Posts Tagged ‘family law’

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.

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.

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.

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.  

 

 

A Financial Benefit to Paying Child Support

Monday, July 2nd, 2012

Submitted by Attorney Kirk Smith

 

There is a general discontent among those who must pay child support. The consensus among them is not that they are unwilling to financially support their children; but rather, that they seemingly overcompensate the primary physical custodian for the expenses of the children, as these expenses fall appreciably lower than the child support they owe. Notwithstanding this perceived inequity, there is some consultation for child support obligors, as their tax liabilities generally decrease due to paying child support.

 

When child support is calculated each parent will be obligated to pay a specific percentage of the total amount calculated. How this plays out typically is that the primary physical custodian will pay nothing directly to the non-custodial parent, but the non-custodial parent will pay a specified sum each month to the primary physical custodian. For the purpose of this discussion do not get caught up in the fact that the primary physical custodian typically pays nothing directly to the non-custodial parent despite being allocated a percentage of the child support obligation.

 

An example of how these percentages might be allocated is; the primary physical custodian would be obligated to pay 20% of the total amount of child support calculated and the non-custodial parent would be obligated to pay 80% of the total amount of the child support calculated.

 

The family law courts will use these percentages under Number 27 of the Appendix of Arizona Revised Statutes 25-320, to determine the allocation between the parties of the dependent tax benefit, for the years following the divorce or separation.

 

Number 27 of the Appendix of Arizona Revised Statutes 25-320 states;

 

All the federal and state tax exemptions applicable to the minor children shall be allocated between the parents as they agree, or, in the absence of their agreement, in a manner that allows each parent to claim allowable federal dependency exemptions proportionate to adjusted gross income…To implement this provision, the proportionate share of the combined adjusted gross income of both parents is rounded to the nearest fraction with a denominator no larger than 5 (i.e. 1/2, 1/3, 2/3, 1/4, 3/4, 1/5, 2/5, 3/5, 4/5).

 

Applying this statute to the above example, and assuming that the parties have only 1 child, the non-custodial parent would receive the dependent tax benefit 4 out of the next 5 years. Looking at the years following the divorce or separation, 80% of 5 years is four years. The percentage then used to determine each parent’s child support obligation is also used to determine who receives the dependent tax benefit each year.

 

Figuring out who receives the dependent tax benefit can become more complicated with multiple children between the parties, however, the aforementioned principles still apply. Child support obligors then can take a measure of solace that even though their finances will diminish due to their child support obligation; their finances typically increase when it comes to receiving their yearend tax refund. 

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 www.yourarizonadivorcelawyer.com. or www.davismiles.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.

 
 
 
 
 
 

 

 

 

 

 

 

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.