Phoenix Family Law Attorney Blog

How To Keep Fees Down While Being Prepared For Trial In Arizona Divorces

Except for the simplest of cases in which the parties have already reached an agreement before hiring me to prepare the necessary paperwork to finalize and formalize their case, every case has a delicate balance that occurs between trying to keep costs down while working toward an agreement, and being fully prepared to litigate the case at trial in the event that the case cannot be settled.

There is no doubt that contested divorce cases are expensive. This is made worse by the fact that divorce inevitably occurs when both parties are struggling with financial concerns. This is made much worse in today’s difficult economy in which home equity has vanished, credit card limits have been reduced, wages have been cut or promised raises frozen.

Good divorce lawyers will work to settle every case. Settlement of each divorce case is to the advantage of the client for multiple reasons. Financially, settlement of a case allows the case to end sooner and avoid the cost of trial. Emotionally, the parties are able to bring the case to finality and begin getting a full night’s sleep, and finally get rid of the constant knot in their abdomen and to let go of the anger and hurt that they have inevitably experienced. Finally, both parties are much more likely to comply with and follow the terms of an agreement that both parties voluntarily entered into, as opposed to a contested order that has been shoved down each parties’ throats at the conclusion of a contested trial.

However, it would be shortsighted of the client and the attorney to simply hope for resolution and eventual settlement of the case and fail to prepare for the eventuality of trial.

First, failing to prepare for trial may reduce the effectiveness at mediation and result in a less favorable outcome in mediation. Good settlement lawyers have effective presentations for mediation showing that the case is organized, exhibits are ready or nearly ready for trial, that the evidence including witnesses and exhibits are ready or will be ready for trial.  If the opposing party can see that you are prepared for trial, and ready and willing to go to trial if it becomes necessary, they will have an additional motivation to settle.

Secondly, being prepared for trial includes having all assets and debts identified, and having all contested custody or other matters identified. Having this same level of preparation for mediation ensures that the agreement discussed and reached includes a resolution of each of these issues and an agreement as to the assignment and distribution of all assets and debts.

Finally, a good family law divorce attorney understands that he or she has an affirmative duty to the Court to prepare for the eventuality of trial. Trials happen. Not every case will settle. Some cases will reach a partial settlement of some or most issues, but will have a few remaining issues that must nonetheless proceed to trial. The courts and judges are busy, and the court’s calendar is booked up months in advance. Judged get frustrated and even angry at attorneys who fail to have a case ready for the scheduled trial and ask the court for a continuance. Some judges will even sanction (require payment of a fine or other penalty) an attorney or party who requires a continuance for failure to prepare for trial. Judges understand that some times a continuance of trial is necessary, but require a better explanation than “I am not prepared, I hoped the case would settle.”

While the above paragraphs suggest that the case must be prepared for trial to go to mediation, a good divorce attorney can abbreviate, shortcut, and make some cost savings in preparing for mediation. The formalities of trial are much higher than those of a mediation. For mediation, the potential witnesses need not appear, but the attorneys and mediators can discuss what a potential client would testify to if called. All evidence and documents may not be needed for mediation, so long as the documents reflect an approximation or estimate of the facts needed to resolve the case. The biggest difference for me in preparing for mediation and for trial is that for a trial I need to have the case nearly memorized and have all information on the tip of my tongue and at the front of my mind. Whereas, for mediation, I need only know where to find the information. If your attorney cannot remember your child’s name or birthday at mediation, this should not be a problem. For trial, however, it is important that your attorney knows your child’s name, age, etc.

One last comment, even if you do not believe that your case is likely to settle, it is often beneficial to attend mediation. Even if your case does not settle completely, many times a partial agreement can be reached. A partial agreement can reduce the issues that need to be presented at trial, which reduces the attorneys time (and your cost) preparing for trial. I have also settled many cases in mediation in which my client and I were both pleasantly surprised that the case actually settled. Even when a case does not settle, participating in mediation is a very useful exercise. It requires the client and attorney to simulate preparation for trial. It allows the client and attorney to discuss the issues that need to be presented at trial. It allows the client and attorney to see what holes or missing information or documents are needed to prepare for trial. When I am in mediation, I keep several notepads simultaneously. One notepad is for items being suggested or agreed to during the mediation. I typically have a notepad on which I keep notes of additional documents or information that need to be obtained to be successful at trial, potential witnesses to include at trial, expert witnesses that may be needed, additional strategy to employ prior to trial, and other various thoughts and brainstormed concepts that come to mind when focusing on the trial for several hours of mediation.

As your cased progresses forward, you should understand that your attorney has an affirmative obligation to begin preparation for trial. Your attorney should, however, balance out depending upon the intensity and animosity of your case the need to prepare for trial and the importance of working to keep fees down. Always feel at ease approaching this topic with your attorney and asking what steps are being taken to be prepared for trial, and what steps are being taken to try and keep fees down at the same time.

If you need an attorney to move your pending case forward, or if you are contemplating filing for divorce, or if you are unhappy with your current attorney and the direction your case is headed, please feel free to call please call 800-899-2730 and ask to speak with Douglas C. Gardner, or visit our website at yourarizonadivorcelawyer.com.

Tempe Arizona Family Law Attorney Discusses IRS Rules Regarding Filing Jointly and Separately and Claiming Children For Deductions

As a divorce lawyer in Maricopa County, clients often face questions regarding their tax situation as it relates to their divorce. I want to address two common issues that arise.

First, if the parties are divorced any time during the year, whether it be on January 2 (Courts are closed on the first for New Years) or December 31, or anywhere in the middle, the parties cannot file “Married Filing Jointly” or “Married Filing Separately.” A good divorce attorney will discuss with his client this issue, and divorces that are scheduled to be concluded near the end of the calendar year can, in certain cases, be postponed with a request that the Court not sign the final decree until January 2 of the following year. This allows the parties, if an appropriate agreement can be reached, to file jointly one last year. While there is often a financial advantage to filing jointly, this is not always beneficial to the parties, as one party may get a higher refund filing on his or her own, or the acrimony in the divorce case may be such that it is difficult or impossible for the parties to work together with a tax prepared to finalize and file the case.

If the divorce is not yet final by the end of the tax year, the parties are still legally married. However, if the parties have not cohabitated a single day for the past six months, the parties can file as married or single, and if children are involved, the option of Head of Household is available.

Electing how to file during a divorce can be a confusing situation, and often it may be best to set up a three way conversation with your divorce attorney, your tax preparer, and yourself, to discuss your available options and the financial impact that each option will have for you. Make sure that your divorce attorney is at least familiar with these basic tax issues, and that your tax preparer has experience with divorce cases.

The second issue that often arises involves claiming the children as deductions. The I.R.S. is set up under federal law, and your divorce will be handled under state law. Accordingly, the issues can be confusing even to many tax preparers and attorneys. Federal law states that the rule is that the parent that has the child the majority of the time can claim the child as a tax deduction in any given tax year. However, federal tax law also recognizes that in divorce cases, the state court will often order that the parents alternate claiming of the children for taxes.

The IRS has a specific form, form 8332, which can be signed by the parents to facilitate the parent not having the child half or more of the time to nonetheless claim the child as a tax deduction in a given tax year. While the parent with the child for more than half of the time can still claim the child under federal law any time that parent wishes to do so, that parent may be in contempt of court in the state court divorce case and can be ordered to amend a tax return or make other financial reimbursement or indemnification for failing to abide by the Court’s orders.

If you are going through a divorce and need legal advice regarding tax implications in your divorce case or other financial issues such as attorneys fees, child support, spousal support, and a business buyout or other property equalization, please call 800-899-2730 and ask to speak with Douglas C. Gardner, or visit our website at yourarizonadivorcelawyer.com.

Attorney Douglas Gardner Shares Considerations Regarding Financial Issues Common in Arizona Divorce Cases and Compares the Tax Treatment, Modifiability, and Bankruptcy Treatment of Child Support, Spousal Support, and Property Equalization Payments

As a divorce lawyer in Arizona, practicing in Maricopa and Pinal County, and throughout the state of Arizona, I am often confronted with financial issues in complex cases involving the categorization of payments from one party to another. While often the party receiving the funds is primarily concerned with only the dollar amount he or she will receive, and the party paying the funds is primarily concerned with only the amount he or she will be paying each month, there are additional considerations that each side should seriously consider. Often the parties and experienced attorneys can carefully craft an agreement that is mutually beneficial to both parties by classifying how funds will be paid, as child support, spousal support, payment of attorneys’ fees, and as a property equalization payment or business buyout.

In considering the various forms of payment that can be made by one party to another in a divorce case, divorcing parties need to remember that $1 for spousal support is different than $1 of child support, which is different than $1 paid for attorneys fees, and these are all different than $1 for a property equalization payment or business buyout. The primary differences are tax issues, modifiability, the effect on other payments, and dischargeability in bankruptcy.

Child support is taxable to the paying party, and paid with post tax dollars. The receiving party will receive the child support tax free, and is not required to pay taxes on this as income. Accordingly, paying $1 of child support requires the paying party to earn $1.30 or some other amount in order to first pay 30% or the appropriate amount of taxes and have the $1 remaining. Child support can be modified at any time based upon an increase or decrease in either party’s income, a change in the cost of medical insurance, the emancipation of children, and for various other reasons. Child support cannot be discharged in bankruptcy if things really go south, but as indicated above, if things get too bad, the paying party can ask the Court to reduce what he or she owes moving forward. Care must be taken to modify child support quickly, as arrearages once built up cannot be discharged or modified and must be paid.

Spousal support provides a tax break to the paying party. When the paying party pays $1 in spousal support, this comes off the paying party’s income before determining the taxable income. The receiving party would then need to claim this as income and pay applicable income taxes. This is often beneficial to the parties, as the receiving party will generally pay at a lower tax rate than the paying party. Spousal support is generally modifiable, and terminates upon the death of either party or upon the receiving party remarrying. Similar to child support, the modification can be based upon a change in financial circumstances. By agreement or contract, the parties can agree to an amount for spousal support that would be non-modifiable, which prevents either party from asking the court to increase or decrease the amount or the duration. Even non-modifiable spousal support will terminate upon either party’s death or the receiving party’s remarriage (unless specifically agreed to be non-terminable also). Non-modifiable spousal support is a double edged sword, meaning it can protect the paying party from the receiving party asking to increase or extend the support, but may also prevent the paying party from reducing or pre-maturely ending the support if the paying party’s finances decline dramatically. Spousal support cannot be discharged in bankruptcy, making the risk of non-modifiable spousal support even more risky, as there is no court to which the paying party can seek to get out of the obligation even if he or she becomes disabled or has other serious financial difficulties. One other advantage of spousal support to the paying party is that it reduces the paying party’s income and increases the receiving party’s income in the child support calculations, which reduces the child support obligation.

A property equalization payment or business buyout will not be included in the receiving party’s income for calculating child support, and should have no effect on child support amounts. Additionally, the paying party will not receive any tax break or reduction in taxable income as they would from spousal support. The paying party must pay equalization payments with after tax dollars. The receiving party receives this income tax free. A business buyout or equalization payment is not modifiable once entered and the time for appeal has concluded, and the obligation continues regardless of the receiving party’s death (the paying party would still owe the ex-spouse’s heirs), the paying party’s death (the receiving party would have a claim against the paying party’s estate) or the receiving party’s remarriage. Money owed to a former spouse may, however, be discharged in a Chapter 13 bankruptcy (which requires payments to your creditors for 3-5 years) if the necessary qualifications are met. This may be important if the paying party experiences any severe financial decline and can no longer afford to pay the equalization amount.

The final method for transferring money from one party to another in a divorce or family law case relates to the payment of attorneys fees. The Court can order (or the parties can agree) to have one party pay all or a part of the other party’s fees. In Arizona, generally both parties are required to pay their own attorneys fees and costs. The court can, however, consider the financial positions of the parties and the reasonableness of the positions taken by the parties, and order one party to pay all or a part of the other party’s fees. Attorney fees are paid with after tax income, have no impact on child support calculations, and cannot be modifies once the time for appeal has expired. Attorneys fees can in many cases be discharged in a Chapter 13 bankruptcy, but not in all cases.

If you are going through a divorce and need legal advise regarding financial issues such as attorneys fees, child support, spousal support, and a business buyout or other property equalization, please call 800-899-2730 and ask to speak with Douglas C. Gardner, or visit our website at yourarizonadivorcelawyer.com.

Tempe Attorney Douglas C. Gardner Interviewed by Wall Street Journal Regarding Obesity in Divorce Cases

In many custody cases, the court is required to balance the right of both parents to privacy after a divorce or separation, with the needs of the children as to protection, health, and safety. While Courts desire to allow both parents to raise their children in autonomy from the Courts and the other parent, the Court will get involved when required to do so for the protection, health, and safety of the children.

As I was returning from a long morning trial, I was recently contacted by a reporter from the Wall Street Journal, who was doing a story on obesity issues in divorce cases, and the effect of obesity of the parents or the child on custody and parenting time issues. The reporter was looking for examples where the obesity of one of the parents was an issue as to the fitness of that parent to care of the children, as well as examples of cases in which the obesity of the child was an issue in parenting.

Under Arizona law, the Court is required in contested custody cases to consider the mental and physical health of the parents and children involved. Courts must therefore consider the obesity of parents or children in rendering custody and parenting time decisions. In cases where the obesity of one parent prevents that parent from caring for the children, the Court can award primary custody to the other parent to ensure that the children are properly cared for.

Obesity arises more often in divorce cases with regard to the weight or health of the children involved. Such an issue can arise when one parent is concerned about the health of the child and wishes to place the child on a restricted or special diet, while the other parent believes that the child is “just a kid” and needs to enjoy life to its fullest and not worry about weight issues until the child is older and has a better understanding of nutrition. I have been involved in cases where I represented the parents taking each side of this hypothetical issue.

The parent wanting to let the child “just be a kid” may feel that the child is only slightly overweight, and will grow out of it when the child hits the next growth spurt. The parent wanting to restrict the child’s diet may see a trend towards obesity, and wants to help the child form life-long health habits that will improve health.

In cases where one parent is a “health nut” and chooses to have only health foods in that parent’s house, but the child is a normal, healthy, skinny child, the Court will not require that the second parent similarly hold the children to the same diet as when in the first parent’s home. In such a case, the Court generally does not want to interfere with either parent’s right to raise the child in a way that that parent feels is best. The judge does not want to order that soda and chips are a health hazard. In this example, the parents’ rights of privacy win the balancing test as there is no genuine health and safety issue.

Let’s take another example where the health and safety issue is sufficient to overcome the parent’s rights to privacy. Imagine a child that has diabetes. In such a case, it becomes more readily clear that the diet of the child is a “health and safety” issue. The chips and soda that were no big deal in the first example, could now cause serious harm to the child. In cases of diabetes, Judges will quickly intervene if a parent refuses to adhere to a doctor prescribed diet. In extreme cases, the Court may restrict the parenting time of a parent who consistently refuses to follow a specifically prescribed diet.

To win these custody cases, my job, as your attorney, is to help define your case as either a privacy issue or a health and safety issue, and to present your case to the Court supporting the case as you see it.

If you are going through a divorce, or if you have been required to return back to court because of a disagreement as to parenting time or custody issues, please call 800-899-2730 and ask to speak with Douglas C. Gardner, or visit our website at yourarizonadivorcelawyer.com.

One of the biggest problems causing divorced couples to return to court after finalizing a divorce is the lack of a specific and detailed parenting plan.

Many people representing themselves, and even people represented by attorneys who do not know better or who do not want to go to the effort required, decide to use ambiguous or abbreviated parenting plans without the significant detail necessary to avoid potential conflict down the road.

In a divorce case, there are two parents, and therefore the chance of a “tie” vote when the parties disagree is very high. The written and very detailed parenting plan should serve as the tie breaking vote. In other words, so long as both parents are in agreement on how to proceed, the two living and breathing parents can outvote the piece of paper signed by the judge. However, when the parties are not in agreement, it is extremely beneficial for the parents to be able to resolve their disagreement by looking to the wording of the detailed parenting plan. When the parenting plan is ambiguous, it cannot break the tie and therefore the conflict continues until often the parties must spend thousands of dollars and return to court to fight over the issues once again. Had the parenting plan been specific, this fight could have been avoided.

When drafting a parenting plan, our attorneys are careful to set specific parenting time schedules, define specifically the days of the week and the holidays assigned to each parent, discuss which parent will provide the transportation, discuss both parent’s rights to contact the children by telephone, discuss which extracurricular activities the children will participate in, and how those costs will be divided between the parents.

If you are going through a divorce, or if you have been required to return back to court because of a disagreement as to parenting time, please call 800-899-2730 and ask to speak with Douglas C. Gardner, or visit our website at yourarizonadivorcelawyer.com

As a family law attorney, primarily involved in complex and high end divorces, it is refreshing to occasionally deal with the potential problems on the front end, when everybody is getting along fine, rather than at the back end when everybody is at everybody else’s throats. Negotiating a Prenuptial Agreement or Antenuptial Agreement and getting everything in writing before a marriage, allows the parties to take care of potential issues in an amicable and friendly fashion, and certainly costs much less than a contested divorce.

Arizona statute provides a legal framework to be used in the event of a divorce, including laws for spousal support or alimony and for the division of assets and debts acquired during the marriage. Without a prenuptial agreement, Arizona law is applied. With a prenuptial agreement, the parties contractually agree that rather than applying Arizona law for general divorces, the specific contract between the parties will apply.

Not everyone needs a prenuptial agreement. Arizona statutory law provides a framework that for traditional marriages (two young people with little or no assets and no other children from prior to the marriage) is usually fair and equitable, and without a prenuptial agreement, Arizona law is applied. There are some risks, as the law can change at any time, whereas a prenuptial agreement can lock in a specific outcome or resolution. Marriages in which either or both parties have other children from prior to the marriage, and marriages in which one or both parties have significant assets, however, may involve more detailed issues which make Arizona’s general laws unfair or inequitable or potentially harmful to one or both parties.

Many people experience sticker shock at the cost of a good prenuptial agreement, as it can cost several thousand dollars. In order to make sure the prenuptial agreement is enforced and upheld by the court in case it is eventually needed, it is important that a prenuptial agreement has been prepared and negotiated with both parties on equal footing, and that neither party was forced into the agreement at the last minute or forced to sign the agreement without a full understanding of the legal significance of entering into such an agreement.

If you or anyone close to you is considering a marriage, and there are issues which may require the use of a prenuptial agreement for protection and to ensure fairness and equity, please call 800-899-2730 and ask to speak with Douglas C. Gardner, or visit our website at http://www.yourarizonadivorcelawyer.com/.

In its June 9, 2011 ruling in Gibbs v. Gibbs (2 CA-CV 2010-0120 & 2 CA-CV 2010-0172 (consolidated)), the Arizona Court of Appeals ruled on a case regarding child support for an adult child with a severe mental handicap. The full opinion is presently posted at http://www.apltwo.ct.state.az.us/Decisions/CV20100120%20Opinion.pdf.

In this case, the child support had ended when the child reached age 22, and the issue did not come back to court for several years. The father, in an effort not to pay child support, argued that it was now too late to bring this case back to court because the mother did not ask for support as the child reached age 22.

The Court determined that the issue regarding the mental handicap of the child was not previously determined, and therefore the Court had jurisdiction to enter new child support orders despite the child being well over 18 and despite the child support ending when the child turned 22 by agreement of the parties.

The relevant Arizona Statute, Section 25-320(E) provides:

Even if a child is over the age of majority when a petition is filed or at the time of the final decree, the court may order support to continue past the age of majority if all of the following are true:

1. The court has considered the factors prescribed in subsection D of this section.

2. The child is severely mentally or physically disabled as demonstrated by the fact that the child is unable to live independently and be self-supporting.

3. The child’s disability began before the child reached the age of majority.

In this case, the child already had the disability when she reached age 18, but the full effect of the disability was not known at that time. Had the child been fully healthy at age 18, and then lost mental capacity, the Court would not have jurisdiction to re-open the child support matter once the child was emancipated.

If you are looking for an attorney to assist you with a simple or difficult child support issue or other family law matters, please call 800-899-2730 and ask to speak with Douglas C. Gardner, or visit our website at http://www.yourarizonadivorcelawyer.com/.

Generally, in divorces in Arizona, the assets and debts are equitably (fairly) divided, which is generally equally divided. For some people, it may be advantageous to receive the retirement accounts, while other people may be frustrated with retirement accounts because they often have a 10% penalty for withdrawals that start before that person turns 59 ½ years old.

In a recent online article, located at lifemanagement.com, a discussion is held regarding creative ways to use larger retirement accounts to provide cash flow before a party reaches age 59 ½. This is a complex strategy, and before using such a strategy, divorcing parties should make sure to talk this over with both and experienced accountant and an experienced family law attorney.

Under this strategy, with specific IRS restrictions, a party can receive a stream of periodic (usually monthly) income from a retirement account after the divorce for five years or such longer time until the party reaches age 59 ½. If this is properly set up, the 10% penalty for early withdrawal can be avoided. The receiving spouse would still pay income taxes on the periodic income, just as he or she would if receiving spousal support. However, avoiding the 10% penalty will make a significant difference in the value of this periodic income stream.

To learn more about strategies for dividing retirement accounts, or to discuss other family law issues with an experienced family law attorney, contact Douglas C. Gardner, with McGuire Gardner, a division of Davis Miles PLLC, at 800-899-2730, or visit our website at yourarizonadivorcelawyer.com.

Effective June 1, 2011, child support in Arizona has been changed with the implementation of the new Arizona Supreme Court Child Support Guidelines. While much has stayed the same from the 2005 version used until recently, there have been several important changes that will affect many people paying or receiving child support.

The Self Support Reserve has been raised to $903, meaning after paying child support a parent must be left with at least $903 remaining from their income or attributed income, or the Court must lower their child support.

Claiming the children for federal and state tax deductions is now to be divided proportionally between the parties based upon the proportion of income, with clarification as to the rounding. This may allow a modification of child support that would increase or decrease the number of children that either parent can claim in a given tax year.

These new changes make it so that the 2011 changes are effective for cases in which the child support order is entered after June 1, 2011. Prior changes were only effective for cases filed after a certain date. This will cause cases that are currently pending to proceed under the modified child support amounts.

Finally, in general, the child support amounts have risen. For families with one or two children, the increase is not as significant, but for families with greater numbers of children, the increase in support can be substantial.

To learn more about these changes, or to discuss modifying or establishing child support in your case, please contact one of the experienced family law attorneys with McGuire Gardner, a division of Davis Miles PLLC, by calling 800-899-2730 or learn more by visiting our website at www.yourarizonadivorcelawyer.com.