Better keep track of those deposits and withdrawals

In a marital dissolution proceeding to divide community property, where the non-managing spouse has prima facie evidence that community assets of a certain value have disappeared while in the control of the managing spouse post-separation, the managing spouse has the burden of proof to account for the missing assets.

Husband and wife separated after a 33-year marriage and, for 12 post-separation years,continued to handle their joint finances as before: Husband had complete control of substantial community investment accounts and paid all the bills; wife trusted him to manage their finances for their mutual benefit. Just before trial, however, husband disclosed for the first time that the once-brimming investment accounts were virtually empty. Without any corroborating evidence, he attributed the dissipation of account values to proper expenditures and stock market losses.

At trial, wife argued the court should charge husband with the missing funds unless he proved he did not misappropriate the money. The Court of Appeals agreed.

For more information contact DiscountDivorcePro.com

Divorce Requirements

Some states have divorce waiting periods when filing for divorce to make sure that couples are absolutely certain about ending their marriages. Divorce waiting periods vary from state to state, ranging from a month to six months to even a year or more, if certain divorce issues haven't been resolved. In the past, states have considered extending divorce waiting periods, especially for couples with children. Such divorce legislation has been based on observations that shorter divorce waiting periods lead to higher divorce rates.

To file for a divorce in Arizona you or your spouse must have been lived in Arizona or been stationed as a member of the armed forces here for at least 90 days before you filed. If that is not true, DO NOT FILE until it becomes true.

Also, if you are asking the judge to decide matters about children like custody and support, you should generally have resided here for 6 months with the children immediately before you file for divorce. The State of Arizona must be the children's primary place of residence, according to the legal definition of residence. If you are not sure if Arizona is the primary place of residence for your children, talk to a lawyer before you file for divorce.

Even though deciding what information to put in the divorce papers is often complicated, the process for many divorces in Arizona can be quite simple. Arizona is a no-fault divorce state, which means that you do not need to prove that the other spouse did something which entitles you to a divorce.

Discount Divorce & Bankruptcy has a proven track record in assisting people in obtaining a divorce in Arizona since 1998. For more in formation contact Discount Divorce & Bankruptcy at 602-896-9020 or visit DiscountDivorcePro.com

Military Divorce

I wouldn’t say that military divorce is more complicated. It is different with it’s own unique rules regarding division of military pensions, residency requirements for filing for divorce, certain legal protections for the military member and emergency court orders pertaining to child support. Once you become familiar with the rules and federal laws that apply during a military divorce the divorce process is pretty straightforward.

Service members Civil Relief Act:
Military members have legal protection from divorce proceedings that are not established for civilians. Under the Service Members Civil Relief Act military members are protected from lawsuits including divorce proceedings so they can “devote their entire energy to the defense needs of the Nation.” A court can delay legal proceedings for the time that the service member is on active duty and for up to 60 day following active duty.

Jurisdiction of the court:

If the spouse of a military member seeks a divorce, the activity duty spouse must be served with a petition for divorce in order for a state court to have jurisdiction over the military member. If the activity duty spouse is serving overseas or deployed in time of war it may be requested that military authorities serve the activity duty member. The active duty member can refuse to accept the service and if this happens you may request the court serve the member. This can complicate the divorce process because not many courts are going to send someone a long distance to serve a military member. So, if your spouse is deployed or serving overseas you may have to wait until they return to the area to start the process.

Residency and Filing Requirements:

Many states will allow a military member or their spouse to file for divorce in the state the military member is stationed. It would not matter if neither is a legal resident of the state. Military members and their spouses have three choices when it comes to which state to file for divorce.

•State where the spouse filing resides.
•State where the military member is stationed.
•State where the military member claims legal residency.

Whichever state they file in the grounds for divorce, property distribution, child custody and child support issues are governed by the laws of the state where the divorce petition is filed.

Division of property:

Division of most marital property and assets is dependent on the laws of the state in which the petition for divorce is filed. Military pension is different and is governed by the Uniformed Services Former Spousal Protection Act. The USFSPA authorizes direct payment of a portion of a military retirees pay to the former spouse and extends some base privileges to certain former spouses.

The USFSPA allows state courts to treat disposable retired pay either as property solely of the military member or as property of the member and his spouse in accordance with the laws of the state court. The USFSPA does not contain a formula for calculating the appropriate division of retired pay. Although up to 50% of a military member’s retired pay may be awarded, it is the state laws that will determine the exact division of the retired pay and most state courts have a formula for calculating division of military pay.

It is important to understand that the USFSPA does not mean that just because you are married to a military member, you will get a portion of his retirement. Splitting of military retirement pay is not mandated by the USFSPA. If you are awarded a portion of the military member’s retired pay is up to the courts and they will treat it just like property or benefits in a civilian divorce. Also, your divorce decree must read that you were given a portion of the retirement and it must be written as a percentage.

For example, if you were married to a military member for 10 years the courts may decided you are entitled to 1/3 of the military retirement. It must state in your decree that you have been awarded 33% of the spouses retired pay. Defense Finance and Accounting (DFAS) has very strict rules when it comes to the wording of a divorce decree. You would be wise to notify DFAS and familiarize yourself with those rules and regulations.

Former Spouse’s Military Benefits:

Under the USFSPA a former military spouse is eligible for full medical, commissary and exchange privileges when the following apply to the marriage.

•The marriage last at least 20 years.
•The military member performed at least 20 years of service creditable for retired pay.
•There was at least a 20 overlap of the marriage and the military services.

If the spouse remarries, eligibility for benefits is terminated. The benefits are revived if the subsequent marriage ends in divorce.

Child Support:

All military members have a duty to provide support for their children, as well as their spouses, so their wages may be garnished in order to ensure the payment of proper support. Child support may not exceed 60% of a military member’s pay and allowances. Unlike a civilian divorce, if you divorce a member of the military and they do not follow court orders pertaining to child support, you can go to their commanding officer for him. It is like having extra added protection against a deadbeat parent.

For more information consult an attorney or visit DiscountDivorcePro.com

Immigration and Decision to Divorce

Although the holiday season is generally a happy period, it is also a time when individuals start reflecting on the state of their personal relationships. In fact, law firms experience a surge in divorce work during this period.

Deciding whether or not to divorce your spouse is a complicated and emotional process in and of itself. The process becomes even more complicated if the decision affects your immigration status in the United States.

The following paragraphs highlights how the decision of whether or not to divorce becomes even more complicated if an individual received his or her resident card as a result of a petition filed by their spouse.

The first instance in which your immigration status becomes an important consideration in the divorce process is when you received your resident card as a result of a petition filed by your spouse, and you have not yet celebrated your two-year anniversary at the time of the petition's approval. You will note that at the time of the adjustment interview, the interviewing officer advised you and your spouse that your resident card was only valid for two years.

The interviewing officer also said you are required to file a petition in order to remove the conditions on your resident card. This is because your marriage is subject to the Marriage Fraud Act, which was enacted to discourage marriage solely to obtain immigration benefits.

Ideally, in order to remove the conditions on your residency, you and your spouse should file a joint petition before your resident card expiration. At this time, you are required to submit evidence about your marriage that you have accumulated since your petition's approval.

However, should you and your spouse divorce prior to your card's expiration, you are able to file a petition removing the conditions on your residency. Because of your divorce, you have to submit additional evidence regarding your relationship and the circumstances of your divorce. In addition to submitting evidence about your marriage, you should also submit evidence that you had intended into entering a bonafide and genuine relationship. Notwithstanding such intentions, your relationship did not work out.

If you were abused or mistreated, you should submit evidence demonstrating such.

The second instance in which your immigration status becomes an important consideration is during the naturalization process.

A divorce will not preclude you from becoming a citizen, but it may take you longer to qualify for naturalization. Generally, a naturalization applicant should be a resident cardholder for a period of five years in order to qualify for naturalization. However, if you received your resident card based on a petition filed by your United States citizen spouse and you are still married to and reside with that same spouse, then the waiting period is reduced to only three years.

Divorcing your spouse before filing your application or during the naturalization application process can affect your ability to take advantage of that reduced three-year period.

In sum, because divorce may have implications on your immigration status, most immigration attorneys would always advise you to marry foremost because you love that individual. Your immigration status should not be the main consideration. If you follow this rule, then a divorce later down the line should not have that significant impact on your status.

Your individual case, may contain facts that may potentially change the outcome of your case. A consultation with an experienced immigration attorney will provide you with a more comprehensive assessment of your case.

For more information contact an attorney or visit DiscountDivorcePro.com

Student Loans in Bankruptcy

Student loans are no longer dischargeable in bankruptcy just because they have been in pay status for a given period of time. The only way the loan can be discharged is by proving that repayment of the loan will create an undue hardship on the debtor/borrower and his family.

This standard is generally interpreted to mean that the debtor cannot maintain a minimally adequate standard of living and repay the loan. It usually requires a showing that the conditions that make repayment a hardship are unlikely to improve substantially over time. Many courts use the test for undue hardship found in the Brunner case.

Courts in some circuits will permit the judge to find that the debtor can repay a portion of the loan without hardship, and to discharge the balance of the loan.

To discharge a student loan in bankruptcy, the debtor must bring an adversary proceeding in the bankruptcy case. The debtor must prove at trial that repayment constitutes undue hardship.

There is some small comfort in the federal regulations which restrict the amount of a student/borrower's wages that can be garnished to repay a student loan to 10% of the borrower's take home pay. 59 Fed. Reg § 22473.

Of course, the lender also has the right to intercept tax refunds and apply them to the loan.

For more information contact an attorney of visit DiscountDivorcePro.com

Arizona Child Support: What Every Parent Should Know

Arizona law requires custodial and non-custodial parents to provide “reasonable support” for their minor children. A.R.S. § 25-501(A). This obligation is not avoidable. In the midst of a divorce, the right to receive this support and the amount owed by each parent can be overlooked. To ensure that parents prioritize their obligations to their children, Arizona courts impose the “best interests” of the child standard during every step of a divorce or paternity proceeding. In fact, the court will give a parent’s child support obligation priority over all other financial obligations of the parent. A.R.S. § 25-501(C).

This aspect of family law is so important that determination of the amount of child support to be paid by each parent is not left to unrestricted judicial discretion. Instead, the Arizona Supreme Court has adopted a set of guidelines, which provide a formula for calculating the amount of monthly support owed by each parent. Appropriately titled the “Arizona Child Support Guidelines”. However, the detailed explanation available from the court can leave parents with more questions than answers. To help you understand these issues, we have outlined some of the important points embedded in the Guidelines. Unfortunately, when emotions are high and interests are not aligned with each other, it may be necessary to seek professional advice to ensure a fair outcome.

For more information contact an attorney or visit DiscountDivorcePro.com

Never Married and the Mother of My Child Will Not Let Me See My Kid

An action may be brought to establish the paternity of a child born out of wedlock, to compel the support of the child, and to establish custody and visitation rights. The action may be filed by the mother, father, or guardian where the child resides or may be found. A.R.S. § 25-803.

What should I do if someone I am not married to is pregnant and I want to ensure that she does not give the child up for adoption?

A father (or a person who thinks he is a father) who is seeking to establish paternity and wants to receive notice of adoption proceedings must file a notice of his claim of paternity and his willingness to support the child with the registrar of vital statistics. The notice may be filed before the birth of the child, but must be filed within thirty days of the birth of the child. A.R.S. § 8-106.01 and § 25-812.

Will I have to take a blood test?

In most cases no. However, the court may on its own motion or the motion of any party to the proceedings order blood or DNA testing.

What are my support obligations once paternity is established?

After a finding of paternity, the court shall determine the amount of past support to be paid. The court will not order past support back further than three years from the beginning of the proceeding unless it finds there is good cause. A father may also be ordered to pay the expenses of the childbirth. A.R.S. § 12-809.

What do I get custody or visitation rights?

Custody and visitation can be established through a paternity action by any party other than the state.

For more information contact an attorney or visit DiscountDivorcePro.com

Collecting Unpaid Child Support

There are many approaches to take in attempting to collect unpaid child support:
Wage Garnishment

Many child support orders have a clause that allows you to garnish the wages of the paying parent once payments become overdue. If your child support order doesn't have this language, you can ask the court to add it to your order.
A professional agency like us can prepare and serve the paperwork for a garnishment on the nonpaying parent's employer.
Once the garnishment takes effect, the current child support and some portion of the overdue child support is taken directly out of the nonpaying parent's paycheck each pay period.

The amount of wages that can be withheld each pay period for child support cannot exceed 50% of a total earinings in Arizona.
Child support garnishments usually take precedence over other garnishments, such as consumer debt garnishments.
License Suspensions

Under the 1996 Welfare Reform Act, all states must have procedures for revoking the licenses of non-paying parents.
Affected licenses include:

Driver's licenses
Passports
Professional licenses (medical personnel, lawyers and any other profession for which you need a license to perform)
Recreational licenses, such as fishing and hunting

Attaching Tax Refunds

If the nonpaying parent is at least three months behind in child support payments, the Federal Tax Offset Program allows you to attach (take) the nonpaying parent's federal income tax refund.
Liening Property

If you put a lien on the nonpaying parent's real estate, he or she won't be able to sell the property without paying the overdue child support.

Putting a lien on property is easy to do, but there's no guarantee the nonpaying parent will sell the property any time soon.
Federal Criminal Prosecution

The Deadbeat Parents Punishment Act (DDPA) makes it a felony to:

Move from one state to another to evade child support obligations
Fail to pay more than $10,000
Fail to pay due child support for more than two years

Contempt Motions

Another option might be to file a contempt motion against the parent who hasn't paid support, asking the court where the child support order originated to hold him or her in contempt for violating the child support order.
Hiring us is a fast and most efficient way of processing a contempt motion.

For more information contact an attorney or visit DiscountDivorcePro.com

What Can Be Done About Threating Creditors

Because collection agencies for unsecured creditors have only one way to get their money back, short of a lawsuit, they will call you relentlessly, send you mail and generally try to make you wish you had never defaulted.

There are some of the rules they must abide by, according to the Fair Debt Collection Practices Act.

They cannot tell anyone that they are collecting a debt. They cannot even mark the outside of mail notices with any indication that they are attempting to collect a debt.

If they call you at work, tell them to stop. After that, any call they make to your business, is illegal.

They must call you between the hours of 8 a.m. and 9 p.m. local time.

They may not threaten you or curse at you.

If you notify the collection agency in writing that you wish them to cease and desist contacting you, they can only contact you once more to confirm they will not be contacting you.

If any collection agency ever violated any of these rules, you may sue them. Be sure to document the incidents thoroughly.

For more information call an attorney or visit DiscountDivorcePro.com

Does Bankruptcy Remove All My Creditors?

It is important to realize that bankruptcy does not necessarily allow you to avoid paying back every kind of debt. For public policy reasons, several kinds of debts are specifically excluded from discharge in bankruptcy. The most common debts which cannot be discharged are child support obligations, spousal support, criminal restitution and fines. Some other types of debts are dischargeable in some circumstances but not others – for example, debts from taxes, bad checks and the fraudulent use of a credit card may not be erased. Student loans are sometimes but very rarely discharged, and if they are discharged, it does not happen automatically. The details of your own particular situation should be discussed with a lawyer or other knowledgeable person before you begin bankruptcy proceedings.

For more information contact an attorney or visit Discount Divorce & Bankruptcy