Posts Tagged ‘East Valley’

Finding The Right Attorney: Finding an Appropriately Balanced Attorney

Wednesday, January 2nd, 2013

Arizona Divorce Lawyer Discusses How To Find The Right Attorney

Submitted by Attorney Douglas C. Gardner

I have always found photos of the heavy built person with the bulldog on a leash next to the overly stylistic person with the overly dressed up French poodle to be hilarious.  People joke about other people finding dogs that most resemble them.  Throughout my law practice, I have often found that many clients seem to select lawyers who resemble themselves in many ways.  Specifically, people of low morals and ethics seem to be able to find attorneys with low morals and ethics.  Overly aggressive individuals seem to seek out attorneys who will be overly aggressive.

Such behavior can become quickly problematic, as it may be more advantageous to have an attorney who is appropriately balanced.  When I am representing clients in a divorce, I recognize and understand that my clients are normal people, but that they are going through what is most likely the most difficult time in their lives.  Generally clients in divorce cases are struggling financially (which usually occurs even before the divorce starts, and may be part of the cause).  Clients going through divorce cases have to juggle parenting duties that were historically divided between the other parent.  Clients going through divorce have strong emotions that they must work through including the hurt, betrayal, anger, etc.

I feel that when hired as a divorce attorney, my job is to recognize the emotion, but to not get pulled in or effected by the emotion.  I feel that as a divorce attorney I am the legal and logical “Jiminy Cricket” proverbially on my client’s shoulders whispering to them what the legal and logical choice would be and helping them see beyond their emotional choices.  Choices made during a divorce often have life-long lingering effects, and should be carefully considered from the emotional, legal, and logical perspectives before making any decision.

The problem with overly aggressive people seeking out overly aggressive attorneys, or less ethical people seeking out less ethical attorneys, is that instead of an advocate fighting to  help you understand what is best, you may hire a cheerleader that will simply encourage you to act out emotionally without considering the logical and legal ramifications.

Any divorce attorney who has handled more than a few cases has been “fired” by a client.  For me, it does not happen often, but does occur.  I have certainly been hired by many more clients who have fired prior attorneys than I have been fired from.  I have found it interesting that I am usually fired for one of two reasons:  1) being too nice, or 2) being too aggressive.  Whenever I have a client that indicates that he/she is not fully satisfied with my services, I explain to them how we can fix things to make it right, and I discuss with them that they have the option of representing themselves or hiring another attorney (within our firm or from another firm).  It is important for clients to have confidence in their chosen attorneys, so that clients trust the legal and logical advice given.  It is important for clients to have confidence in the strategy (for settlement and/or for trial) utilized by the attorney.

My general preference in any case is to come in nice, and to try and resolve cases amicably through settlement.  I have learned that when I come in too harsh and too strong that it may cause the case to go through litigation unnecessarily.  It is generally easier to get meaner and nastier as the case progresses than the other way around.  Some clients are looking for attorneys that will instantly be on the attack.  While there are certain cases where this is appropriate (such as an emergency cases where emergency orders are needed right away), in general, those attorneys who come on unnecessarily strong at the beginning of a case do so simply to ensure that the case costs much more than it would have otherwise needed to cost.

Even when taking the gloves off, it is important to have an attorney who remains ethical and professional at all times.

If you are involved in a divorce case or other parenting time case involving “legal decision making” (the new word for legal custody), 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.

Last Month For Custody

Monday, December 10th, 2012

Arizona Divorce Lawyer Says Goodbye to Custody

Submitted by Attorney Douglas C. Gardner

I mentioned this in my blog last month, but this is so huge I wanted to address it once more.  Goodbye Custody.  In a recent seminar, where most of the top divorce and family law attorneys and many of the family law judges were gathered, the primary topic was the end of “custody.”

One attorney suggested a marketing campaign of “Last Chance to Get ‘Custody!’”  Most people have no idea that they will no longer be able to go to court to get custody beginning January 1, 2013.

While this may sound like a big change, it is primarily semantics.  Sole Legal Custody and Joint Legal Custody are being replaced with the terms “Sole Legal Decision Making” and “Joint Legal Decision Making.”

At least initially, not much changes except for the wording.  There are several other changes to the law that will over time alter the trajectory of the family law changes that have been happening for decades.

If you need to establish “custody” or “legal decision making” for the first time, or if you have a custody order and you are returning to Court, beginning in January the Courts will be required to put into effect orders for “legal decision making.”  Existing “custody” orders will remain valid, but as each case returns to court, the new replacement orders will no longer include the “custody” terminology.

Do not let this scare you.  While this is your last month to get Custody, very little has actually changed in the short term with this new law. Over time, we will continue to see important changes and you will want to ensure that you are represented by an attorney that is aware of these changes and in tune with the ever-changing law.

If you are involved in a divorce case or other parenting time case involving “legal decision making” (the new word for legal custody), 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.

Arizona’s New Family Law Changes

Saturday, December 1st, 2012

GILBERT, TEMPE AND MESA ARIZONA DIVORCE AND FAMILY LAW LAWYER DISCUSSES SIGNIFICANT CHANGES TO FAMILY LAW STATUTES

Submitted by Attorney Douglas C. Gardner

                       

As of January 1, 2013, Arizona Courts will no longer decide custody cases.  Parents will no longer receive visitation with their children in divorce and other child related cases.  There are several significant and important changes to Arizona statute that will go into effect on January 1, 2013.  I hope I have your attention.

Many of these new changes are semantics, and simply a change in the words we use and the definition of those words.  Courts will still undertake the same issues, but rather than entering orders for sole custody or joint custody, the Court will enter orders regarding which parent will be the “legal decision makers.”

Also, by definition, a parent will no longer have “visitation” but will have “parenting time.”  Only grandparents and other non-parents can get court ordered “visitation.”

While peripherally, these changes will simply make it difficult for attorneys and judges to remember what the new jargon is, the real change will come as time marches on.  These new changes are intended to dramatically further the co-parenting and the joint involvement of both parents.

Up through the late 1970s and  early 1980s, the Courts were legally to consider the presumption that a mother was the parent with whom children of “tender years” were to reside with.  This was legally eliminated some 30 years ago, but has continued to linger while slowly going away.

Over the last few years, there has been a dramatic additional shift towards having father’s more significantly involved.  More and more judges are starting with the presumption of an equal parenting time plan rather than the presumption that mom will have the children except on alternating weekends.

Another big change is the elimination from the list of items for the Court to consider in custody cases of “which parent has been the primary care provider.”  This often favored mothers, as mothers more often provide the primary care for younger children.  This has been replaced with “the past, present and potential future relationship between the parent and the child.”  This more future looking consideration may have a very significant impact on many child related cases.

The long term effects of these changes are yet to be determined.  The clear intent of the legislature is to ensure that there is no bias based upon the gender of the parents.

If you are involved in a divorce case or other parenting time case involving “legal decision making” (the new word for legal custody), 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.

 

Arizona Dependency Deductions

Friday, October 12th, 2012

GILBERT, TEMPE AND MESA ARIZONA DIVORCE AND FAMILY LAW LAWYER DISCUSSES CLAIMING CHILDREN FOR TAXES

Submitted by Attorney Douglas C. Gardner

 I was recently honored by an invitation to speak before a large group of local accountants and todiscuss with them issues involving an overlap between their accounting and CPA practice and my legal practice as an Arizona divorce and family law attorney.

I had gathered several topics that I wanted to address with them, and was prepared to speak for my allotted time.  As I delved into the issues I had prepared, the questions that surged from the audience quickly led me to the one issue that they most wanted to discuss, who gets to claim the children as dependency deductions and credits in Arizona. 

The problem lies in the fact that tax law or IRS regulations are federal, and divorces in Arizona are governed by state law.  Generally, when federal law covers an issue, it trumps or overrides conflicting state law.  However, with regard to claiming children, the IRS law recognizes that in divorce cases the divorce court should have the discretion to divide the right to claim children.  In fact, IRS provides for the general rule, which is that the parent with whom the children reside with for more than 50% of the time claims the children.  The stated exception, however, is that a state divorce court can order this division to occur otherwise. 

To accomplish this, the IRS requires a parent that is able to claim the children pursuant to a Court Order, but that does not have the children at least 50% of the time, to complete a Form 8322.

IRS has over the past few years tightened its regulations and no longer accepts court orders as evidence of who can claim the child, but strictly requires the form 8322.

The accountants wanted to know what they should do or advise the client to do when the wrong parent claimed the children or refused to sign the form 8322. 

As IRS now strictly requires the Form 8322, the sole recourse is to return to Court and ask the Court to strictly enforce the prior orders regarding claiming the children. 

Many clients have concerns with the costs of returning to court.  Having done this many times, the best way is to narrowly draft the documents filed with the Court and try to limit it to a single prompt emergency hearing on this single issue.  Sometimes, this can be handled with a single demand letter from an attorney and court can be altogether avoided. 

 

Generally, the Court will not be at all pleased with a party who has willfully disobeyed a court order.  The Court will often impose sanctions upon such a party, which may include payment of some or all of the attorneys fees involved. 

If you are involved in a divorce case involving child support, tax issues regarding the children, 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.

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

TEMPE AND MESA ARIZONA DIVORCE AND FAMILY LAW LAWYER DISCUSSES BUSINESS VALUATIONS

Monday, July 30th, 2012

 

Arizona Divorces, Equitable Division of Assets and Debts, Including Complex Business Valuations:

Submitted by Attorney Douglas C. Gardner

Under Arizona law, the Court must equitably divide the assets and debts of the parties involved in a divorce case.  The general rule is that the equitable division will also be an equal division, though there are some exceptions where an un-equal division is considered equitable or fair by the Courts. 

Many assets and debts are simple enough to divide.  If there is $1,000.00 in a bank account, each party simply takes $500.00.  If one side already took $400.00, then of the remaining $600.00, one party will receive another $100.00, and the other party will get the $500.00. 

Similarly, with debts, each party is generally required to pay 50% of the debts.  Sometimes a house can be sold and the equity can be used first to pay down the debts.  Sometimes one party will do a balance transfer of 50% onto a different card, and each party will then be required to pay their 50% off at their own pace. 

Retirement accounts such as 401(K) accounts can be divided quite readily, though doing so may require a court order or complex paperwork.  The concept though is the same in that each party will get 50%. 

By settlement of the parties, and occasionally by court order, certain items are offset against other items.  The Court may give Husband the $500 pink sewing machine and give Wife the $500 orange chain saw, which would be an equitable division as each party has an item of equal value. 

Some care must be taken when using offsets or setoffs.  For example, $1000 in a savings account is not equal to $1000 in an IRA or 401(k).  The $1000.00 in the savings account has already had the taxes paid.  The $1000 in the IRA or 401(K) will require taxes of approximately 20% and a penalty in most cases of about 10%.  So the $1000 IRA or 401(K) nets only about $700.00 and the $1000.00 in the savings account nets the full $1000.  Similar issues result in property, real estate, stock, and businesses that have capital gains and other tax issues involved.  A qualified and experienced attorney should be able to help you understand the principles, and a CPA or accountant should be able to help you specifically quantify these valuation issues.

Having been involved in many complex divorces, an issue that often arises is the division of a business owned by one or both of the parties.  In cases where one party owned the business prior to the marriage, the other party may still have some claim to a part of the business.  In cases where the business was purchased or built during the marriage, the business must be equitably divided. 

Sometimes the easiest way is to sell the business and each party receives 50% of the net sales proceeds.  This makes things simpler for both parties, both attorneys, and the Judge.  However, in many cases the business is not one that is easily sold, or the business is the livelihood of one of the parties.  In these cases the business may be sold by the community to one of the individuals, or rather the purchasing party will pay the other party 50% of the value of the business. 

Figuring out the value of the business can be expensive and complex.  An appraisal for most houses costs $300-$400, and these can usually be obtained quite quickly.  The abundance of houses, all somewhat similar to one another (most have a kitchen, a family room, a few bedrooms and bathrooms) allow for comparable sales to be used to quickly identify the going rate for houses of a certain size and in a certain location.  With businesses, they are much less one size fits all.  Some businesses such as accounting or medical practices are service related.  Other businesses such as restaurants and grocery stores are retail, merchandise, or goods related.  Some businesses own the real estate used, while others rent or lease.  Some businesses are very risky and demand much higher returns.  Some businesses have intense competition, while other businesses have unique niches. 

Having been involved in many divorces including businesses, and having an accounting, finance and business background myself, I have seen how important it is to have businesses professionally evaluated.  Sometimes this can cost a few thousand dollars, but think for a moment what the cost to just guessing would be.  Hypothetically, the parties “guess” the business to be worth $300,000.00.  A business valuation would have cost $3,000.00.  Each party would have paid half of the business valuation.  If the “guess” is off by more than $3,000.00, one party will get burned.  What if the business was really worth $320,000.00 instead of $300,000.00?  The receiving party would receive $160,000 instead of $150,000.00 for half of the business.   This small difference in value would have easily justified the cost of the business valuation. 

There are some cases where the business is a very small business, or a new business with lots of debt, that is simply not worth much.  In these cases the business may not merit a full blown appraisal or valuation.  There are some options that can be considered to help both parties make appropriate decisions in such cases. 

Once the value of the business is determined, the parties need to ensure that certain adjustments are considered.  A business worth $500,000.00 may not automatically require a buyout of $250,000.00.  What if the business has debts of $400,000.00?  The net value of the business may then be only $100,000.00.  

A more complex adjustment is for anticipated capital gains tax.  If a business has been largely depreciated, upon the sale (other than a sale to a spouse as part of a divorce) the sale will trigger capital gains tax on the business.  This can be up to 20% of the purchase price (and subject to change as tax laws seem to do from time to time).  A business worth $500,000.00 could have a built in $100,000.00 of capital gains tax that would need to be considered and adjusted as appropriate.  This is more complex as there is uncertainty as to when the business would actually sell, and what the future capital gains tax would be. 

If you are involved in a divorce case involving simple or complex asset and debt 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.

HAPPY ANNIVERSARY DAVIS MILES MCGUIRE GARDNER

Wednesday, May 23rd, 2012

 A customer is the most important visitor on our premises; he is not dependent on us. We are dependent on him. He is not an interruption in our work. He is the purpose of it. He is not an outsider in our business. He is part of it. We are not doing him a favor by serving him. He is doing us a favor by giving us an opportunity to do so. Mahatma Gandhi 

This June marks our one-year anniversary of merging two strong law firms, Davis Miles and McGuire Gardner.

Choosing to merge was not a difficult decision when you consider the benefits our clients now have available to them. The objective was and is to provide a convenient spectrum of legal services while maintaining our high standards.

Davis Miles McGuire Gardner now has over 50 attorneys in 27 practices including, Arbitration, Bankruptcy, Commercial Collections Corporate/LLC, Criminal & DUI, Estate Planning, Family Law, Immigration, Intellectual Property, Litigation, Mergers & Acquisitions, Real Estate, Tax Law, Trusts & Estates/Planning, and more.

A vital business practice is monitoring and measuring our success and recognizing what areas we need to improve.  At Davis Miles McGuire Gardner we are pleased that our commitment to professional standards of conduct was recognized by Martindale-Hubbell’s who awarded us the highest ratings.  Another litmus test is other firms and peers. In a peer review we ranked at the highest level.

As a result of our continued efforts to meet and surpass our clients expectations, DAVIS MILES MCGUIRE GARDNER continues to serve as the provider law firm for LegalShield (PrePaid Legal). Legal Shield continues to provide outstanding legal counsel to their growing clientele in New Mexico and Arizona.

The merger of these two firms is only part of the process in creating an all-encompassing firm for our clients and their needs. We will continue to seek out the best attorneys who are equally dedicated to serving our clients with integrity, consideration and respect. 

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.

Arizona Attorney Discusses Jurisdiction Issues in Custody Cases

Thursday, April 21st, 2011

Under Arizona law, Arizona courts typically have jurisdiction over new divorce, custody, paternity, and other cases involving children so long as the child has resided in the state of Arizona for the 6 months preceding the commencement of the case. Once Arizona obtains jurisdiction, the courts will generally continue to have jurisdiction so long as either parent continues to reside in the state of Arizona.

If both parents have relocated out of the state, a new state may have jurisdiction. Occasionally the parties can consent to jurisdiction in another state. Courts in Arizona or other states can get involved on an emergency basis when necessary, even when that court or state would not have ongoing jurisdiction.

Most states have similar or identical laws regarding jurisdiction over custody issues.

If a case has been filed against you in Arizona, and you do not believe that Arizona has jurisdiction, an attorney with McGuire Gardner, PLLC can file a Motion to Dismiss the case for lack of jurisdiction. If you would like to file a case in Arizona and you are not certain if Arizona has jurisdiction over some or all of the pending issues, you should also speak with one of the family law attorneys with McGuire Gardner, PLLC. To contact an attorney with McGuire Gardner, PLLC to discuss your custody issues, you may call (480) 829-9081 or visit us online at yourarizonadivorcelawyer.com.

East Valley Family Law Lawyer Discusses Division Of Businesses In Divorce

Wednesday, April 6th, 2011

Arizona law requires the equitable division of community property and jointly owned property. Even in cases where the property is the sole and separate property of one spouse, the law in certain instances recognizes that the other spouse may have an equitable interest in the property for any increase in value attributed to the finances or effort of the marital community during the marriage. Generally, equitable division requires an equal division, though there are certain exceptions where an unequal division may be most equitable or fair.

In many divorce or legal separation cases, one or both parties own a business, medical practice, or other professional practice. Generally these businesses or practices were started and built during the marriage, though in some cases the business was started prior to the marriage and has increased in value during the marriage.

In each such case, both spouses have a legal and/or equitable interest in the business, and the value of the business must be equitably divided as part of the divorce case. Often, the business will need to be valuated or appraised. There are many issues that arise including the type of appraisal, the date of the appraisal, whether the appraisal includes the goodwill value of the business or only the tangible assets, etc.

These are complex cases, in which an experienced and knowledgeable attorney is imperative. If you are contemplating a divorce, or are already involved in a divorce, and you would like to speak with an attorney who has handled many complex divorce cases involving the division of businesses, please call McGuire Gardner today for a free initial telephonic consultation. Call us at (480) 829-9081, or visit us at YourArizonaDivorceLawyer.com.