Posts Tagged ‘arizona law’

ARIZONA DIVORCE LAWYER: FATHER’S RIGHTS IN ARIZONA CUSTODY CASES

Monday, July 16th, 2012

Submitted by Attorney Douglas Gardner

 

East Valley Divorce Attorney Discusses Father’s Rights in Divorce Cases

 

 

Arizona has moved forward in terms of Father’s rights recently, which changes how cases should be handled whether you are the Mother or the Father.

 

In the 1970s and 1980s, a typical custody order would have the children reside with the Mother, and Father would see the children on alternating weekends and two weeks during the summer.  As we moved into the 1990s and the 2000s, Father’s rights and Father’s role in raising children received significant attention from mental health professionals, which trickled its way into state laws and into the courtroom practices of judges.  Weekday parenting time to the Father became more common, and alternating holidays, equal sharing of summer and Christmas school recess became more common.

 

Over just the last two years, the Courts have moved beyond this, to much more often awarding equal parenting time when the parent’s live close enough to allow the children stability in school while residing with both parents. 

 

Moving to equal parenting time has its pros and cons.  Many children feel like they live at neither house, but “camp” at both houses and move back and forth.  Other children enjoy the significant relationship with both parents being much more involved.  Equal time parenting plans allow both parents to have their own time as well as parenting time, and can balance the various difficulties  in life including jobs and other responsibilities.  However, Equal time for many mother’s necessarily includes reduced parenting time. 

 

One difficulty often ran into is societal expectations.  While these changes are great for Father’s that want to be more involved, many mother’s feel that the Court has punished them because they are familiar with other families in which the Mother was named the primary parent, and they feel that they are as good or better of a parent than this other parent.  Such comparisons fail to account for the dramatic changes in the law over just the past few years. 

 

While many Father’s enjoy this additional time with their children, some Father’s realize that having the children 50% of the time causes them to be away from work more of the time, as schooling, sick children, and other issues are now falling on their parenting time 50% of the time. 

 

Equal parenting time is not appropriate in all cases.  I still see many cases in which Father or Mother can provide a better life style, stability, safe environment, and other factors and in which we can persuade the Court to award my client’s more than 50%/50% custody.  However, proving that such is the case requires a solid case and a well prepared trial plan. 

 

If you are experiencing legal issues involving custody or other difficult issues, whether as part of a divorce, after the divorce has already been entered, or a custody battle in which the parents were never married, you should have experienced legal counsel on your side. Please call 800 899-2730 and ask to speak with attorney Douglas C. Gardner, or visit our website at yourarizonadivorcelawyer.com.

Calculating A “Ball-park” Child Support Amount.

Monday, July 9th, 2012

 

Submitted by Attorney Karl Scholes

 

I will often have my divorce, or post-decree, clients ask me, “How much child support will I be receiving/paying?” My normal answer to them is a resoundingly, lawyerly, “It depends.”

 

When they press me for a more specific response, I tell them, “Well, we just need to apply the Arizona Child Support Guidelines.” I then proceed to instruct them as to what the Guidelines specify.

 

However, when they push back even more, I tell them, “Oh, you are looking for a “ball-park” calculation. That I can get for you.”

 

The remainder of this article is an explanation on how to come to a “ball-park[1] ” child support calculation.

 

First, one should understand at least a little of the background about child support in Arizona. It is important to understand that Arizona law requires custodial and non-custodial parents to provide “reasonable support” for their minor children. A.R.S. §25-501(A). A parent’s child support obligation has priority over all other financial obligations of the parent. A.R.S. §25-501(C).

 

In addition, the court receives the authority to award child support under A.R.S. §25-320. This statute also makes it mandatory for the court to issue an order of child support as per the Arizona Child Support Guidelines, (unless the court finds that a deviation is necessary… which is a subject matter for another day.)

 

The Arizona Guidelines follow the Income Shares Model, which means that the total child support amount approximates the amount that would have been spent on the children if the parents and children were living together.  The guidelines involve numerous intricacies, and for a full application, one should consult an attorney – who is experienced in using the Arizona Child Support Guidelines – as to how the guidelines apply to each individual case.

 

Second, to get a “ball-park” child support calculation, one must be able to answer the following questions:

 

1.      What is the gross income of both parties? (Note, this issue sometimes becomes complicated, especially if one party is self-employed, has an income that is not easily ascertainable, or if one party is unemployed. Consult an attorney if there are any complications in your case.)

2.      What is the number and ages of minor children involved? (Note, if this factor is complicated, please consult a mental health professional before seeking the advise of an attorney.)

3.      What is the cost of medical/dental/vision insurance for the minor child(ren): The key to this factor is to find the cost for medical insurance for just the minor children. (Note, at times, this factor can be complicated as well. Please consult an attorney if there are any complications in your case.)

4.      What are the monthly childcare costs for the minor children?

5.      Are there any extra education expenses paid for the minor children?

6.      Are there any extraordinary (gifted or handicapped) expenses for the minor children?

7.      How many days, out of a year, will the non-custodial parent have with the minor children?

 

Third, the next step is to plug the numbers from the answers above into their corresponding areas in the Arizona child support calculator, which can be found here:

 

Fourth, once you have plugged in the numbers above into the calculator, it will dispense a number under the heading “Child Support Obligation to be paid by____________”. This is where you will have your “ball-park” child support number.

 

If there are complications in your child support case, or to get an exact child support calculation, contact a family law attorney who is experienced in using the Arizona Child Support Guidelines.

 

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


[1] While a “ball-park” calculation of child support may be important for purposes of settlement, or setting expectations, one should note that a full child support calculation should be done by an attorney who is experienced in using the Arizona Child Support Guidelines.  

 

 

ARIZONA DIVORCE LAWYER: COMMUNICATION ISSUES DURING AND AFTER DIVORCES (FOR THE CHILDREN’S SAKE)

Monday, June 18th, 2012

Submitted by Attorney Douglas Gardner

Tempe Arizona Divorce Attorney Speaks About Communicating With Spouse or Ex-Spouse About The Children

 

Most expensive Arizona divorces become expensive because of poor communication about the children.  Other factors can occasionally cause cases to get expensive, but generally custody issues have a large impact upon the cost of a case.

   

Except in extreme cases, the Court will generally order that the parties share joint legal custody.  Joint legal custody requires that both parents work together to make major medical, educational, and religious decisions.  In both sole custody and joint custody cases, the parties will still be required to have some level of communications regarding the logistics, including exchange times, exchange locations, and holiday scheduling.

 

In many cases, the parties will quickly (or at least eventually) learn to get along in a business-like relationship.  While the emotion and romance are long since gone, the parties should learn to work together at the business of raising their children.  Even in a business-like relationship, in which both parties are seeking to receive a personal advantage, parties can learn that it is mutually advantageous to compromise and to acquiesce to the other parent’s requests, so that at other times the other parent will compromise and acquiesce to future requests needed. 

 

It is important in developing a business-like relationship that the compromise work both ways, and the acquiescence work both ways.  If one parent is constantly a taker, and the other parent constantly acquiescing, this will cause resentment and will eventually result in a breakdown of communications and an unwillingness of one or both parents to compromise. 

 

A good divorce attorney should be able to discuss with you and share with you ways to work on communications, ways to set appropriate boundaries so that you are not taken advantage of, and other methods for “training” your ex-spouse or your soon-to-be-ex-spouse to understand that compromise works both ways. 

 

It is also of vital importance to have a detailed and strongly worded parenting plan in place.  While it is beneficial to both parents to work together and cooperate, and while it would be wonderful if both parents got along so well that the parenting plan was never needed, the fact is the parents are divorced or divorcing, and this indicates that there is a good chance that at least occasionally communications break down.  A solidly written parenting plan or custody order provides a fall back position for times when compromise is not occurring.  The parenting plan should detail the rights and responsibilities as well as the parenting times.  The parenting plan serves as the tie-breaking vote for occasions when no agreement can be reached.  The parent wishing to follow the written parenting plan prevails at that time. 

 

If you are experiencing legal issues involving custody or other difficult issues, whether as part of a divorce, after the divorce has already been entered, or a custody battle in which the parents were never married, you should have experienced legal counsel on your side. Please call 800 899-2730 and ask to speak with attorney Douglas C. Gardner, or visit our website at yourarizonadivorcelawyer.com.

Strategic Reasons for Being Nice-Custody Determination

Friday, June 8th, 2012

 

Submitted by Attorney Kirk Smith

 

In many cases, parents divorcing, or parents who were not married but are now separating, will fight a merciless custody battle for their children. The extreme acrimony attendant with such battles, in my experience, can have a very real impact on the children of these divorces. Increased cooperation between the parents lessens this emotional impact, and by itself, should be sufficient incentive for most parents to “play nice” during the subsequent legal process.  

 

None the less is there a strategic reason for one parent to be gracious to the other, outside altruism, that benefits them in the court’s final custody determination?  

 

In most cases one parent will become the primary physical custodian of the children, meaning that that parent will have the children at their residence the majority of the time each week. There are specific statutory factors the family law court examines when determining who becomes the primary physical custodian of the children. See Generally A.R.S. §25-403. 

 

One of the factors the court looks at in determining who should receive primary physical custodianship is;

 

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.A.R.S. § 25-403 (6)

Of course in some cases the other parent is a real danger to the children therefore it is necessary to diminish that other parent’s time with the children or ask that it be supervised. More often then not, however, both parents are usually suitable to care for the children, and an attempt to completely eliminate the other parent’s time with the children will be seen by the court negatively. The parent trying to “thwart” the other parent’s visitation with the children then could seriously and detrimentally effect that parent’s  chance of becoming the primary physical custodian because that parent did not “allow the child frequent and meaningful continuing contact with the other parent.”

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

A rule of thumb, assuming that the other parent is not a danger to the children, is to allow and encourage the other parent’s time with the children. This does not mean that you must have a half time schedule with the other parent, nor does it mean that anytime the other parent asks for time it must be provided. What it does mean is that going to extremes by trying to eliminate the other parent’s access to the children without good cause, strategically speaking, can backfire and decrease your chances of gaining the final custody determination from the court you wish.

 
 
 
 
 
 

 

 

 

 

 

 

RELOCATION ISSUES

Tuesday, May 29th, 2012

Seasoned attorney, Ron Fineberg, addresses the issue of relocation and what Arizona law requires of parents. 

 

Q&A’s

 

Question:

Our divorce was final two years ago.  The father and I were granted joint custody of our two minor children with substantially equal parenting time (visitation).  Because of my job, I need to move to California.  What do I do if the father will not agree to allow the children to move with me?

 

 

 

Answer:

 

Under those circumstances, Arizona law requires that the parent who wishes to “relocate” with a child outside of the state, or more than one hundred miles within the state, must provide the other parent written notice by certified mail, return receipt requested, at least sixty days prior to the anticipated relocation.  If the non-moving parent opposes the relocation, that parent may petition the court to prevent relocation of the child.  The petition to prevent relocation must be filed within thirty days after the notice is made, otherwise the petition to prevent relocation may be granted to the non-moving parent only upon a showing of good cause. 

 

If the petition to prevent relocation is timely filed, it is then up to a judge to determine whether or not to allow the parent to relocate the child after considering the “best interests” of the child.  The burden of proving what is in the child’s best interest is on the parent seeking to relocate the child.  A.R.S. §25-408, 25-403(A) and ARFLP 91(E).

 

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

ARIZONA DIVORCE: WHAT YOU SHOULD DO IF A DIVORCE IS COMING

Friday, May 18th, 2012

Tempe Arizona Divorce Lawyer Discusses Steps That Should Be Taken To Protect Yourself If A Divorce or Legal Separation Is Coming

 

 

Under Arizona law, as soon as the divorce case is filed and served upon the other person, and both parties are aware of the existence of the case, the Preliminary Injunction provides each party with certain protections such as preventing the other party from absconding with the children or assets. 

 

However, even before a case is filed, there are certain steps that should be taken to protect one’s self and to ensure that information remains available and obtainable.

 

As soon as you believe you will be going through a divorce, make sure you change your passwords to your computer, email accounts, blogs, cell phones, etc.  While some of the information on your electronic devices may need to be disclosed and provided, you will need to ensure that you have sole access to these lines of communication.  You want to ensure that if your attorney sends you attorney/client privileged communications by e-mail that only you will have access to these communications.

 

You should also ensure that you have safely written down the account numbers, account balances, and the name and address of any financial institution or retirement company with which you or your spouse have accounts.  This information can occasionally disappear once the divorce is filed, and while your attorney may be able to subpoena or otherwise obtain this information, this comes at a cost. 

 

You should also make a list of any valuable property that you brought into the marriage, or that you have received as a gift or as an inheritance.  Under Arizona law, these are likely to be determined to be your sole and separate property. 

 

You should make a separate list or inventory of every item of personal property that you and your spouse own.  This can be done with a video camera walking room to room and panning across each room to show the furniture and appliances in each room, or can be done by a spreadsheet or otherwise.  If for some reason you are unable to return to the marital home, you will want to have already completed this list ahead of time.

 

Finally, you will want to find a trusted friend or family member, with whom you can store this information and copies of any important documents that you do not want to disappear or become lost. 

 

If you are considering a divorce or legal separation, and would like to speak with an experienced family law attorney about your rights, responsibilities, and ways to protect yourself in your upcoming divorce, please call 800 899-2730 and ask to speak with attorney Douglas C. Gardner, or visit our website at yourarizonadivorcelawyer.com.

TEMPE AND MESA ARIZONA DIVORCE AND FAMILY LAW LAWYER COMMENTS ON COMMON TAX ISSUES

Thursday, May 3rd, 2012

Arizona Divorce And Family Law Tax Issues Must Be Considered Year Around By Attorneys and Parties

In dealing with hundreds of divorce and family law cases, parties and even many lawyers often forget to include provisions regarding common tax treatment. These important financial issues should not be overlooked.  As the April tax deadline for 2011 is behind us, we must nonetheless continue to look at 2012 and future tax years in all settlement and trials.

The most common issues is the claiming of the children for tax exemptions.  Under the federal Internal Revenue Service (IRS) rules, the parent with whom the child resides the greater part of the year is entitled to claim the child as a general rule.  The Federal IRS rules do, however, allow for the State Court divorce judge to make a different allocation.  Under Arizona family law, the statute requires that in most cases the Judge must divide the claiming of the children proportionate to income.  As far as the IRS goes, this is taken care of by the use of form 8332 which can be found online or obtained through a tax preparer.

It is to the benefit of both parties to consider who will benefit most from the tax exemption.  In some cases in which one party will receive a substantially greater advantage than the other party, one party can be permitted to claim the child every year in exchange for an increase or decrease in child support.  This would be done by agreement of the parties and should be included in an Order signed by the Court.

Another common issue is whether to file jointly or separately.  It is often financially advantageous to file jointly, though in high conflict cases the difficulty in working together toward a common goal may outweigh the financial advantage.  The total tax return can be divided equally in some cases.  In other cases, it is more fair to calculate the two returns separately, and then determine how to split the incremental increase in the refund if the parties file jointly.  Talk with your tax preparer or CPA regarding filing jointly or separately, and work with your divorce or family law attorney to ensure that your agreement is written in such a way to maximize your tax benefit.

There are tax advantages to being able to file as the head of household.  Generally this can be claimed by the parent with the child the majority of the time.  If divorcing couples have more than one child, they may each be able to claim at least one child as the head of household.  This should be reviewed by your tax preparer or CPA, and worked through with your divorce and family law attorney.

In some cases, it may be advantageous to file single, rather than married filing separately.  Even if your divorce case has not concluded, there are specific rules that when applicable may allow a party to file a single.  These rules include maintaining a separate residence for all of the past six months of the taxable year, and maintaining over half of the cost of maintaining the home.  You should work through these issues with your tax preparer or CPA, and work with your divorce lawyer to ensure that any agreements or court orders permit you to file as you have been advised by your tax professional.

Because the tax issues can be complex, you should ensure that you work with an experienced family law attorney or divorce lawyer.  If you are involved in a divorce or custody case, and are looking for experienced representation involving tax issues or other complex issues, please call 800 899-2730 and ask to speak with attorney Douglas C. Gardner, or visit our website at yourarizonadivorcelawyer.com.

Arizona Lawyer Discusses Effect of Wage Garnishment By Creditors When Child Support or Spousal Maintenance (Alimony) Is Paid

Wednesday, March 16th, 2011

In all dissolutions of marriage entered after January 1, 1988, and in any modifications of orders entered after that date, where child support payments are ordered, a wage assignment is automatically entered in favor of the person or agency entitled to receive the support payments. A.R.S. § 25-504(A).

In a proceeding in which spousal maintenance is ordered, the court may enter a wage assignment on either party’s request, but the wage assignment is not mandatory. Id.

Wage assignments issued pursuant to A.R.S. § 25-504, for either child support or spousal maintenance, have priority over all other attachments, executions, garnishments or assignments. A.R.S. §§ 12-1598.14(B) and 25-504(P).

Where a judgment debtor’s earnings become subject to more than one writ of garnishment, and of spousal and child support priority a judgment creditor recovers no nonexempt earnings for two consecutive paydays, the lien on earnings of such judgment creditor is invalid and of no force and effect, and the garnishee shall notify the judgment creditor accordingly. A.R.S. § 12-1598.14(C).

Garnishment limits for creditors (except for child support or spousal support) is up to 25% of a person’s gross wages. For child support and spousal support, the limit is up to 50% of a person’s gross wages.

In some cases, it may be advantageous to ensure that child support or spousal support is being paid by a wage assignment. Because of the priority for child support and spousal support wage garnishments, your income deduction will be going to support your children or ex spouse, which is generally preferable to the money going to a credit card company or other debt collector.

If you would like to discuss child support, spousal support, or other family law issues with an attorney, please call McGuire Gardner, PLLC at (800) 899-2730 or visit our website at YourArizonaDivorceLawyer.com.

Can An Order Of Protection Include Animals?

Thursday, June 17th, 2010

Can An Order Of Protection Include Animals?

Effective July 29, 2010, Senate Bill 1266 which was passed into law (Ch. 276)(2010), will allow a party obtaining an Order of Protection to obtain exclusive custody of a pet or animal and preclude the other party from coming near the animal.

Specifically, the new law states that the “judicial officer may also grant the plaintiff the exclusive care, custody, or control of any animal that is owned, possessed, leased, kept, or held by the plaintiff, the defendant, or a minor child residing in the residence or household of the plaintiff or the defendant, and order the defendant to stay away from the animal and forbid the defendant from taking, transferring, encumbering, concealing, committing an act of cruelty or neglect in violation of Section 13-2910, or otherwise disposing of the animal.”

To learn more or to schedule your free initial consultation by telephone please call us at (480) 829-9081 or visit us at yourarizonadivorcelawyer.com

Division of Marital Property/Debts- Don’t Get a Cookie-Cutter Outcome

Monday, April 26th, 2010

Arizona law requires the “equitable” division of marital property and marital debts during a divorce. Generally this is intended to be an “equal” division, though there are some cases in which an equal division may not be a fair (or equitable) division.

Specifically, Arizona statute provides that the Court may consider “excessive or abnormal expenditures and the destruction, concealment, or fraudulent disposition of property.” A.R.S. § 25-318(C). Additionally, the Courts may properly consider “other factors that bear on the equities of a case.” Inboden.

For example, the Courts may consider the “length of the marriage; the contributions of each spouse to the community, financial or otherwise; the source of funds used to acquire the property to be divided; the allocation of debt; as well as any other factor that may affect the outcome.” Inboden.

Courts are trained to equally divide property in each case, as this is what occurs most frequently. Accordingly, if you believe that it would be fair that you receive a larger share of the marital property to make the division a fair division, you will need experienced legal counsel to present your case and convince the Court that your case is unusual and deserving of a different outcome than the cookie-cutter divorce that the Courts are accustomed to.

Please feel free to contact McGuire Gardner today to speak with an experienced family law attorney about your unique case.