her to terminate the lease without penalty (creating a civil cause of action against the person who committed the domestic violence) and re-key the premises.

Security Deposits

ARS §33-1321: A landlord cannot charge more than 150% of the monthly rent. The landlord can apply a security deposit to rents due and/or damages, but must provide an accounting within 14 days of termination of the tenancy. The tenant has a cause of action for up to 3 times any amounts wrongfully withheld by the landlord.

Lease Agreements

ARS §33-1322: Lease agreements (other than for month-to-month tenancies) must be in writing and a copy must be provided to the tenant upon request within a reasonable time.

Maintenance of the Premises

ARS §33-1324 & 1341: The landlord must maintain a fit premises, including keeping all necessary services in safe and working condition. The maintenance obligations may be shifted by agreement to the tenant, but not for things that affect health and safety of the fit premises (structural integrity or compliance with building codes). The tenant is obligated to use all services provided in a reasonable manner and refrain from negligently or deliberately destroy any part of the premises or permit anyone else to do so.

Notification to Enter the Premises

ARS §33-1343: Except in cases of emergency or by , a landlord must give at least two days’ notice before entering the premises. Entry shall be made “only at reasonable times.”

Remedies for Failure to Maintain

ARS §33-1361, 1363, and 1364: If a landlord fails to maintain the premises within ten days after demand it made by a tenant, the tenant may either elect to terminate the lease without recourse or repair the premises (using a licensed contractor) for less than $300 and deduct the cost of the repairs from the next month’s rent upon providing proof of the amount spent. If a necessary essential service (i.e. running water, electricity, heat, air, etc.)is not provided by the landlord within a reasonable time after giving notice of the defect, the tenant may make the repairs, recovering damages from the landlord, procure a reasonable substitute for the service (get a hotel room) at the landlord’s expense up to the amount of the monthly rent.

Retaliatory Actions by Landlord

ARS §33-1367 and 1381: If a landlord shuts off utilities without the tenants’ permission, the tenant may terminate the lease without recourse and obtain a judgment against the landlord for 2 months rent or twice actual damages, whichever is greater.

Notices for Possible Eviction

ARS §33-1368: There are four types of notice relating to evictions:

Immediate termination of a rental agreement can be had if the tenant is engaged in unlawful activities or activities that jeopardize the health, safety and welfare of others. Notice is given at the same time as an eviction action being brought in the court.

A five-day notice is given when rent is not paid. The tenant has five days to pay the overdue rent or vacate. If the tenant pays the rent and late fees within the five days, the lease continues uninterrupted. If not, the eviction action is filed after the five days.

A ten-day notice is given where there is a material breach of the rental agreement (i.e., tenant is operating a business out of the home and it is prohibited by the lease). The landlord can designate the breach as curable or not and may commence an eviction action after the ten days if not cured or incurable. If the material breach involves an obligation a tenant agreed to maintain and it affects the health and safety of any person (including the tenant), the cure period is five days.

A 30-day notice can be given for any reason or no reason at all when the tenancy is month-to-month. The statute does not state that the notice must be given at the beginning or end of any particular month, only that it is to be given at least 30 days prior to the date of termination by the landlord.

Evictions/Forcible Detainer Actions

ARS §33-1377: Evictions are summary proceedings, meaning that there is not discovery, disclosures, trial by jury, counterclaims, cross-claims, or third-party complaints. A forcible detainer complaint is filed and a hearing is scheduled no less than three days or more than six days later. More often than not, the tenant does not bother showing up at the scheduled hearing, though the landlord or landlord’s counsel must still show. At the hearing, the judge may enter judgment for either side. The prevailing party is entitled to make a claim for attorney’s fees, costs, and any sustainable damages.

Writ of Resitution

ARS §12-1178: A Writ of Restitution is the court order mandating the constable to physically go and remove the tenant from the premises. It is obtainable by the landlord usually 5 days after a hearing is had by the court on the matter (which is done after giving notice, bringing suit, having the tenant served), though ARS §33-1377(E) allows for some discretion between 1 and 12 days after the hearing. Although the landlord is granted “immediate possession” to the premises, which merely means that the landlord doesn’t have to give 2 days notice to the tenant before entering on the property, the landlord cannot have the tenant removed until issuance of the Writ of Restitution. The landlord can have the utilities turned off the day following issuance of the Writ of Restitution.

Personal Property Left / Abandoned by a Tenant

A.R.S. §§ 33-1368, 1370, 1372: If a tenant is evicted and leaves personal property at the residence, the landlord is to inventory the property and hold the property for 21 days. The tenant is responsible for the cost of storage and removal of the personal property, but the landlord cannot hold the personal property hostage for back rent. A tenant does not have the right to enter and take until the costs of storage and removal are paid in full, except when it comes to clothing, tools and books of a trade, and identification/financial documents, which can be removed at any time. If no further effort is made to recover the personal property, it can be sold and the proceeds used to pay costs of storage, removal, back rent, and other costs. Any excess proceeds are to be mailed to the tenant at the tenant’s last-known address. Twelve months after the tenant makes no effort to obtain the excess proceeds (if there are any), revert to the landlord.

Arizona Step-Parent Adoptions

Stable loving families are always in the best interest of a child and we at Holland Law Group PLLC are pleased to provide adoption services to help step-parents formalize their relationship with a step-child through adoption.

The Process of Step-Parent Adoption

A step-parent adoption is not complicated and, in many cases, can be accomplished quickly. The only area of potential difficulty may be the first step: termination of parental rights of the non-participating/absentee birth parent.

It is usually the case that a step-parent who wishes to adopt a child has been filling a parental role for some time. The absent biological parent often has had no direct involvement or relationship with the child, and may or may not be paying child support.

The easiest way is if the absent parent will sign a document relinquishing his or her parental rights. Sometimes the request to relinquish parental rights is emotionally difficult and the biological parent may delay or need reassurance. In many cases, however, the biological parent is in agreement with the step-parent adoption and signs the relinquishment papers with minimal delay. A step-parent adoption means the biological parent will no longer be responsible for paying child support.

If the biological parent is uncooperative, or their whereabouts are unknown, a hearing will need to be held to terminate that parent’s rights. Remaining steps include paperwork and a court appearance, and investigation by a family services agency. It is not as complicated as an independent or agency adoption.

Frequently Asked Questions Regarding Family Law

How much does it cost to file a Divorce in the Arizona Family Court?

Filing fees vary for each county. Check with the Clerk of your local Superior Court for the latest information on court costs and filing fees.

How long will it take to finish my case?

Spouses wanting to divorce in Arizona must wait a minimum of 60 days from the date the Petition for Dissolution of Marriage is served upon the Respondent before the Court will grant the divorce. If your case is contested (i.e., a Response is filed by the opposing party), your case can take considerably longer.

Do I have to prove that I am entitled to a divorce?

Arizona is a “no fault” state, and neither spouse is required to prove that the other engaged in any marital misconduct to get a divorce. The only relevant consideration is whether the spouse seeking the divorce believes that there are “irreconcilable differences” between husband and wife.

How do I notify my spouse or my child’s parent that I have filed a divorce?

In order for a court of law to enter Orders requiring someone to do something (like pay child support), that court must have “jurisdiction” over the person. In order for the Arizona courts to obtain jurisdiction over a person, that person must be “served” with a summons and a complaint (or a summons and a petition, in the case of a divorce). A person may be served by a “process server” – a person licensed by the state to serve court documents – who brings the court papers to the opposing party and delivers them to the person directly. There are other means for serving people who cannot be found or who live out of state. If your process server cannot locate and serve the opposing party within the state of Arizona, you should speak to an attorney about other possible means of serving the summons and complaint.

What is the difference between legal and physical custody?

The term “legal custody” involves the right to make major decisions regarding the health, welfare and education of the child. The term “physical custody” involves the right to spend time with the child.

What is the difference between sole and joint legal custody?

The parent awarded sole legal custody makes all decisions regarding the health, education and welfare of the child without being required to consult with the other parent. When parents are awarded joint legal custody, they both participate in reaching decisions regarding the health, education and welfare of their child.

What is the difference between a custodial parent and a non-custodial parent?

The person with whom the child spends most of their time is considered the custodial parent, and is often called the “primary residential parent.” The non-custodial parent has access to the child, but usually according to a schedule agreed to by the parents or ordered by the Court.

What is the typical visitation schedule for a non-custodial parent?

Generally, depending on the age of the child and the facts of the particular case, the non-custodial parent will be allowed access to the child every other weekend, alternating holidays and a few weeks in the summer. The Superior Court of Maricopa County, Arizona uses a set of guidelines to help determine what visitation schedule the non-custodial parent will have. Click Here to see the Arizona Model Parenting Time Plans for Parent/Child Access (this may take a while to download – slower Internet connections should right-click and choose “save as,” then view the file after it has finished downloading.)

What factors will the Court consider when determining which parent will have custody of the child?

Generally, the court will consider all of the following factors in its effort to determine what custody arrangement is in the best interests of the child:

  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.
  7. If 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 participated in the mandatory parent information program class.
  10. Whether there has been domestic violence in the marriage or against the child.
  11. Drug or alcohol abuse by a parent.

Is it possible to modify custody and visitation orders?

The Arizona court always has the authority to modify orders relating to child custody if the court finds that a modification is in the best interests of the child. Before the court will consider changing the current custody arrangement, the parent seeking the change must show that there has been a substantial and continuing change of circumstance that somehow has had an adverse effect on the child. Typically, the court will find such a change of circumstance if one parent moves a considerable distance away, remarries begins abusing drugs/alcohol, causes severe problems with visitation, or the like.

How old does a child have to be before s/he can decide with which parent s/he wants to live?

In Arizona, the child’s wishes may be considered regardless of the age of the child. Only the judge, however, may make the final decision on where the child will live.

My child lives in Arizona but I live in another state. Which state will enter custody orders in my case?

Generally, the state where your child has lived for the last six months will have the ability to enter orders concerning custody of your child. This rule may not apply if child custody and/or visitation orders regarding your child have already been entered by a court in another state or country. This rule may also vary depending on where you live. Consult with an attorney if you are unsure of where your lawsuit should be litigated.

My child’s other parent has sole legal custody. Do I still have the right to obtain documents and information regarding my child’s education and health?

Yes. Arizona law states: “Unless otherwise provided by court order or law, on reasonable request both parents are entitled to have equal access to documents and other information concerning the child’s education and physical, mental, moral and emotional health including medical, school, police, court and other records directly from the custodian of the records or from the other parent.” A.R.S. § 25-403.06(A).

My child’s other parent is not paying child support. Do I still have to allow visitation?

Yes. Arizona law considers the issues of visitation and child support to be separate and distinct, so the custodial parent must continue to allow the non-custodial parent to visit with the child despite the non-custodial parent’s failure to pay child support. The reasoning is this: Child support orders are based upon the financial needs of the child and the ability of the child’s parents to meet those needs. Visitation orders are intended to safeguard the best interests of a child by ensuring that the child has a meaningful relationship with each parent. Because of this distinction, one parent’s failure to pay support will not excuse the other parent’s failure to allow visitation.

What is my “fair share?”

The law of Arizona recognizes that all assets acquired during marriage that were not obtained through gift, inheritance or intestacy are owned equally (one-half each) by the spouses. Similarly, most debts incurred by either spouse during marriage are the equal responsibility of both spouses. This approach to division of marital property is known as the law of “community property.” The Arizona courts, however, have the authority in most instances to divide marital property and debt in a way that is not equal. How the Arizona courts will ultimately divide your marital estate depends on the facts and circumstances of your particular case.

Am I entitled to a portion of my spouse’s retirement benefits?

Retirement benefits may be considered community property and divided between the parties at the time of the divorce. If the spouses were married throughout the entire time of employment at the job providing the retirement benefits, then the all of the retirement benefits are community property. Only a part of the retirement benefits may be community property if the spouses were not married during the entire time of employment. The court typically determines how much of the retirement benefit is community property by comparing the length of the marriage against the length of time the spouse was employed, translating this into a fraction, and applying it to the value of the retirement benefits. Once the community interest in retirement benefits is determined, each party is awarded their share of the benefits. A retirement plan can be community property even if the employee spouse is not yet vested. A separate order directing the administrator of the retirement plan to divide the retirement benefits (called a Qualified Domestic Relations Order or a Non-Qualified Domestic Relations Order) is usually submitted to the Court for approval at the time the parties are officially divorced. You should note that there are different types of retirement benefits (traditional pensions, 401(k)s, IRAs and the like), not all of which are valued or divided by the Court the same way. Consult an attorney if you are unsure how much of your spouse’s retirement benefits you may be entitled to receive.

How much will my child support be?

The Court will calculate child support in your case based upon a set of guidelines issued by the Arizona Supreme Court. Generally, the calculation of child support will depend on the total gross income of the parents, child care costs, the cost of your child’s medical/dental insurance, your child’s age, how much time the child spends with each parent, and possibly other extraordinary expenses incurred to care for or educate your child. Click here to see the Arizona Child Support Calculator.

Who will pay for day care?

If your child requires day care, the court usually will include the amount of the day care costs in its calculations. If day care costs are included in the calculations, then the parents share the cost in proportion to their gross incomes, and the parent who receives child support will be the parent who pays the day care provider.

What about medical and dental bills?

The cost of your child’s medical insurance premium is treated similarly to day care costs – i.e., the amount of the medical insurance premium is factored into the child support calculations, and each parent will pay a share of that cost in proportion to their incomes. The parent who carries the policy (whether through their employment or otherwise) will pay the medical insurance provider, regardless of whether they receive or pay child support. If the parent who pays child support is also the parent who carries the medical insurance coverage, they receive a credit against the amount of child support they pay for their proportionate share of the cost of the premium.

For medical bills not covered by insurance, each parent pays a share of the bill in proportion to their incomes. The uncovered medical bills are not factored into the child support calculations, however, and it is up to the parent who incurs the bill to seek payment from the other parent. Usually the court directs the parent who incurs the bill to send a copy to the other parent, and the other parent is expected to pay their share directly to the parent who sent the bill.

Does the amount of time I spend with my children make a difference in the calculations?

Yes. The more time a parent spends with their children, the less they pay. Usually the court decreases the amount of child support to be paid depending on how may days a month the parent sees the children on average.

My child’s other parent is not paying child support. Do I still have to allow visitation?

Yes. Arizona law considers the issues of visitation and child support to be separate and distinct, so the custodial parent must continue to allow the non-custodial parent to visit with the child despite the non-custodial parent’s failure to pay child support. The reasoning is this: Child support orders are intended to provide for the financial needs of the child, and visitation (parenting time) orders are intended to promote a meaningful relationship between the child and each parent. Because of this distinction, one parent’s failure to pay support will not excuse the other parent’s failure to allow visitation. Similarly, a parent’s failure to allow parenting time does not excuse the other parent from paying the child support order. A parent’s failure to abide by any court order, whether it is for child support or visitation, however, does not need to go unpunished. Speak to a qualified family law attorney to discuss ways to obtain and enforce court orders for child support.

Am I supposed to write a check each month for child support?

The court will normally enter an Order of Assignment that directs your employer to withhold a certain amount of money each month from your paycheck to cover the child support obligation. To determine how much will be withheld, multiply the monthly child support by twelve (to get the yearly total), then divide that yearly total by the number of pay periods you have in a year. For parents who are paid every other week, divide the yearly total by twenty six. For parents who are paid twice a month, divide the yearly total by twenty four. The court will usually withhold an additional fee for processing the wage assignment.

If the court does not enter an Order of Assignment, or if the Order of Assignment does not go into effect at the time you are ordered to pay child support, you should send your check directly to the Support Payment Clearinghouse. The Clearinghouse processes all child support payments and keeps records of payments. Sending your child support payment to the Clearinghouse will help avoid any confusion if a dispute arises over whether a parent has paid all of the child support ordered by the court.

In some cases, the parents agree or the court orders that one parent will pay child support directly to the other. This is not the best approach for the parent who is ordered to pay, since it puts the burden on the paying parent to keep records of the payments. Furthermore, if the records are not accepted by the court, the paying parent may not receive credit for paying child support (i.e., the court may consider it a gift to the other parent).

Where do I send the child support check?

If your employer is not withholding child support from your pay and you have not been ordered to pay the other parent directly, you should make your check payable to the Support Payment Clearinghouse. You are required to send an additional handling fee of $2.25 per month ($27.00 per year) with your payment.

Support Payment Clearinghouse
P.O. Box 52107
Phoenix, AZ 85072-2107

Can I get a record of the child support payments made?

If the child support payments were made through the Clearinghouse, you can get a record of them through the Clerk of the Court in the Superior Court where you case was filed. There is a fee for the official payment history records.

What factors are considered when determining if someone is entitled to receive spousal maintenance?

The court may consider many facts when deciding if spousal maintenance (formerly called alimony) is appropriate in a particular case. The criteria that the Arizona court considers are set forth in A.R.S. § 25-319(A), which states that the Court may award spousal maintenance for any of the following reasons if it finds that the spouse seeking maintenance:

  1. Lacks sufficient property, including property apportioned to the spouse, to provide for that spouse’s reasonable needs.
  2. Is unable to be self-sufficient through appropriate employment or is the custodian of a child whose age or condition is such that the custodian should not be required to seek employment outside the home or lacks earning ability in the labor market adequate to be self-sufficient.
  3. Contributed to the educational opportunities of the other spouse.
  4. Had a marriage of long duration and is of an age that may preclude the possibility of gaining employment adequate to be self-sufficient.

Consult with an attorney if you are unsure whether spousal support is appropriate in your case.

What factors are considered when determining the amount and duration of the spousal maintenance order?

The factors set forth in A.R.S. § 25-319(B) should be considered, which include:

  1. The standard of living established during the marriage.
  2. The duration of the marriage.
  3. The age, employment history, earning ability and physical and emotional condition of the spouse seeking maintenance.
  4. The ability of the spouse from whom maintenance is sought to meet that spouse’s needs while meeting those of the spouse seeking maintenance.
  5. The comparative financial resources of the spouses, including their comparative earning abilities in the labor market.
  6. The contribution of the spouse seeking maintenance to the earning ability of the other spouse.
  7. The extent to which the spouse seeking maintenance has reduced that spouse’s income or career opportunities for the benefit of the other spouse.
  8. The ability of both parties after the dissolution to contribute to the future educational costs of their mutual children.
  9. The financial resources of the party seeking maintenance, including marital property apportioned to that spouse, and that spouse’s ability to meet that spouse’s own needs independently.
  10. The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment and whether such education or training is readily available.
  11. Excessive or abnormal expenditures, destruction, concealment or fraudulent disposition of community, joint tenancy and other property held in common.
  12. The cost for the spouse who is seeking maintenance to obtain health insurance and the reduction in the cost of health insurance for the spouse from whom maintenance is sought if the spouse from whom maintenance is sought is able to convert family health insurance to employee health insurance after the marriage is dissolved.

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