Archive for September, 2012

Documentary Evidence

Sunday, September 16th, 2012

Preparing for a Divorce Trial Part 1; Using Documentary Evidence

Submitted by Attorney Karl  Scholes

Preparing for a divorce trial can be a daunting task. The difficulty comes in having so many issues to cover, and having so little time to cover them. In their rush to tell the judge what they think is fair in their divorce, a party (usually one who has opted to not hire an attorney) will often overlook an essential step; presenting the court with documentation to back-up their testimony.

Documentary evidence will often break the tie of a “he-said/she-said” trial. A police report, psychological evaluation, or tax return used in the right place, can turn a potential difficult decision into a no-brainer. But, how do you get the document entered into evidence?

First, to use a document as evidence at trial, you have to disclose it prior to trial. Parties (again, usually those who have opted to not hire an attorney, but sometimes even some attorneys) will bring a document they wish to use on the day of trial. It is important to note that if you bring the document to trial, and it is the first time the other side has learned you intend to bring it, chances are you are not going to get the document admitted as evidence. In order to be able to be assured use of the document you want to get in, you need to follow the disclosure rules, as codified in the Arizona Rules of Family Law Procedure.

Second, once you have disclosed the document, you need to get it to the judge’s judicial assistant to be marked prior to trial. Most judges in Maricopa County will require an exhibit to be marked at least five business days before trial. Again, if you don’t get it to the judicial assistant prior to trial, chances are you are not going to be able to use that exhibit at trial.

Third, once you have properly disclosed the document and had it marked, you still need to get it in to evidence. It is not enough to lay it on the judge’s desk and say, “Here is this document judge…” You need to tell the judge you are, “Moving to have the exhibit admitted as evidence.” Once you do this, the other side will have the chance to object. If there is no objection, or if the judge overrules the objection, your document is admitted into evidence.

Family court judges have a difficult job. They are faced with making important decisions based on sometimes contradictory testimony. Documentary evidence, used correctly, will often go far in resolving those contradictions in your favor.

 If you are in need of legal counsel and would like to speak with an experienced family law attorney, please call 800 899-2730 or visit our website at yourarizonadivorcelawyer.com. or www.davismiles.com

BANKRUPTCY ATTORNEY FEES

Monday, September 10th, 2012

TEMPE AND MESA ARIZONA DIVORCE AND FAMILY LAW LAWYER DISCUSSES ATTORNEY FEES AND BANKRUPTCY ISSUES

Submitted by Attorney Douglas C. Gardner

The “American Rule” regarding attorneys’ fees is that generally each party will pay his or her own attorneys fees and costs. There are, however, certain exceptions whereby the Court can order one party to pay all or some portion of the other party’s attorneys fees and costs.

In Family Law or Divorce cases in Arizona, A.R.S. § 25-324 governs when the Court can order one party to pay any portion of the other party’s fees. The Court must consider the reasonableness of the positions taken by the parties, and also the financial resources of each party. Generally, the greater the disparity in financial resources and the greater the unreasonableness of one party, the more likely the Court will order an award or attorneys fees.

A related issue that has arisen more often over the last few years with the terrible economy is when and whether these attorneys fees can be discharged in bankruptcy. As a general rule, money owed to a spouse or former spouse (such as for property settlement issues) can be discharged in a Chapter 13 Bankruptcy, though spousal support and child support are not dischargeable in any bankruptcy.

Attorneys fees fall in the grey area, and may be discharged in certain cases. The argument is that since the Court considers the financial resources of the parties, that it can be considered to be support in nature. The argument would be very strong if the primary issues litigated are child support and/or spousal support.

The Bankruptcy Code, 11 U.S.C. §523(a)(5) states that a bankruptcy discharge does not discharge support obligations. In re Catlow, 663 F.2d 960, 963 (9th Cir. 1981) recognizes that attorney’s fees awarded under Arizona law in a divorce action may be support obligations). In re Bradshaw, No. BR-05-24647-PHX-CGC, 2007 Bankr. LEXIS 2892 at *4 (D. Ariz. Aug. 24, 2007) provides a similar analysis. In re Jarski, 301 B.R. 342, 347 (D. Ariz. 2003) further discusses the issue. Finally, Magee v. Magee, 206 Ariz. 589, 592, 81 P.3d 1048, 1051 (App. 2004) states that, in Arizona, as a matter of public policy, an award of attorney’s fees is “derived from and justified by the duty of support”.

If you are involved in a divorce case involving attorneys fees, bankruptcy, or other simple or complex issues and want experienced legal representation, please call 800-899-2730 and ask to speak with Douglas C. Gardner, or visit our website at yourarizonadivorcelawyer.com.

Increasing Prevalence of Half-Time Schedules

Monday, September 3rd, 2012

By Attorney Kirk Smith

Mothers in the past were typically the parent of first choice when it came to receiving primary physical custody of  minor children. The orders of the court usually allotted more days each week to the mother, rather than the father.  Today most judges in Arizona take a more egalitarian view when it comes to allotting what amount of time each parent should spend with the minor child(ren). Due to this evolution in thinking, half-time schedules between parents are becoming much more prevalent in divorce and custody cases.

A half-time schedule is one where each parent is allowed close to, or exactly one half the amount of time each week or two week cycle, with their child(ren). Half-time schedules can be broken up in various ways depending on the availability and preferences of the parents. Some examples of half-time schedules are; 7-7, 2-2-3, and 3-3-5.

A 7-7 schedule would be one week with mom, then, one week with dad. A 2-2-3 schedule would be two days with dad, then two days with mom, and alternating weekends with mom or dad. So long as the time period in question, which generally would be a week or two week cycle, is split in a relatively even fashion it is considered a half-time schedule.

Good news for any non-custodial parent who is wanting more time with their child(ren) but was afraid that the courts would only give them every other weekend. This is not to say, that if historically speaking, one parent has spent more time with the child(ren) then the other, that the courts won’t look at this factor in making an appropriate decision. None the less this factor alone is not always outcome determinative and will be one of several factors the court can consider.

For a parent wanting to request a half-time schedule from the courts, that parent should keep in mind the age of minor child(ren) in devising which half-time schedule they would like to propose. Studies have shown that younger babies or toddlers need more frequent contact with both parents, whereas, older children can go longer periods without seeing either parent. Consequently, a one week on and one week off schedule would not be the best half-time schedule to propose for a very young child. Under those circumstances a better suggestion to the court might be to propose a 2-2-3 schedule to accommodate the minor child’s(ren) burgeoning emotional needs.

Nothing is ever guaranteed when going to court to resolve disputes between parties. Regardless, a non-custodial parent who has consistently “been there for their children” has a much better chance today, then in the past, of seeing their child(ren) at least one-half of the time.

If you are in need of legal counsel and would like to speak with an experienced family law attorney, please call 800 899-2730  or visit our website at yourarizonadivorcelawyer.com. or www.davismiles.com