Posts Tagged ‘Tempe’

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.

 

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.

East Valley Family Law Lawyer Discusses Division Of Businesses In Divorce

Wednesday, April 6th, 2011

Arizona law requires the equitable division of community property and jointly owned property. Even in cases where the property is the sole and separate property of one spouse, the law in certain instances recognizes that the other spouse may have an equitable interest in the property for any increase in value attributed to the finances or effort of the marital community during the marriage. Generally, equitable division requires an equal division, though there are certain exceptions where an unequal division may be most equitable or fair.

In many divorce or legal separation cases, one or both parties own a business, medical practice, or other professional practice. Generally these businesses or practices were started and built during the marriage, though in some cases the business was started prior to the marriage and has increased in value during the marriage.

In each such case, both spouses have a legal and/or equitable interest in the business, and the value of the business must be equitably divided as part of the divorce case. Often, the business will need to be valuated or appraised. There are many issues that arise including the type of appraisal, the date of the appraisal, whether the appraisal includes the goodwill value of the business or only the tangible assets, etc.

These are complex cases, in which an experienced and knowledgeable attorney is imperative. If you are contemplating a divorce, or are already involved in a divorce, and you would like to speak with an attorney who has handled many complex divorce cases involving the division of businesses, please call McGuire Gardner today for a free initial telephonic consultation. Call us at (480) 829-9081, or visit us at YourArizonaDivorceLawyer.com.

Arizona Lawyer Discusses Effect of Wage Garnishment By Creditors When Child Support or Spousal Maintenance (Alimony) Is Paid

Wednesday, March 16th, 2011

In all dissolutions of marriage entered after January 1, 1988, and in any modifications of orders entered after that date, where child support payments are ordered, a wage assignment is automatically entered in favor of the person or agency entitled to receive the support payments. A.R.S. § 25-504(A).

In a proceeding in which spousal maintenance is ordered, the court may enter a wage assignment on either party’s request, but the wage assignment is not mandatory. Id.

Wage assignments issued pursuant to A.R.S. § 25-504, for either child support or spousal maintenance, have priority over all other attachments, executions, garnishments or assignments. A.R.S. §§ 12-1598.14(B) and 25-504(P).

Where a judgment debtor’s earnings become subject to more than one writ of garnishment, and of spousal and child support priority a judgment creditor recovers no nonexempt earnings for two consecutive paydays, the lien on earnings of such judgment creditor is invalid and of no force and effect, and the garnishee shall notify the judgment creditor accordingly. A.R.S. § 12-1598.14(C).

Garnishment limits for creditors (except for child support or spousal support) is up to 25% of a person’s gross wages. For child support and spousal support, the limit is up to 50% of a person’s gross wages.

In some cases, it may be advantageous to ensure that child support or spousal support is being paid by a wage assignment. Because of the priority for child support and spousal support wage garnishments, your income deduction will be going to support your children or ex spouse, which is generally preferable to the money going to a credit card company or other debt collector.

If you would like to discuss child support, spousal support, or other family law issues with an attorney, please call McGuire Gardner, PLLC at (800) 899-2730 or visit our website at YourArizonaDivorceLawyer.com.

Arizona Attorney Discusses Child Support and Spousal Maintenance Issues in Bankruptcy

Monday, March 7th, 2011

As a lawyer with many cases in Phoenix and Mesa, Arizona and throughout the state, I often encounter family law cases in which a bankruptcy has been or will be filed. Both parties need to understand what will happen with child support and spousal maintenance in a bankruptcy case.

First, from the point of view of the debtor or person filing bankruptcy in which case the debtor is obligated to pay child support or spousal support: bankruptcy will not discharge an obligation to pay child support or spousal maintenance. Bankruptcy can, in certain cases, discharge or eliminate other types of debts to a spouse or former spouse. However, child support and spousal support will need to be modified or terminated through the family law courts. If you have other debts to a spouse or former spouse which you want to eliminate in bankruptcy, you will need to hire an attorney that can answer your questions and help you through this difficult process. 

Second, still from the point of view of the debtor or person filing bankruptcy, but this time the debtor is receiving child support or spousal support: Your right to collect child support and spousal maintenance is not an asset that can be taken from you in bankruptcy. The income that you receive from actual payment of support will affect your bankruptcy, as more income may make it difficult to qualify to file for certain types of bankruptcy. You will need to ensure that your bankruptcy attorney is aware of any income you are receiving. You should also make sure that your divorce or family law attorney is aware of the status of any bankruptcy or of the potential that you will file for bankruptcy.

Third, from the point of view of the spouse or ex-spouse of a debtor, in which case the debtor is obligated to pay child support or spousal support to that spouse or ex-spouse: there is little to worry about a spouse or ex-spouse filing for bankruptcy as it pertains to child support and spousal support. These debts are not dischargeable in bankruptcy, meaning the debts will continue to be owed even after your spouse or ex-spouse completes bankruptcy. It may even be beneficial, as your spouse or ex-spouse will eliminate other debts and have more funds available to meet his or her obligations to you. Bankruptcy also gives child support and spousal maintenance a “priority,” meaning they will get paid before most other debts will get paid. However, if your spouse or ex-spouse owes you other money for property issues, or is obligated to pay debts that your name is also on, you will need to contact a bankruptcy attorney that is also familiar with divorce and family law issues to ensure that your rights are protected.

Finally, from the point of view of the spouse or ex-spouse of a debtor, and the spouse or ex-spouse is obligated to pay child support or spousal maintenance to the debtor: your spouse or ex-spouse’s decision to file for bankruptcy does not eliminate your ongoing obligation to pay support. The payments will continue to go to your spouse or ex-spouse, and will not be taken by the bankruptcy court or the bankruptcy trustee. If you need to modify or reduce your child support or spousal support, you will need to contact a family law attorney to assist you.

If you have any questions regarding bankruptcy or family law issues, please contact McGuire Gardner, PLLC by calling (480) 829-9081, or check us out on the web at www.mcguiregardner.com.

Mesa/Gilbert Arizona Attorney Discusses Parental Alienation Syndrome

Thursday, January 27th, 2011

I recently stumbled across an old law review article pertaining to recognizing Parental Alienation Syndrome (http://www.fact.on.ca/Info/pas/walsh99.htm). While the article is 10 years old, and out of Florida, the issues remain present in many contested custody issues.

The article points out that the typical parental alienation includes four criteria, 1) one parent begins working to block the child’s access to the other parent; 2) Often there are allegations of abuse; 3) the child’s relationship with the other parent suddenly begins to deteriorate; and 4) the child is caused to feel fear, often fear of the alienating parent’s reaction if the child shows affection towards the other parent.

If you are involved in a high conflict custody case, and would like to speak with an attorney about Parental Alienation Syndrome or other issues in your case, please contact our attorneys at (480) 829-9081 or

Gilbert Arizona Attorney Answers Common Questions Regarding Termination of Child Support

Wednesday, January 19th, 2011

As a family law attorney in Arizona, I frequently encounter cases involving the question of when child support ends. The answer is found in Arizona statute, which states:

25-503. Order for support; methods of payment; modification; termination; statute of limitations; judgment on arrearages; notice; security

. . .

O. For the purposes of this chapter, a child is emancipated:

1. On the date of the child’s marriage.

2. On the child’s eighteenth birthday.

3. When the child is adopted.

4. When the child dies.

5. On the termination of the support obligation if support is extended beyond the age of majority pursuant to section 25-501, subsection A or section 25-320, subsections E and F.

25-501. Duties of support; exemption

A. Except as provided in subsection F of this section, every person has the duty to provide all reasonable support for that person’s natural and adopted minor, unemancipated children, regardless of the presence or residence of the child in this state. In the case of mentally or physically disabled children, if the court, after considering the factors set forth in section 25-320, subsection D, deems it appropriate, the court may order support to continue past the age of majority. If a child reaches the age of majority while the child is attending high school or a certified high school equivalency program, support shall continue to be provided while the child is actually attending high school or the equivalency program but only until the child reaches nineteen years of age unless the court enters an order pursuant to section 25-320, subsection E.

25-320. Child support; factors; methods of payment; additional enforcement provisions; definitions

. . .

E. 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.

F. If a child reaches the age of majority while the child is attending high school or a certified high school equivalency program, support shall continue to be provided during the period in which the child is actually attending high school or the equivalency program but only until the child reaches nineteen years of age unless the court enters an order pursuant to subsection E of this section. Notwithstanding any other law, a parent paying support for a child over the age of majority pursuant to this section is entitled to obtain all records related to the attendance of the child in the high school or equivalency program.

If there is more than one child, child support does not end or automatically modify until the last child is emancipated. If a change in child support becomes necessary prior to the last child being emancipated, the parties must petition the Court for a modification of the child support order. Child support automatically ends then, when any of the following occur: 1) the child is married; 2) the child turns 18 (and graduates from high school); 3) the child turns 19 even if still in high school; 4) the child is adopted 5) the child dies. The Court may continue beyond 18 or 19 if the child has special needs, though this requires a court order and is not automatic.

Even if child support has ended based upon the above criteria, you may still need the Court to enter an order to terminate an order of assignment or wage assignment or garnishment for child support.

If you need help with establishing, modifying or terminating child support, or have other family law questions, please contact a family law attorney at McGuire Gardner by calling 800 899 2730.

Arizona Family Law Attorney Discusses High Conflict Custody Cases

Thursday, January 13th, 2011

When recently in Court, one of the Judges commented on the high conflict in a case I am currently working on. To the parties, he let them know that most parents finalize their divorce and never need to return to Court. Of those that do need to return to Court, most of them only need to return a single time. However, there are a small minority of cases, known as high conflict cases, where the parents do not learn to communicate and work together to resolve difficulties that inevitably arise while raising children.

Though divorced, parents must still continue to work together as business partners, in the business of raising children. While the emotional involvement of the past may be completely gone, both parents must work together to ensure the best interest of the children. This can be difficult when one parent or both parents are shortsighted, self-centered, or unwilling to compromise and negotiate. Such cases often return to Court every few years for adjustments to the prior orders.

More often, if adjustments are needed, an experienced family law attorney can assist you in drawing up amendments or stipulations to modify prior orders based upon agreements reached between the parties. Proceeding without significant involvement of the Court reduces the cost and the emotional toll of high conflict cases. If you need to make adjustments or changes to your parenting orders or parenting agreements, and whether or not your case is high conflict or an agreement has already been reached but needs to be properly documented in an appropriate legal format, please call the family law attorneys at McGuire Gardner, PLLC at 800 899 2730 for your free initial telephonic consultation.

For more information, please visit our websites:

www.mcguiregardner.com or

yourarizonadivorcelawyer.com

ARIZONA FAMILY LAW ATTORNEY DISCUSSES RETROACTIVE CHILD SUPPORT

Monday, January 3rd, 2011

In Arizona, either party may ask the Court to change child support when there has been a significant and continuing change in the factors for calculating child support. This can be the increase or reduction of the income of either party, a change in medical insurance costs or availability, an increase or decrease in day care or child care costs, or the emancipation of one or more children.

Child support does not automatically change, and must be changed through the court process. A change can only become effective on the first day of the month following the commencement of a case to modify child support and service upon the other party.

If you need assistance modifying child support in your case, or if the other party has asked the Court to modify child support and you do not agree with the requested change, please feel free to contact the attorneys at McGuire Gardner for a free initial telephone consultation to discuss your case, by calling (800) 899-2730.

TEMPE/EAST VALLEY ATTORNEY DISCUSSES ATTORNEYS FEES

Friday, July 16th, 2010

TEMPE/EAST VALLEY ATTORNEY DISCUSSES ATTORNEYS FEES

The Court in Family Law and Divorce cases has the ability to order one party to pay all or some portion of the other party’s attorneys’ fees and costs.  The Court will look at two issues in determining if such an order is appropriate.

First, the Court will look at the income and financial status of each party.  The Court has the discretion to order the party with greater financial assets and income to pay all or some portion of the other party’s attorneys fees.

Second, the Court will consider the reasonableness of the positions taken by each party.

While the Court may make and award of attorneys fees for either or both issues, the Court must consider both issues before making an award of attorneys fees.

For more information, or to contact an Arizona divorce lawyer, please check out our website at www.yourarizondivorcelawyer.com.