Tuesday, February 12, 2008

Grounds for Divorce in a Covenant Marriage

By James Jennings

We have done countless divorces involving convenant marriage over the years and is one of the most confussing topics for people to understand.

So what is a convenat marriage and how do I get divorced if I have one?

In 1998 the State Legislature created a type of marriage in Arizona called "covenant marriage." It did not replace the kind of marriage already available. Instead it offered an additional option to couples who wish to marry.

The covenant marriage differs both in the steps necessary to get married and the reasons why a legal separation or divorce may be granted by the court.

To enter into a covenant marriage, the couple first must have premarital counseling from a member of the clergy or a marriage counselor. Then, when applying for a license to be married, both persons must show their intention to enter into a covenant marriage by signing a declaration on the application form. In a covenant marriage, legal separation or divorce may be granted by the court only for specific reasons listed in state law.

To get a divorce, any one of the following reasons must be true.

1. Your spouse has committed adultery.

2. Your spouse has committed a felony and has been sentenced to death or imprisonment.

3. Your spouse has abandoned you for more than 2 years and refuses to come back.

4. Your spouse has either (1) physically or sexually abused you, a child or a relative of either of you who lives permanently in your home, or (2) committed domestic violence (defined in Section 13-3601 of the Arizona Revised Statutes) or emotional abuse.

5. Your spouse and you have been legally separated for more than 1 year.

6. Your spouse regularly abused drugs or alcohol.

7. You and your spouse agree to end the marriage.

Monday, February 11, 2008

Does equal visitation mean no child support?

By James Jennings

One of the most common questions we get asked is: If both parents agree to 50/50 custody and neither want to pay or recieve child support will one of the parents have to pay some amount?

You must keep in mind the most important rule is child support serves the best interests of the child - NOT the parents! So even if the parties "agree" not to pay child support to each other, the court will have an independent legal obligation to ensure that your agreement doesn't hurt the kids.

A 50-50 division of parenting time often results in a minimal need for child support payments. But not always! Much depends on your respective incomes, who pays the medical insurance, extraordinary child expenses, daycare, and spousal maintenance. The judge will also consider whether either party is already paying support for other children from a different relationship.

In other words, there are many factors that play an important role in the child support calculation, and 50-50 custody is just one piece of the puzzle.

Tuesday, February 5, 2008

Some Issues Concerning Residency

By James Jennings

If one spouse meets the residency requirement of a state (such as having lived there from six months to a year depending on the state), a divorce obtained there is valid, even if the other spouse lives in another state. The courts of all other areas will recognize the divorce.

However, any decisions a court makes regarding property division, alimony, custody, and child support may not be valid unless the nonresident spouse consented to the jurisdiction of the court. A nonresident spouse consents to jurisdiction if the nonresident spouse shows up at a court date or signs an affidavit of service, acknowledging receipt of the filed legal documents.

Moreover, one of the judges in the Maricopa Superior Court takes this one step further and requires specific wording in the acceptance of service, stating that the other spouse is waiving their rights and accepting Arizona's jurisdiction.

Also, it can also happen if the nonresident spouse abides by the rulings of the court; for example, by paying court-ordered child support.

Monday, February 4, 2008

Misconception Regarding Legal Separation

By James Jennings

It is a common misconception that some people have that a legal separation is a shortcut to ending a marriage in Arizona. The practical truth is that legal separations can take just as much time, effort and resources as a divorce. That's because they involve pretty much identical issues as divorces --property division, debt division, child custody, visitation, child support, alimony, etc. Legal separations can end up going to a full-on trial, not to mention temporary evidentiary hearings prior to trial. Thus, if you're looking for a shortcut, a legal separation may not be the answer.

Furthermore, legal separations end with you still being officially married. Although everything has been divided up, you remain married, meaning that neither may legally remarry if that special someone comes along. In my experience with legal separations one party or both almost always later decide that they want a full divorce with more paperwork that must be submitted to the court to convert the legal separation to a divorce, resulting in more time and expense.

So, if you want to same time and money, and you know you’re headed for a divorce anyway, just start off filing for the divorce in the first place. If you honestly believe the marriage can be saved and you just need time apart, then a legal separation maybe the best course of action.

Friday, February 1, 2008

Discloser Statement

By James Jennings

Sr. Paralegal

Discount Divorce Pro., LLC

Often when the other spouse files a Response with the Court, the judge assigned to the case will issue an Order to Appear for an Early Resolution Conferance or an Evidentiary Hearing. This is because the case is now considered contested.

When our clinet's show us these Orders to Appear oftentimes they will state that discloser and Discloser Statements must be completed within 5 days and exchanged with the other party prior to the hearing date. Also, it is not uncommon that the judge will also want a Resolution Statement, List of Witness & Ehibits, and a Certificate of Readiness to filed along with the Discloser Statement.

If children are involved, the judge will also want a Parenting Plan for Child Custody and Vistiation, and a Parent's Worksheet for Child Support Amount.

So what is a Discloser Statment?

The Discloser Statement is a statement to the other party and the judge that tells what the factual basis for each claim or defense in a case is. It also tells the court and the other party what you are seeking, either money and/or an for a specific remedy. For example alimony, child support, child custody, half the equity in the home, etc.

Furthermore, a Discloser Statement also describes in detail to the everyone envolved which legal theories apply and why. It tells everyone exactly which laws and/or case law makes your case.
For example if you are seeking child support, in your Discloser Statement you would site Ariz.Rev.Stat. 25-320. This law tells the judge that child support should be calculated as per the states guidelines. It aslo tells everyone that the non-custodial parent should pay the custodial parnent child support because this is in the best interest of the child. That the non-custodial parent not only has an obligation to pay support for their children, but a duty.
Another example, if you wanted to show the court in a modification of child support hearing that the court no longer had jurisdiction to modify support because the child and both parents no longer resided in Arizona, then you would site McHale v. McHale, Ariz. Ct. App., 1 CA-CV 04-0022. Therefore, you could then maybe move the child support case to the state where you now reside. These are just a few expamples.

Also, a Discloser Statement tells everyone which witness are going to appear to help you make your case but also which exhibits you plan to show the court. If you do not disclose this information to the other party and the court in your Discloser Statement then you will not be allowed to present this information at your hearing. Which could have very serious repercussions.
For example if you were seeking alimony or child support, you would need to provide your W-2's or tax returns to show what your income was. If you do not list these as exhibits, then you may not be able to show them as proof.

So, where do you get a Discloser Statement?

Some people think you can go to the Self-Help Center or an online publication company and get these documents. Truth be told these types of places do not have these documents because of the complexities of the issues involved, these documents must be custom prepared. I highly recommend that you have a professional prepare these documents. These are very complicated documents with complicated procedure for preparing. They also require legal research which is a skill set most people do not have. I recommend getting someone that is well versed in family law and family procedure. We have prepared hundereds of these statements for clients over the years and have helped a great many people with these.

One final note. There are serious consequeses for the failure to prepare these documents as ordered by the court. The court can sanction, fine, and or have the other party get everything they are asking for if they prepare these documents and you do not. I have even seen the court dismiss the entire case if neither party files these documents.

So, if you receive and Order to Appear please contact us or an attorney immediately. Do not blow this off or wait until the day before your hearing to worry about this.
For more information visit: DiscountDivorcePro.com