Archive for April, 2009

Flagstaff Divorce Attorney Discusses Orders of Protection in Family Law Cases:

Friday, April 24th, 2009

Many of my divorce or family law clients have questions regarding obtaining an Order of Protection in their case.  Because each case is unique, you should discuss an Order of Protection with an attorney before proceeding.


Orders of Protection are intended to protect victims of domestic violence.  To obtain an order of protection, the Court must find that domestic violence has or is likely to occur.  Domestic violence includes more than just physical violence, such as verbal abuse, threatening behavior, and intimidation.


Because of the very nature of a divorce, with escalated conflict and volatile emotions on both sides, many family law cases also involve issues of an Order of Protection.  While an Order of Protection can be helpful in some cases, they are often overused and misused.  Even in cases where an Order of Protection is justified, there may be reasons to proceed without the Order of Protection.  Additionally, there are other options available through temporary orders in the underlying family law matter, which are much more flexible and can be specifically tailored to fit your case much easier than an Order of Protection.


Advantages to obtaining an Order of Protection include:  obtaining a prompt order giving one party exclusive use of a house; obtaining a prompt order precluding one parent from having parenting time (visitation) with a child; and precluding one party from visiting the other party’s work, school, or other frequented locations. 


Disadvantages to obtaining an Order of Protection include:  escalated attorney’s fees and court time; escalated emotions leading to retaliatory behavior in the family law matter; and requirement of third party involvement to exchange children, personal items, and information.  Finally, putting it bluntly, an Order of Protection is just a piece of paper, and it will not stop a bullet.  Even with an Order of Protection you must take safety precautions.


If you are considering obtaining an Order of Protection, you should speak with a family law attorney prior to proceeding.  If you spouse or significant other has obtained an Order of Protection, you legally have the option to request one hearing to challenge the Order of Protection.  Because you are only able to challenge an Order of Protection one time, you should consult with an attorney and involve your attorney in your case.


For more information, please visit our WEBSITE.


Wednesday, April 22nd, 2009

  Under Arizona law, a marriage may be ended through a dissolution (divorce) or an annulment.  Another alternative occasionally used is a legal separation. 


            Each of these methods have much in common.  For example, in a divorce, annulment, or legal separation, the Judge must equitably divide any community property and community debts.  The Judge must make a determination of any custody and child support issues.  In a divorce or a legal separation (but not in an annulment), the court must make a determination on the issue of spousal maintenance.


            To obtain an annulment, a party must demonstrate that factors exist that renders the marriage void.  This may be demonstrated by showing that one of the parties was already married.  This is also demonstrated by showing significant fraud or misrepresentation prior to the marriage.  Such a showing of fault is not necessary in a divorce or legal separation.  Arizona is a no-fault divorce state, meaning that neither side must prove any specific wrong-doing by the other party to proceed with a divorce.  To obtain a divorce, all that must be shown is that one or more of the spouses believes that the marriage is irretrievably broken.  For a legal separation, a party  may demonstrate that the marriage is irretrievably broken, or simply that the parties desire to live separate and apart.


            Annulments are often sought after a very short term marriage, or when it is later discovered that one of the parties was still married when the parties were married.  One strategic benefit for seeking an annulment is when one party wishes to avoid paying spousal maintenance (alimony), as the Court cannot do so in an annulment case.  With an annulment, the Court retroactively eliminates the marriage, as if it never occurred.


            Legal separations are typically sought for religious or financial reasons.  Some individuals have religious beliefs against a divorce, and therefore prefer to become financially separated rather than divorced.  Because they are not divorced, neither party can remarry.  There may be financial advantages for a legal separation also.  For example, legally separated couples may still file taxes jointly, and may still include the spouse on medical insurance. 


            Ultimately, each case must be individually analyzed by an Arizona Attorney experienced in divorce and family law.  While most cases proceed with a standard dissolution (divorce), there may be some advantages to exploring these other legal options.

For more information, please visit our Website.


Thursday, April 16th, 2009

I am often asked in divorce consultations if an attorney is really needed if the parties believe that their divorce case or legal separation case will be uncontested. Generally, it is advantageous to both parties to have an attorney involved even in uncontested cases. Furthermore, many cases that initially appear to be uncontested still require extensive negotiations on the specific agreement detail, and in a small percentage of cases, the parties are unable to maintain the agreement as one or both parties back out for an assortment of reasons.

Because of ethics issues and the conflict of interest, one attorney cannot represent both husband and wife in a case, even if it is uncontested. However, having at least one attorney involved from the beginning of the case, representing either party, provides the benefit to both parties of having the appropriate legal requirements in the pleadings filed with the court to commence the case.

Generally, uncontested divorces are resolved by having both parties and any attorneys involved sign settlement documents. These settlement documents would include a Consent Decree in all cases, and in certain cases would include a Stipulated Parenting Plan and/or a Property Settlement Agreement. Having an attorney involved in the drafting of these settlement documents ensures that the documents are properly prepared, contain the necessary legal requirements, and facilitates placing the agreement of the parties into the proper legal wording. Furthermore, experienced divorce attorneys have the benefit of hundreds of prior divorces and understand various issues that are likely to go wrong. With this knowledge, the settlement documents can be prepared in such a way to address various contingencies and potential future problems, thus avoiding future litigation between the parties.

Finally, an attorney involved in your divorce case will provide you with the knowledge of maneuvering through the court system, and can often facilitate an uncontested divorce without either party being required to appear in court at any time.

If your spouse has hired an attorney, and that attorney is preparing the pleadings and settlement documents, that attorney should inform you that he cannot represent you because he/she represents your spouse. That attorney should inform you that you have the right to hire your own attorney, and that you may take any documents to your own attorney for review prior to signing any settlement documents. Because experienced divorce attorneys have advanced legal training, years of experience, hundreds of divorce and family law cases behind them, it would be wise to hire your own attorney to represent you in the case. At a minimum you should have your own attorney review any settlement documents with you prior to signing them. Your attorney can point out potential pitfalls, discuss with you likely outcomes if your case were to proceed to trial, ensure that you understand your legal rights, and discuss with you how close the agreed upon provisions approximate what a court would likely decide if your case went to trial. Having this knowledge provides you with the assurances that the settlement documents are fair and equitable and in your children’s best interest before you sign them, or provides you an out if these settlement documents are not as fair and equitable as you previously believed.

If you are faced with a divorce, legal separation, or custody case, please call me today for a free initial telephone consultation to discuss how hiring an attorney will benefit you in your family law case.

For more information, please visit our WEBSITE.


Monday, April 6th, 2009

 With increasing frequency, our clients must decide if they should pursue a bankruptcy before or after a divorce case.  In making this determination, there are several areas that you should discuss with your attorney.


            In relatively amicable cases, there are several advantages of completing the bankruptcy prior to filing for a dissolution.  Most bankruptcy attorneys will charge the same price to a single person filing a bankruptcy as to a married couple filing a bankruptcy.  Additionally, the couple would only pay a single filing fee to the court.  If the bankruptcy is completed prior to the dissolution proceeding, the elimination of the majority of the community debt (and possible reduction of assets) significantly simplifies the equitable division of assets and debts.


            In many cases, however, the urgency of the family law matter or the level of acrimony between the parties makes it unrealistic to ask the couple headed for a dissolution of marriage to work together gathering the necessary information to file a bankruptcy, while putting the dissolution of marriage on hold for several months.  The same issues that arise in dissolutions regarding the hoarding of documents and information or the hiding of assets and income may arise in the bankruptcy setting.  Lack of information or improper information regarding assets, debts, and income will result in the bankruptcy stalling or derailing, the case being dismissed, or the bankruptcy discharge being denied.  In high conflict cases, the family law practitioner may need to counsel the client to proceed first with the dissolution of marriage, with the understanding that the client may need to file for bankruptcy at the conclusion of the family law matter.  


            Occasionally, a party to a pending dissolution will file for bankruptcy, or a party in an ongoing bankruptcy will file for a dissolution of marriage.  The family law practitioner must proceed cautiously when both cases are pending.  Immediately upon filing a bankruptcy, an Automatic Stay is issued under federal bankruptcy law.  Similar to a Preliminary Injunction, the order is automatic and does not require a request to a judge or a judge’s signature to take effect.  The filing of a bankruptcy has the effect of placing all of the filer’s assets and debts into a “bankruptcy estate.” Without getting into the details, bankruptcy’s Automatic Stay prevents any person from commencing or continuing any action that would affect the bankruptcy estate.  This injunction prohibits the Superior Court from entering any temporary or permanent orders allocating assets or debts during the pendency of the bankruptcy, unless the stay is lifted by the bankruptcy court after a request has been filed.  The filing of a bankruptcy during a dissolution of marriage proceeding will therefore require hearings on property issues to be held in abeyance. 


A dissolution proceeding can be filed while a bankruptcy is pending, and the Petition may request the Superior Court to equitably divide community property.  The statutory language establishing the automatic stay 11 U.S.C. § 362 specifically allows for the commencement or continuance of a dissolution or paternity, or the establishment or modification of child support, spousal maintenance, custody and visitation issues.  However, the superior court is temporarily divested of jurisdiction to determine the division of property and debts included in the bankruptcy estate.  The division of assets and debts can only proceed once the automatic stay is lifted, either at the conclusion of the bankruptcy or by order of the bankruptcy court after a request has been filed.


            Tremendous problems can arise when the bankruptcy is filed shortly after the dissolution of marriage.  A party taking a greater part of the marital debts and a larger share of the marital assets may appear to be getting a fair and equitable division of the net assets and debts.  However, if the debts are then discharged in a subsequent bankruptcy, this party has obtained an inequitably larger share of the marital assets.  The inequity is worsened in cases where spousal maintenance is forever waived based upon a perceived distribution of assets and debts.  Furthermore, a payment owed to another party to equalize the division of assets and debts in a dissolution of marriage (“equalization payment”) can be discharged in a Chapter 13 bankruptcy.  When these issues arise, individuals should get a bankruptcy attorney involved immediately to assist in challenging such a scheme in the federal bankruptcy court.


            Ultimately each case must be individually assessed to determine the best timing for a dissolution of marriage and a related bankruptcy.  Please call us at 928-225-2597 to discuss your situation.  You can also visit our Website to find more information on divorce and bankruptcy issues.