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Family Law

Divorce

Child Custody

Child custody is often thought to refer to the issue of which parent the child or children live with. In actuality though, legal custody relates to which parent or parents make major life decisions about the child, such as medical, educational and religious issues. Legal custody does not affect when each parent spends time with the child or children. The court is obligated to order custody based on the best interest of the child. Many factors must be considered in deciding what is in a child’s best interest, such as who has been the primary caregiver, which parent is more likely to allow the other regular and frequent contact with the other, and where the child has historically attended school. Of course, this is not an exhaustive list.

Sole Custody – only one parent makes decisions about the child. Sole custody may be appropriate in certain circumstances, as for example, if one parent has a drug or alcohol abuse issue, or is incarcerated or because there has been significant domestic violence between the parents.

Joint Custody – the parents are required to attempt to communicate and together make decisions about the child.

Custody decisions can be very difficult, especially if one party believes the other to be an unfit parent. There are several options to help in addressing concerns that one or both parents have about the other parent. (1) Custody evaluations by a mental health provider, usually a psychologist, who evaluates the parties and may meet with the children. The evaluator then writes a report to the court. (2) A parenting conference where the parties will meet with a counselor who has been trained in family law issues to discuss disagreements and areas of concern. The counselor may write a report to the court. (3) Mediation or negotiation of some type is very common in family law cases. The idea is that no one knows the children better than their parents and, ideally, the parents will put aside their negative feelings toward each other and focus on what is truly in their child’s best interest. Negotiated settlements are encouraged.

Custody cases can be emotional and turn nasty. It is important, that as a parent trying to negotiate custodial issues in your child’s best interest, or defending against accusations from your spouse, you do not involve your child in the process. Children should not have to hear about the other parent’s faults or shortcomings.

Each family is different and each case has its own unique set of circumstances. Call to schedule a consultation so that we may discuss the particulars of your situation.

Parenting Time

Parenting time (also referred to as physical custody or visitation) is the designation of time of when the child will be with each parent. Generally, a specific schedule or parenting plan is appropriate so that each parent knows when parenting time starts and stops and allows for consistency for the child. There is no presumption that one parenting plan is better than another. There is no presumption that a mother is better able to care for young children. There is no presumption that a father should have parenting time only every other weekend and for a mid-week dinner, just as there is no presumption that equal parenting time is in the child’s best interest. The parents, or the court if the parents can’t agree, must decide the details of the plan. Again, the best interests of the child is paramount. Logistical considerations can be involved: for example, if the parents live on opposites sides of the Valley, an equal access parenting plan is going to be very difficult to accomplish.

Parenting plans should include specific holidays and vacation schedule for the child as well. Any special time for one or the other parents should be included in the parenting plan, to eliminate problems in the future. As difficult as it may be to think about spending some holidays without your child, it is much better to resolve these questions in advance than to fight with the other parent about a particular day that is a special day between you or the other parent and your child.

Parenting plans should be very detailed. What works for one family is not necessarily going to work for another family. It is important to discuss with your attorney your specific concerns so that a workable parenting plan can be created. If the parents cannot reach an agreement, ultimately the court will decide what the parenting plan will be. You may or may not like the specific determinations made by the court.

Parents must be careful to not involve the child in the dissolution of marriage matters. The issues the other parent has should not be discussed with the child. If you believe your child is becoming negatively affected because of what is going with your spouse or the process, talk with your attorney. Going through this process is emotional and you should always try to put the children’s needs first.

Often, as the dissolution process continues, the communication between the parents worsens. There are options to deal with a difficult communicator or to try to improve the communication process, such as creating email guidelines. Oftentimes, a parenting coordinator, which is a neutral third party appointed by the court to assist with dispute resolution, will help with this. If communication is very poor between the parties, the court might require the parents to attend co-parenting counseling. Not everyone requires such communication intervention, but for those who need it, it can be extremely beneficial in refocusing the parties’ communication.

During the case you may feel that everything you do is being scrutinized by your spouse to show you are not a good parent. Schedule a consultation today to discuss the concerns you have about the other parent and the concerns the other parent may have about you, and the best way to protect yourself against what the other parent is saying about you.

Child Support

Child support is calculated in Arizona using the Arizona Child Support Guidelines which uses an income-based model that considers incomes of both parents. Even if one parent is not working, the court may attribute income to that parent. For example, if one parent is a stay-at-home parent, the court may attribute minimum wage to that person.

Generally, debts such as mortgage or rent or car payments are not included in determining child support. Certain expenses for the children will be included in the calculation: health insurance is one such cost; sometimes child care costs including private school tuition or counseling will be considered. The amount of parenting time each parent has will affect child support.

Apportionment of non-covered medical, dental and vision expenses must occur, as well as determination of the child tax dependency exemption. How are you going to divide extracurricular expenses and responsibilities? What happens if someone is not current on child support? What if one person is self-employed and there are concerns of hiding money? It is always important to know what you may be entitled to and what you may be responsible for when it comes to your children.

Child support decisions may be modified if there is a change of circumstances, such as if one parent’s income changes, either of the parents has another child, or parenting time changes. Call to schedule a consultation to discuss child support.

Spousal Maintenance/Alimony

Spousal Maintenance or alimony is one of the biggest issues over which people fight. In Arizona, it is not punitive or meant to punish the other spouse for wrongdoing during the marriage. The purpose is to help the lesser earning spouse, where appropriate, become self-sufficient. There are several things the court must consider to first determine if someone qualifies to receive spousal maintenance and, if so, then how much and for how long. The Court is concerned with whether the lesser earning spouse is able to support him or herself or if he or she has enough income producing assets to allow for self-support. The goal is to keep the lesser earning spouse from having to utilize state aid. In examining the second issue of how much and how long, the court has to examine very specific factors, some of which include the living circumstances of the parties’ during their marriage, whether one party did not work outside of the home, the parties’ ages, health, education and employment background.

Unlike child support, there is no set schedule or guidelines to calculate spousal maintenance. Each case is very fact specific and the results are often very inconsistent.

Spousal maintenance has important tax implications for both the party paying and the person receiving the money.

While no attorney should ever guarantee spousal maintenance will be obtained or avoided, there are certainly things an experienced attorney can do to help you with these issues.

If you want to request spousal maintenance or are concerned about your spouse requesting spousal maintenance, please call to schedule a consultation.

Division of Assets and Debts

Arizona is a community property state, which means everything done during the marriage was presumably done for the benefit of both parties. Note, however, each spouse may have separate property assets that do not get divided in a dissolution case.

The division of assets and debts is supposed to be an equitable division, in that both parties are supposed to receive an approximately equal share of the community assets. This does not mean that each party receives one-half of the value of each asset. Rather, the total value of all the assets each receives should be approximately equal.

In dividing up assets and debts or liabilities, the parties must make sure they are dividing all community property assets. This includes real property, such as houses, investment properties, commercial properties and land. It also includes furniture, furnishings, bank accounts, investment accounts, vehicles, boats, businesses, pets, essentially anything that is not real property.

Reasonable values must be assigned to community property to ensure an equitable division. Some values are easier to determine than others. I would be happy to discuss with you the options for determining the value of assets. Valuing a business requires special considerations. A formal business valuation may be necessary.

Debts also must be divided. Simply because a debt is only in one person’s name does not necessarily mean that the other spouse is not potentially liable for that debt.

Knowing the current values of all assets including banking, investment and retirement accounts is very important. Thorough knowledge of assets and liabilities will help a person prepare for a dissolution of marriage (divorce) and is vital for reaching an agreement. A current credit report on yourself can also be very helpful.

You may not be comfortable discussing your personal financial situation. However, in a dissolution case, openness and a frank discussion of the community assets and liabilities is vital to your case. You should chose an attorney with whom you feel comfortable discussing your financial details, and of course, any discussions are protected by the attorney-client privilege. Please call today to schedule a consultation.

Attorneys’ Fees

Whether one party may be ordered to pay all or a portion of the other party’s attorneys’ fees attorneys’ fees is governed by the Arizona Revised Statutes. However, there is no guarantee in any particular case that this will occur. In resolving the issue of attorney’s fees the court will consider the financial resources and disparity between the parties’ financial situations and the reasonableness of the positions taken throughout the case.

Each case is unique and one person may receive reimbursement or assistance with attorneys’ fees while another person does not. If you are concerned about attorneys’ fees, please call today to schedule a consultation.

Paternity/Maternity

A paternity case is initiated by a mother against the father and involves child custody issues when the parents were never married. A maternity case is when the father initiates the child custody case against the mother. Most of the same considerations occur as in a dissolution of marriage [RANDY - CAN WE HAVE A LINK TO THE DISSOLUTION PAGE HERE AS WELL?] child custody case. However, there are a few unique circumstances. Unlike when the parties were married, a father in a paternity or maternity case must establish legal rights to the child to obtain custody and parenting time rights. The mother will have to prove the man was the father to obtain child support. DNA testing may be required. An attorney experienced in paternity cases can help prepare for these issues.

Child Custody

Child custody is often thought to refer to the issue of which parent the child or children live with. In actuality, legal custody relates to which parent or parents make major life decisions about the child, such as medical, educational and religious issues. Legal custody does not affect when each parent spends time with the child or children. The court is obligated to order custody based on the best interest of the child. Many factors must be considered in deciding what is in a child’s best interest, such as who has been the primary caregiver, which parent is more likely to allow the other regular and frequent contact with the other, and where the child has historically attended school. Of course, this is not an exhaustive list.

Sole Custody – only one parent makes decisions about the child. Sole custody may be appropriate in certain circumstances, as for example, if one parent has a drug or alcohol abuse issue, or is incarcerated or because there has been significant domestic violence between the parents.

Joint Custody – the parents are required to attempt to communicate and together make decisions about the child.

Custody decisions can be very difficult, especially if one party believes the other to be an unfit parent. There are several options to help in addressing concerns that one or both parents have about the other parent. (1) Custody evaluations by a mental health provider, usually a psychologist, who evaluates the parties and may meet with the children. The evaluator then writes a report to the court. (2) A parenting conference where the parties will meet with a counselor who has been trained in family law issues to discuss disagreements and areas of concern. The counselor may write a report to the court. (3) Mediation or negotiation of some type is very common in family law cases. The idea is that no one knows the children better than their parents and, ideally, the parents will put aside their negative feelings toward each other and focus on what is truly in their child’s best interest. Negotiated settlements are encouraged.

Custody cases can be emotional and turn nasty. It is important, that as a parent trying to negotiate custodial issues in your child’s best interest, or defending against accusations from your spouse, you do not involve your child in the process. Children should not have to hear about the other parent’s faults or shortcomings.

Each family is different and each case has its own unique set of circumstances. Call to schedule a consultation so that we may discuss the particulars of your situation.

Parenting Time

Parenting time (also referred to as physical custody or visitation) is the designation of time of when the child will be with each parent. Generally, a specific schedule or parenting plan is appropriate so that each parent knows when parenting time starts and stops and allows for consistency for the child. There is no presumption that one parenting plan is better than another. There is no presumption that a mother is better able to care for young children. There is no presumption that a father should have parenting time only every other weekend and for a mid-week dinner, just as there is no presumption that equal parenting time is in the child’s best interest. The parents, or the court if the parents can’t agree, must decide the details of the plan. Again, the best interests of the child is paramount. Logistical considerations can be involved: for example, if the parents live on opposites sides of the Valley, an equal access parenting plan is going to be very difficult to accomplish.

Parenting plans should include specific holidays and vacation schedule for the child as well. Any special time for one or the other parents should be included in the parenting plan, to eliminate problems in the future. As difficult as it may be to think about spending some holidays without your child, it is much better to resolve these questions in advance than to fight with the other parent about a particular day that is a special day between you or the other parent and your child.

Parenting plans should be very detailed. What works for one family is not necessarily going to work for another family. It is important to discuss with your attorney your specific concerns so that a workable parenting plan can be created. If the parents cannot reach an agreement, ultimately the court will decide what the parenting plan will be. You may or may not like the specific determinations made by the court.

Parents must be careful to not involve the child in the dissolution of marriage matters. The issues the other parent has should not be discussed with the child. If you believe your child is becoming negatively affected because of what is going with your spouse or the process, talk with your attorney. Going through this process is emotional and you should always try to put the children’s needs first.

Often, as the dissolution process continues, the communication between the parents worsens. There are options to deal with a difficult communicator or to try to improve the communication process, such as creating email guidelines. Oftentimes, a parenting coordinator, which is a neutral third party appointed by the court to assist with dispute resolution, will help with this. If communication is very poor between the parties, the court might require the parents to attend co-parenting counseling. Not everyone requires such communication intervention, but for those who need it, it can be extremely beneficial in refocusing the parties’ communication.

During the case you may feel that everything you do is being scrutinized by the other parent to show you are not a good parent. Schedule a consultation today to discuss the concerns you have about the other parent and the concerns the other parent may have about you, and the best way to protect yourself against what the other parent is saying about you.

Child Support

Child support is calculated in Arizona using the Arizona Child Support Guidelines. It is an income-based model, which means that incomes for both parents are included. Even if one parent is not working, the court may attribute income to that parent, such as minimum wage or some other amount.

Generally, debts such as mortgage or rent or car payments are not included in determining child support. There are certain expenses for the children that will be included in the calculation. Health insurance is one such cost. Sometimes child care costs will be included or the cost of a private school tuition or counseling. The amount of parenting time both parents have will affect child support.

Apportionment of non-covered medical, dental and vision expenses must occur, as well as division of the child tax dependency exemption. How are you going to divide extracurricular expenses and responsibilities? What happens if someone is not current on child support? What if one person is self-employed and there are concerns of hiding money? It is always important to know what you may be entitled to and what you may be responsible for when it comes to your children. Child support is also modifiable in cases where one parent’s income changes, or one parent has another child or there is a change in parenting time. Please call to schedule a consultation to discuss child support.

Post-Decree Custody and Support

Court determinations related to your children, custody, parenting time and child support may be modified as long as the children are still minors. Any modifications after a prior order, such as a paternity finding or dissolution of marriage, is referred to a post-decree case. Such modifications are necessary because circumstances change. As children grow up, their needs change, schedules change, parents may remarry, etc. Incomes change and the parties may have additional children. Because the court’s obligation is to consider the children’s best interest, there may be times when it is appropriate to modify a previous plan or order.

Prenuptial/premarital agreements

As people wait to get married, or enter into second or additional marriages, prenuptial agreements concerning how the parties will divide assets and debts after marriage are becoming increasingly popular. There are many reasons why someone would want to enter into a prenuptial agreement before marriage, some of which may include: protection of assets accumulated before marriage; protection against debts; protection of inheritance rights of children from a prior marriage; or a modification of the community property laws that might otherwise apply.

The parties are able to decide, by written contract or agreement, how they want community property laws to apply or not apply. The parties are able to discuss the liability each will have for debts, how they will deal with spousal maintenance or living circumstances, and anything else that does not relate primarily to their children.

People have very different reasons for wanting to enter into a prenuptial or premarital agreement, and simply because one or both parties want a prenuptial agreement does not mean that the parties are not committed to their relationship. If you are considering a prenuptial or premarital agreement, please call to schedule a consultation to discuss your options and what it means. Prenuptial or premarital agreements written without an attorney’s assistance may not be valid and enforceable. An experienced attorney can help you with doing everything possible to make such an agreement enforceable.

Appeals

By the time the decree of dissolution of marriage or stipulated order is signed by the judge, most people are ready for the case to be finished. However, there are circumstances when it may be appropriate for one person, or both, to ask the Arizona Court of Appeals to review the trial court’s decision. Having an attorney who has practiced before the Arizona Court of Appeals is extremely important. The Court of Appeals is three-judge panel that will review written documents, legally known as briefs, to decide whether to uphold or reverse the trial court’s decision. Sometimes there is oral argument before the Court that is taken into consideration as well. Not all attorneys practice before the Court of Appeals, but I have been involved with multiple appellate issues over the years.

If you have an issue you may wish to appeal, please note that there is a very limited time to file an appeal to have the Arizona Court of Appeals review and decide the case. You should immediately call to schedule a consultation to discuss your case.

 

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