Archive for July, 2011

Tempe Arizona Attorney Discusses Prenuptial Agreements

Tuesday, July 19th, 2011

As a family law attorney, primarily involved in complex and high end divorces, it is refreshing to occasionally deal with the potential problems on the front end, when everybody is getting along fine, rather than at the back end when everybody is at everybody else’s throats. Negotiating a Prenuptial Agreement or Antenuptial Agreement and getting everything in writing before a marriage, allows the parties to take care of potential issues in an amicable and friendly fashion, and certainly costs much less than a contested divorce.

Arizona statute provides a legal framework to be used in the event of a divorce, including laws for spousal support or alimony and for the division of assets and debts acquired during the marriage. Without a prenuptial agreement, Arizona law is applied. With a prenuptial agreement, the parties contractually agree that rather than applying Arizona law for general divorces, the specific contract between the parties will apply.

Not everyone needs a prenuptial agreement. Arizona statutory law provides a framework that for traditional marriages (two young people with little or no assets and no other children from prior to the marriage) is usually fair and equitable, and without a prenuptial agreement, Arizona law is applied. There are some risks, as the law can change at any time, whereas a prenuptial agreement can lock in a specific outcome or resolution. Marriages in which either or both parties have other children from prior to the marriage, and marriages in which one or both parties have significant assets, however, may involve more detailed issues which make Arizona’s general laws unfair or inequitable or potentially harmful to one or both parties.

Many people experience sticker shock at the cost of a good prenuptial agreement, as it can cost several thousand dollars. In order to make sure the prenuptial agreement is enforced and upheld by the court in case it is eventually needed, it is important that a prenuptial agreement has been prepared and negotiated with both parties on equal footing, and that neither party was forced into the agreement at the last minute or forced to sign the agreement without a full understanding of the legal significance of entering into such an agreement.

If you or anyone close to you is considering a marriage, and there are issues which may require the use of a prenuptial agreement for protection and to ensure fairness and equity, please call 800-899-2730 and ask to speak with Douglas C. Gardner, or visit our website at https://yourarizonadivorcelawyer.com/.

Arizona Court Of Appeals Rules On Child Support for Adult Children

Tuesday, July 12th, 2011

In its June 9, 2011 ruling in Gibbs v. Gibbs (2 CA-CV 2010-0120 & 2 CA-CV 2010-0172 (consolidated)), the Arizona Court of Appeals ruled on a case regarding child support for an adult child with a severe mental handicap. The full opinion is presently posted at http://www.apltwo.ct.state.az.us/Decisions/CV20100120%20Opinion.pdf.

In this case, the child support had ended when the child reached age 22, and the issue did not come back to court for several years. The father, in an effort not to pay child support, argued that it was now too late to bring this case back to court because the mother did not ask for support as the child reached age 22.

The Court determined that the issue regarding the mental handicap of the child was not previously determined, and therefore the Court had jurisdiction to enter new child support orders despite the child being well over 18 and despite the child support ending when the child turned 22 by agreement of the parties.

The relevant Arizona Statute, Section 25-320(E) provides:

Even if a child is over the age of majority when a petition is filed or at the time of the final decree, the court may order support to continue past the age of majority if all of the following are true:

1. The court has considered the factors prescribed in subsection D of this section.

2. The child is severely mentally or physically disabled as demonstrated by the fact that the child is unable to live independently and be self-supporting.

3. The child’s disability began before the child reached the age of majority.

In this case, the child already had the disability when she reached age 18, but the full effect of the disability was not known at that time. Had the child been fully healthy at age 18, and then lost mental capacity, the Court would not have jurisdiction to re-open the child support matter once the child was emancipated.

If you are looking for an attorney to assist you with a simple or difficult child support issue or other family law matters, please call 800-899-2730 and ask to speak with Douglas C. Gardner, or visit our website at https://yourarizonadivorcelawyer.com/.