March 1st, 2013

Arizona Divorce Lawyer Discusses What You Need To Know About Child Support Even (Especially) After Your Divorce or Custody Case Has Ended

Submitted by Attorney Douglas C. Gardner

Even after a divorce (or a custody case in which the parties were never married) has concluded, both parties need to know certain basics about child support.  Failure to understand these can result in substantial financial harm to a person, and serious injustices can occur when the law is applied rigidly.

    1. Unpaid Child Support:  Pursuant to A.R.S. § 25-503(J), unpaid child support may not be collectable unless court  papers are filed within ten years after your youngest child is emancipated.  Once a final judgment for unpaid child support has been obtained, there is no further need to  renew the judgment.  However, failure to obtain a judgment for unpaid child support within ten years may result in forfeiture of claims for unpaid child support.


While this has been greatly expanded in recent years to assist the recipient in collecting child support, a person who sits on their rights may not be able to come in many years later and seek to collect monies that have never been pursued legally.

    1. Modification of Child Support:  The amount of child support can be modified if there is a “substantial and continuing change in circumstances.”  The amount of child support is determined by the Arizona Child Support Guidelines, which is currently part of the Arizona Revised Statute Section 25-320.  Those guidelines are modified from time to time.


If incomes have changed, if insurance premiums have changed, if day care costs have changed, if additional children have been born or adopted, or if other financial issues related to the calculation of child support have occurred, you should speak with an attorney to see if this would result in a favorable change to your child support situation

    1. Termination of Child Support:  The obligation to pay child support for a child ends when the child reaches 18 (or when the  child is no longer attending high school, if the 18th birthday  comes before high school graduation).        Support for disabled children can go beyond those dates.


Keep in mind, however, that this references the “obligation.”  However, unless this is the last child, there is no automatic change.  A person wishing to reduce child support obligations for the emancipation of an older child will still need to request a modification for the remaining younger emancipated children. More on this below.


Also, if you believe your child is disabled to the point of not being able to provide for himself or herself, you should promptly contact an attorney to discuss obtaining an order that would continue child support beyond emancipation.

    1. Child Support Arrearages:  The law requires that if at a hearing to collect one month or more of child support arrearages, it  appears the payor is licensed or certified in an occupation or  profession or holds certain other State of Arizona business licenses or certificates, the matter will be referred to the licensing board, who may suspend the person’s license or put that license on probation.


If you are behind on your child support, contact an attorney to help you get this structured on a specific arrearage repayment plan.  If you are the recipient of a large unpaid child support, contact an attorney to assist you with getting the arrearage caught up and paid.

    1. Exchange of Information:  You are required to exchange certain information regarding child support every two years.

The law in Arizona requires the parties to exchange financial information every two years.  This allows each party to address whether they should request any update or revision of child support.

    1. Increase or decrease of child support:  There is no automatic increase in child support as a child reaches age 12, and no automatic decrease in child support as a child reaches 18 and is no longer attending high school, if support is still owed for another child.  But the amount can be modified at the time using procedures described in the Child Support Guidelines.


If you want to change child support, contact an attorney to assist you in getting the process started right away.

One of the greatest legal injustices that occurs often in family law cases occurs when parties have an “agreement” but not a court order to change child support.  You must understand that child support can only be changed by a court order.  When parties are in agreement, the Court will often sign the order without a trial or with a very abbreviated hearing to confirm the terms of the agreement.  However, without a court order, child support cannot really be changed.

Imagine the case in which in a divorce, Father receives the primary residential parent status, and Mother is ordered to pay $500.00 per month in child support.  One year later, the parties agree to have the child live instead with Mother, and “agree” to have no child support.  10 years later, the child is now turning 18, and Father goes back to Court and asks to have the 10 years of child support arrearages enforced.  The Court would have no choice but to enforce the only child support that was ever entered, which was the $500.00 child support order from the divorce.  As no child support was paid for 10 years, Mother now owes 120 months of $500.00 per month, or $60,000.00 plus a substantial amount of interest.  Do not let this happen to you.  If you have an “agreement” that is different than the actual court ordered child support amount, call an attorney immediately to try and get this resolved and corrected.

If you are involved in a divorce, legal separation, or annulment case or other case involving children, parenting time and legal decision making issues, and if you have determined that you need experienced legal representation, please call 800-899-2730 and ask to speak with Douglas C. Gardner, or visit our website at


February 1st, 2013

February 1, 2013

Arizona Divorce Lawyer Discusses Basic Rules and Various Exceptions When Dividing Assets and Debts

Submitted by Attorney Douglas C. Gardner

Having been involved in hundreds, if not thousands of divorce cases, what was once very confusing now seems to make sense, until I try to explain it to younger attorneys or my clients.  Then, I remember and realize just how confusing the law in Arizona can be with regard to community property and community debt issues.  Clearly, it is to your benefit to find and hire an experienced and knowledgeable attorney.

For example, the general rule is that property acquired during the marriage is presumed to be community property and not the sole and separate property of either spouse.  However, there is another general rule with real estate. The way real estate is titled is presumed to be the intent of the parties.  In cases where the real estate was purchased during the marriage, but titled in the name of only one spouse, the other spouse may not have any ownership interest in the property, but can in many cases raise an “equitable” claim that a part of the increase in value of the property during the marriage should be shared between the parties.

Another scenario that often arises pertains to inheritance or gifts from family members.   While the general statutory rule is that property acquired during the marriage is community property, the statute specifically excepts from this rule gifts or inheritances, which remain the sole and separate property of the spouse receiving the gift or inheritance.  However, the further exception is that once a gift or inheritance has been commingled (for example placed into the same account as the paychecks of the parties), then it is presumed to be a gift to the community.  There are, however, certain cases when if a party can prove by “tracing” the funds that the inheritance was not spent, that it can retain its separate property, though some judges have stated that this is like trying to unscramble eggs.

Debts bring up similar issues.  Debts that existed prior to the marriage remain the sole and separate property of that spouse.  However, when the couple continues to use a credit card that predates the marriage, and much of the debt on the credit card account is from prior to the marriage and the rest from after the marriage, these same questions as to commingling can arise, and the question is whether the payments made during the marriage were intended to pay the oldest debts (those pre-dating the marriage) or the more recent debts incurred during the marriage.

Retirement accounts similarly raise questions.  In cases where a retirement account (pension, 401(k), or other retirement accounts) were started at the time of employment prior to the marriage, but then during the marriage money continued to be contributed to the account or pension benefits continued to vest, both spouses are entitled to an equal share of those benefits which can be shown were from during the marriage.  This is generally done formulaically as a percentage of the time during which the parties were married compared to the total time during which contributions were made or vesting occurred.

If you are involved in a divorce, legal separation, or annulment case involving various assets and debts, or if you have determined that you need experienced legal representation, please call 800-899-2730 and ask to speak with Douglas C. Gardner, or visit our website at

Finding The Right Attorney: Finding an Appropriately Balanced Attorney

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

Last Month For Custody

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

Arizona’s New Family Law Changes

December 1st, 2012


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


Divorce Preparation- Part 2

October 22nd, 2012

Preparing for a Divorce Trial Part 2; Presenting Relevant Evidence.

By Attorney Karl Scholes

Preparing for a Divorce Trial Part 2; Presenting Relevant Evidence. 

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. Parties to a divorce (usually those who have opted to not hire an attorney) will commonly make the mistake of using up what little court time – and judicial patience – allotted to them by presenting the Court with irrelevant testimony. 

In Arizona, there are certain findings that the court must make to enter a decree of dissolution of marriage. Those findings are found in A.R.S. § 25-312, and are as follows: 

  1. That one of the parties, at the time the action was commenced, was domiciled in this state, or was stationed in this state while a member of the armed services, and that in either case the domicile or military presence has been maintained for ninety days prior to filing the petition for dissolution of marriage. 
  2. The conciliation provisions of section 25-381.09 and the provisions of article 5 of this chapter either do not apply or have been met. 
  3. The marriage is irretrievably broken or, if the marriage is a covenant marriage, any of the grounds prescribed in section 25-903. 
  4. To the extent it has jurisdiction to do so, the court has considered, approved and made provision for child custody, the support of any natural or adopted child common to the parties of the marriage entitled to support, the maintenance of either spouse and the disposition of property. 

Noticeably absent from the above factors is anything to do with marital infidelity, imbecility of newly acquired significant others, or annoying habits of the other party. If it is not mentioned in the findings above, then the court does not want to hear about it. 

Now, the issues of 1.) child custody; 2.) the support of any natural or adopted child common to the parties of the marriage entitled to support, 3.) the maintenance of either spouse, and 4.) the disposition of property involve a lot of relevant testimony. The relevant factors for each of these issues are covered by statute, and are the topic for another time. 

However, none of the pertinent statutes include factors that have anything to do with marital infidelity, imbecility of newly acquired significant others, or annoying habits of the other party. These are never mentioned. 

Not even once.

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 or

Arizona Dependency Deductions

October 12th, 2012


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

Documentary Evidence

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 or


September 10th, 2012


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

Increasing Prevalence of Half-Time Schedules

September 3rd, 2012

By Attorney Kirk Smith

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

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

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

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

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

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

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