Posts Tagged ‘Communication’

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’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.

 

Divorce Preparation- Part 2

Monday, 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 yourarizonadivorcelawyer.com. or www.davismiles.com

Increasing Prevalence of Half-Time Schedules

Monday, 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 yourarizonadivorcelawyer.com. or www.davismiles.com

TEMPE AND MESA ARIZONA DIVORCE AND FAMILY LAW LAWYER DISCUSSES IMPLICATIONS OF FACEBOOK IN FAMILY LAW CASES

Monday, August 27th, 2012

Submitted by Attorney Douglas C. Gardner

When involved in litigation, or even when there is the prospect of litigation, parties should be aware of certain aspects of Facebook, that they may not have ever considered before.

Two competing concepts need to be discussed, and the differences understood.  First, it is beneficial to parties likely to be involved in litigation to not create evidence that may be used against them, and this includes posting to Facebook.  We have all heard many times (hopefully only on T.V.) that we “have the right to remain silent, and that anything we say may be used against us in a court of law.”  Similarly, though not specifically stated when read our Miranda rights, you have the right to not post on Facebook anything that may be incriminating. 

Obviously inappropriate Facebook posts may include any indiscretions, adulterous situations, use of illegal drugs, abuse of alcohol, abuse of the children, etc.  However, even a seemingly harmless post that “I am in Colorado visiting Aunt Jane” may be used as evidence in a contempt case for leaving the state with the children during the pendency of a divorce case.  Be careful what you post.  If you have any hint that you may be involved in a divorce case in the near or even far future, remember that you have the right to remain silent on Facebook also. 

Once a divorce or other family law case has been filed, you cannot now simply close out your Facebook account.  Destroying, hiding, or otherwise disposing of evidence can be a serious crime and result in serious sanctions in your case.  This is often referred to as “spoliation of evidence.”  Once a case has been filed, it is too late to remove problematic posts.  Furthermore, Facebook does not delete your account when you ask to close out your account, as all of your entire Facebook file remains in the computers, and can be subpoenaed if and when needed. 

Even if you are not anticipating a divorce or legal battle, you should always monitor and pay attention to your security settings, limiting who has access to your profile on Facebook. 

If you are involved in a divorce case involving 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.

 

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.

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.

ARIZONA DIVORCE LAWYER: COMMUNICATION ISSUES DURING AND AFTER DIVORCES (FOR THE CHILDREN’S SAKE)

Monday, June 18th, 2012

Submitted by Attorney Douglas Gardner

Tempe Arizona Divorce Attorney Speaks About Communicating With Spouse or Ex-Spouse About The Children

 

Most expensive Arizona divorces become expensive because of poor communication about the children.  Other factors can occasionally cause cases to get expensive, but generally custody issues have a large impact upon the cost of a case.

   

Except in extreme cases, the Court will generally order that the parties share joint legal custody.  Joint legal custody requires that both parents work together to make major medical, educational, and religious decisions.  In both sole custody and joint custody cases, the parties will still be required to have some level of communications regarding the logistics, including exchange times, exchange locations, and holiday scheduling.

 

In many cases, the parties will quickly (or at least eventually) learn to get along in a business-like relationship.  While the emotion and romance are long since gone, the parties should learn to work together at the business of raising their children.  Even in a business-like relationship, in which both parties are seeking to receive a personal advantage, parties can learn that it is mutually advantageous to compromise and to acquiesce to the other parent’s requests, so that at other times the other parent will compromise and acquiesce to future requests needed. 

 

It is important in developing a business-like relationship that the compromise work both ways, and the acquiescence work both ways.  If one parent is constantly a taker, and the other parent constantly acquiescing, this will cause resentment and will eventually result in a breakdown of communications and an unwillingness of one or both parents to compromise. 

 

A good divorce attorney should be able to discuss with you and share with you ways to work on communications, ways to set appropriate boundaries so that you are not taken advantage of, and other methods for “training” your ex-spouse or your soon-to-be-ex-spouse to understand that compromise works both ways. 

 

It is also of vital importance to have a detailed and strongly worded parenting plan in place.  While it is beneficial to both parents to work together and cooperate, and while it would be wonderful if both parents got along so well that the parenting plan was never needed, the fact is the parents are divorced or divorcing, and this indicates that there is a good chance that at least occasionally communications break down.  A solidly written parenting plan or custody order provides a fall back position for times when compromise is not occurring.  The parenting plan should detail the rights and responsibilities as well as the parenting times.  The parenting plan serves as the tie-breaking vote for occasions when no agreement can be reached.  The parent wishing to follow the written parenting plan prevails at that time. 

 

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.