eFamilyLaw.com

An Interesting Case: Is Drug Use Ok Prior to Visitation Acceptable?

2012-01-26T08:04:00.000-08:00

In a recent case in the New Jersey Superior Court, Appellate Division, Case Number: A-2571-10T4, filed: December 21, 2011 declared that not all instances of drug ingestion of a parent will serve to substantiate a finding of child abuse or neglect. The court was addressing a case involving a father with supervised visitation with his daughter due to charges of assault and child abuse.

The Division of Youth and Family Services had obtained an order restricting the father's contact with his daughter to division-supervised visits. He was also ordered to attend substance abuse treatment and submit to urine testing.

At supervised visits, the father tested positive for cocaine and marijuana, and later admitted using such drugs two days prior to the visits. (The test results came back several days after the visits, which the visitation supervisor reported were uneventful, with the father acting appropriately and showing no signs of impairment.)

Finding that the father had not fully cooperated with the recommended drug treatment, the trial court held that he had exposed the 11-year-old daughter to a substantial risk of harm during the visits by testing positive for cocaine and marijuana, and concluded that the division had proven by a preponderance of the evidence that he had neglected her.
Reversing, Judge Ellen L. Koblitz accepted the trial court's factual findings, but disagreed that such behavior inherently created a substantial risk of harm to the child. The Court of Appeals noted that the Division reported that the father behaved appropriately at both supervised visits and demonstrated no indicia of impairment. Thus, the State had not demonstrated any risk, let alone one of a substantial nature, to his daughter.

“Contrary to the trial judge's conclusion, use of illegal drugs days prior to a supervised visit does not as a matter of law constitute neglect.”

“We recognize that the use of illicit drugs is illegal and that a parent should not exercise visitation, even supervised visitation, while impaired. However, Title 9 [incorporating the state child abuse statutes] is not intended to extend to all parents who imbibe illegal substances at any time. The Division would be quickly overwhelmed if law enforcement was required to report every individual under the influence who had children.”

For more information visit: DiscountDivorcePro.com

When is the Best Time to File for Divorce?

2012-01-25T15:23:00.001-08:00

Everyone facing a divorce will wonder to some extent if it's the right time to file. I read an interesting article in the county bar’s newsletter written by an attorney, and he says that if any of the following conditions exist, you should seriously consider filing for divorce – after seeking legal advice.

1. Violence. If there has been violence directed against you or your children, you probably need to get out. You may be able to get your spouse kicked out, but you should take whatever steps are necessary for the safety of you and your kids.

2. Abandonment. If your spouse has left, that's a pretty clear signal that the marriage is over. You should file to protect yourself financially and to take care of your kids (if you have any).

3. Hiding of Assets. If you discover, or suspect, that your spouse is hiding assets from you.

4. Wasting or Disposing of Assets. If your spouse is spending money irresponsibly or getting rid of assets, you need to put a stop to it.

5. Your Gut Feeling. Sometimes you just know that the time is right. You may not be able to put your finger on a specific reason or cause, but you know it's time.

6. Counseling Doesn't Work. You've tried counseling and you just didn't get the issues resolved. Often the party not initiating counseling is resistant and won't put in the effort to make changes. It's usually a good idea to try working with a counselor, but (as you undoubtedly know) you can't make your spouse change unless he or she wants to.

7. Hiding the Kids. If this is going on, you need to act right away.

8. Alienating the Kids. This is less obvious, but you may start seeing signs if the kids suddenly start avoiding you or saying hateful things to you. You need to get into court, get the kids into counseling and get some controls over your spouse. It is very difficult to stop and undo such behavior.

9. Running Away. If your spouse has run away with the kids, you need to get into court and get an order to get the kids back. You don't want to wait and allow your spouse to establish legal residence somewhere else.

10. Spouse is About to File. If you find out your spouse is about to file for divorce, you need to decide whether to try to beat your spouse to the courthouse or just prepare for a first court hearing.

Hopefully, this list will help you think about the decision of when to file.

For more information go to DiscountDivorcePro.com

Tips for Self Representation in Court: The Objection

2012-01-24T14:40:00.000-08:00

By: Susan Minsberg

The purpose of a deposition is to gather information, not to show off. The permissible scope of discovery is whether the information you are seeking is reasonably calculated to lead to the discovery of admissible evidence. The standard is not whether it will be admissible. Rather,can it lead to admissible evidence?

• Irrelevant. If the question may lead to admissible evidence, it is proper. If the question is so far afield, a relevance objection may be warranted.

• Hearsay. While a hearsay objection is appropriate at trial, it is not appropriate in a deposition.

For example, if you ask the deponent, “What did Jane tell you?” the answer can lead to the discovery of admissible evidence. You can determine based on the answer whether you should take Jane’s deposition and you can then ask Jane directly.

If Jane’s testimony is important, you can call Jane as a witness to testify at trial.

• Assumes facts not in evidence. Since this is not a trial, it is okay to assume facts that are not in evidence.

• Calls for an opinion. You do not need to lay foundation to determine whether the deponent is qualified to give an opinion. It is appropriate to ask for an opinion and how he or she arrived at that opinion. Those answers can lead to discoverable evidence.

• Speaking and coaching objections. The lawyer defending the deposition is not supposed to be testifying. Nor should the lawyer coach the deponent with objections.

Objections should be stated succinctly in a non-argumentative and non-suggestive manner.

Privilege. This is the big one. It must be made or it is waived. This covers any privilege such as attorney-client and physician-client. You can ask, “When you spoke with your lawyer about this case, was anyone else in the room? Who?” Based on the answer, the privilege may have been waived. Privilege is the one rare case in which a deponent should be instructed to refuse to answer.

• Form of the question. This objection is usually asserted to make a clear record. For example, if the question is compound and the person answers yes, what portion of the question are they agreeing with? A form objection should also be made to a confusing question, as well as a question that calls for the witness to speculate. Form questions are waived if they are not made during the deposition.

• Mischaracterizes earlier testimony. This is also to make sure there is a clear
record.

• Asked and answered. This is a useful objection to make sure that your client doesn’t give a different answer than was given a few hours earlier. If you don’t make the objection and your client does provide differing information, your client has obviously lost credibility.

• Harassment. If the deponent is being harassed or bullied, object. If that behavior continues, state on the record that if the specified conduct continues, you will terminate the deposition. Make sure the record will be clear to an outsider (i.e. the judge) that the witness was being harassed.

For more information visit DiscountDivorcePro.com

Consider Fairness After Divorce

2012-01-18T08:13:00.000-08:00

By BERNEY WILKINSON

In my last column, I presented one of the most common pitfalls following a divorce. Today we will focus on another issue related to parenting following a divorce.

Last week's issue related to how much time the children spend with each parent. This often creates a great deal of strife, stress and frustration for the parents and the children. Children do not always understand they cannot do something because it would cut out "time" they would spend with their mom or dad.

In fact, when I talk with these kids, they often say "all we do is sit around the house anyway, why can't I go do something that I want to do?" The kids have a point. However, because parents are so hung up on time, they cannot see what it is doing to their children. The parents get stuck on the issue of fairness, which just so happens to be the second pitfall.

Though related to the issue of time, the issue of "fairness" often complicates life following a divorce. For parents, fairness usually includes two things: time-sharing and money. In regard to time-sharing, parents often voice the same issues discussed last week related to time. That is, the most "fair" time-sharing schedule is 50/50. While that schedule works very well for some children, it is not at all recommended for others. Many children need consistency that includes sleeping in the same bed more nights than not.

When parents are so stuck on fairness, they have difficulty seeing what is best for the child, as opposed to what is "fair" for the parent. In these situations, I remind parents of life before the divorce.

Prior to the divorce, how much time each night did each parent spend, one-on-one, with the child? Probably not a lot of time, unless they were helping him/her with homework or eating dinner together.

Most of the time, the child is playing (outside or with video games) or doing homework between the time they get home from school and preparing for bed. I have never met a parent who spends four hours of one-on-one time each night with their child. It just does not happen.

So why is it such an issue after the divorce that parents are willing to have an ongoing court battle over it that could last years? It just is not healthy for the child.

The second issue of "fairness" relates to money. As the family dynamics change, so do financial resources for the respective parents. While one parent may have the ability to take the children to Disney, the other may not. While one parent can buy the children "everything they want," the other parent may be financially limited. When these situations occur, I often hear from parents claiming, "My son's father buys him whatever he wants, and I can't. He is trying to turn my son against me." To these parents, I find myself saying, "You're right, it is not fair. But who ever said it would be?"

Nothing about these situations are fair, they just are what they are. If the father (or mother) is able to turn the son against the other parent by buying him things, work needs to be done on the parent-child relationship. But that is not necessarily the other parent's fault. Does that happen? Sure, there are times when the intent is to jade the child in one direction or another. But that is not typical.

When it comes to "fairness" after a divorce, parents must consider what is "fair" for the child. Is it "fair" the child has to split his time between his parents? Is it fair the child does not get to sleep in the same bed every night? Is it fair the child feels pulled in two directions because he wants both parents to be happy?

Parents are encouraged to consider how their personal views of fairness may affect their child (positively or negatively). What may feel fair to them may be unfair to the one who did not have a choice in the divorce.

For more information visit DiscountDivocePro.com or call 602-896-9020

Grandparents Visitation

2012-01-17T08:57:00.000-08:00

One of the most important issues facing families these days is the issue of grandparents' rights with respect to their grandchildren. In some situations, grandparents seek to have visitation with their grandchildren and in other situations, they seek to have full custody of the children instead of the natural parents.

When a grandparent seeks visitation with a grandchild in Arizona , such a request is made pursuant to the law. In considering a request for grandparent visitation, the Court must consider if the requested visitation is in the best interests of a child. A grandparent can only request visitation if they meet one of the following three situations: if the marriage of the parents of the child has been dissolved for at least three months, if a parent of the child has been deceased or has been missing for at least three months, or the child was born out of wedlock.

In determining what amount of visitation, if any, is in a child's best interests, the court must also consider the historical relationship, if any, between the child and the person seeking visitation, the motivation of the requesting party in seeking visitation, the motivation of the person denying visitation, the quantity of visitation time requested and the potential adverse impact that visitation will have on the child's customary activities, and if one or both of the child's parents are dead, the benefit in maintaining an extended family relationship.

Under Arizona law, the family court must also apply the presumption that a fit parent acts in his or her child's best interest in decisions concerning the child's care, custody and control, including decisions concerning grandparent visitation. Therefore the court must give special weight to a fit parent's determination of whether visitation is in the child's best interest.

If a grandparent wishes to seek custody of a minor child, such a request can be filed in the family court. In order for a grandparent to be awarded custody or a minor child, the court must find that the grandparent stands in place of a parent and that the child and grandparent have formed a normal child-parent relationship, that It would be significantly detrimental to the child to remain or be placed in the custody of either of the child's living legal parents who wish to retain or obtain custody, and that the parents were not married to each other or one of them is deceased. If a person other than a child's legal parent is seeking custody there is a reputable presumption that it is in the child's best interest to award custody to a legal parent because of the physical, psychological and emotional needs of the child to be reared by the child's legal parent. To rebut this presumption that person must show by clear and convincing evidence that awarding custody to a legal parent is not in the child's best interests.

For more information visit DiscountDivorcePro.com or call 602-896-9020.

Understanding the Differences Between Sole Custody and Joint Custody

2012-01-16T08:12:00.000-08:00

In a divorce in Arizona, the way that legal custody is structured will ultimately have a significant impact on how future decisions affecting children will be made. Physical custody impacts where the child will live. Legal custody impacts day-to-day decisions such as health care, religion, education and other major issues. Custody arrangements may also impact visitation rights, child support and other matters.

Understanding the differences between sole custody and joint custody is important for parents going through a divorce or family law matter.

The concept of joint legal custody does not necessarily imply that the time spent with each parent will be equal, but it does mean that parents will consult with one another on important issues pertaining to their children. Parents with joint custody are encouraged to resolve disagreements amicably but may also petition the court to make a decision that is in the best interests of the child when agreement is not possible.

Since the courts in Arizona prefer that both parents have a relationship with their children, sole custody is much rarer than joint custody. When one parent is considered unfit, however, sole custody may be the best solution for the child. Sole custody does not automatically limit visitation rights, but the sole custodial parent is allowed to make the ultimate decisions on many issues even over the objection of the non-custodial parent.

For more information visit discountdivorcepro.com or call 602-896-9020 and speak with a paralegal.

Process Serving in Mexico: Do it Right the First Time

2012-01-05T09:05:00.000-08:00

A default order entered against a Mexican father in his ex-wife's action under the Hague Convention on child abduction for the return of their child to Texas is void, where she did not effect proper service of process on him in Mexico. Finding that the mother was required to serve the father in accordance with the Hague Convention on Service of Process Abroad, the court determined that she had failed to serve him either through Mexico's Central Authority or in compliance with the internal law of Mexico regarding service of documents from abroad, as mandated by the Service Convention.

The father filed a special appearance, contending that the order was void because the mother had failed to show proper service of process on him. She acknowledged that he was not served through Mexico's Central Authority, as required by The Hague Service Convention, but argued that he had been served in accordance with the internal laws of Mexico, which allow for service on a party's designated agent.

The Judge held that for the mother to establish that service on the father complied with Article 19 (of the Hague Convention on the Service Abroad of Judicial and Extra-Judicial Documents), she was required to show that the service she employed complied with the internal law of Mexico providing for service of documents coming from abroad.

In re J.P.L. Texas Court of Appeals Case Number: No. 04-10-00646-CV Date Filed: 11/23/11

To get started today on a divorce or bankruptcy visit DiscountDivorcePro.com

Gambling and Dirty Underwear Lead to Divorce

2012-01-03T09:27:00.000-08:00

I came across an interesting case out of a court in Mississippi and thought I would share. Husband's conduct constituted habitual cruelty as ground for divorce; husband committed intentional, often dishonest, and possibly criminal acts, through which he dissipated the parties' assets to fund his gambling addiction, and his sexual and personal hygiene issues rendered the relationship revolting to wife.

The Court found that Husband‘s behavior taken as a whole, constitutes habitual cruelty. His qualifying conduct includes not only his gambling losses of over $300,000, but his series of intentional, often dishonest, and possibly criminal acts, through which he dissipated the parties‘ assets to fund his gambling addiction.

Further, the Court found that his sexual and personal-hygiene issues rendered the relationship ―revolting. Wife testified Husband had ―loose bowels and would often get into bed with her wearing soiled underwear. Wife claimed Husband ―refused to wash, clean up. And this was at least five times a week most weeks. Even after Wife laid out clean underwear for Husband, he refused to change out of his soiled ones. Wife explained the odor was so revolting to her that she frequently slept in a separate room.

Husband also claimed that since Wife accompanied him to the casino about six times, she condoned the vast majority of his substantial gambling debt. However, the Court did not find his argument compelling.

Better keep track of those deposits and withdrawals

2011-12-30T09:34:00.000-08:00

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

2011-12-29T08:10:00.000-08:00

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

2011-12-15T08:27:00.000-08:00

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

2011-12-14T08:41:00.000-08:00

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

2011-12-11T08:02:00.000-08:00

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

2011-12-10T08:06:00.000-08:00

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

2011-12-09T11:07:00.001-08:00

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

2011-12-08T06:53:00.000-08:00

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

2011-12-07T08:03:00.000-08:00

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?

2011-12-06T12:02:00.000-08:00

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

Common Misconception about Legal Separations

2011-11-30T14:30:00.000-08:00

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.

For more information vist Discount Divorce & Bankruptcy

Dangers and Pitfalls of Doing Legal Documents Yourself

2011-11-16T10:27:00.000-08:00

Not all marriages fail for the same reason. Nor is there usually one reason for the breakdown of a particular marriage. There for there is no "one-size-fits-all" set of documents for divorce. Many divorce document form publication companies will try to mislead you into thinking there is. Doing your own divorce paperwork means hours of research through hundreds of pages of court rules and statutes, and sorting through divorce papers.

People that try to do it themselves with self-help packets thinking they have saved themselves money, only discover later that their documents were rejected by the court months later for not addressing the issues correctly. Still other's with self-help packets get their cases thrown out for not following court procedures correctly.

Although it is possible for people to represent themselves in court, they must follow the same rules and procedures as attorneys. This means that ignorance of procedures is no excuse. Any papers required to be filed with the clerk of the court must be in the proper form and filed on time. The judges, clerks and staff of the court are not permitted to give legal advice.

While there is certainly nothing to be ashamed of, it has been our experience that the average (or even above average person) who is not familiar with the Divorce preparation process has a VERY difficult time preparing their own paperwork and successfully navigating the State Family Court. Divorce cases often involve important issues about child custody and parenting time, property and debt division, or child and spousal support.

With Discount Divorce & Bankrutpcy we take care of everything for you. Divorce is rarely easy, but it doesn't have to drain your pocketbook or your emotions. When you use Discount Divorce you get all the completed divorce papers you need to finalize your divorce plus we do all the court filing and process service.

For more information see Discount Divorce FAQ section

Arizona Alimony (Spousal Support)

2011-10-25T16:20:00.000-07:00

Arizona spousal maintenance issues often constitute the most financially significant issue in a divorce case. An award of spousal maintenance will have a significant impact upon the future lifestyle of the spouse ordered to pay that support, as well as the lifestyle of the spouse seeking that support.

Arizona alimony awards are decided after the consideration and evaluation of a multitude of statutory factors and should, at a minimum, include a review and understanding of the following spousal maintenance factors:

Whether the spouse seeking spousal maintenance has sufficient property, including community property apportioned to that spouse, to provide for his or her reasonable needs;

Whether the spouse seeking spousal maintenance is able to become self sufficient through appropriate employment or is the custodial parent of a child whose age or condition is such that he or she should not be required to seek employment;

Whether either spouse has contributed to the educational or career opportunities of the other spouse;

Whether the spouses had a lengthy marriage or a spouse is of an age that precludes the possibility of gaining employment adequate to allow that spouse to be self sufficient;

The standard of living established during the marriage;

The age, employment history, earning ability, and physical and emotional condition of the spouse seeking spousal maintenance;

The ability of the spouse from whom spousal maintenance is sought to meet his or her needs while meeting the financial needs of the other spouse;

The comparative financial resources of the spouses, including their comparative earning abilities in the labor market;

The extent to which the spouse seeking spousal maintenance has reduced his or her income or career opportunities for the benefit of the other spouse;

The ability of both parties after the divorce to contribute to the future educational costs of their mutual children;

The time necessary to acquire sufficient education or training to enable the spouse seeking spousal maintenance to obtain appropriate employment sufficient to support that spouse;

Whether a spouse has made excessive or abnormal expenditures or has concealed, destroyed, or fraudulently disposed of marital property; and

The cost of obtaining health insurance for the spouse seeking spousal maintenance.

Understanding all of these spousal maintenance factors and knowing how each of those spousal maintenance factors impact your case is crucial to securing the best possible outcome in your case.

For more information speak with a representive at discountdivorcepro.com

Common Law Marriages

2010-08-24T11:41:00.000-07:00

Common law marriages are those that occur in an unofficial manner but that may be recognized in certain situations and places. Common law marriages can occur only in certain states. There are also likely to occur in countries outside the United States that have common law marriages, too.

However Arizona does not have common law marriges.

Moreover, Arizona has a specific statute relating to common law marriages:

Arizona Revised Statute §25-111 states as follows:

A. A marriage shall not be contracted by agreement without a marriage ceremony.

B. A marriage contracted within this state is not valid unless all of the following occur:

1. A license is issued as provided in this title.

2. The marriage is solemnized by a person authorized by law to solemnize marriages or by a person purporting to act in such capacity and believed in good faith by at least one of the parties to be so authorized.

3. The marriage is solemnized before the expiration of the marriage license.

C. The requirements of this section do not apply to the conversion of an existing marriage that is valid in this state to a covenant marriage that complies with the requirements of section 25-902.

As you will note above, the statute states that for a marriage entered into in Arizona, certain requirements must be met. Specifically, Arizona requires a ceremony, license and an authorized person to conduct the ceremony (or at least believed to be authorized). Thus, you cannot marry via the common law method in Arizona. However, if a couple was legally married under the common law in another state, Arizona will recognize that marriage.

Typical, requirements for common law marriages in those states that recognize them may include:

1. The couple must hold selves out as married.

2. Continuous cohabitation by the couple.

3. The couple must meet all other requirements to marry in that state, for example:

a) No same sex marriages (a subject getting a lot of attention of late).

b) Age requirements must be met.

c) Neither party can be married to someone else.

d) No violations of a state's specific laws, such as those in Arizona Revised Statute §25-101.

To summarize:

1. No common law marriages can occur in Arizona.

2. If a person has a common law marriage in another state, Arizona
may recognize it.

3. Evaluating the legitimacy of a purported common law marriage means looking at the law of the jurisdiction where the marriage occurred.

If you have a common law marrige we suggest that you speak with an attorney for legal advice before proceeding with your divorce, legal separation, or annulment so that you may discuss your legal rights.

Do I need a last will and testament?

2008-08-27T11:55:00.000-07:00

It's never too early or too late to begin thinking about a last will and testament. You will want to ensure that you have provided instructions regarding the distribution of your assets.

Below is a decade-by-decade guide of what you should think about as you plan your estate.

Your 20s:

If you are in your 20s, this is the time to build the nest egg. You will want to consider putting aside a small amount each month (5-10% of your income) in an IRA for your retirement. Though it may not seem like much now, remember that this money can compound from hundreds to thousands and potentially to hundreds of thousands. It is key to remember to name beneficiaries for your accounts and keep them updated.

You probably own a car. You may have bought your first home already. Take some time to write down your assets, big and small, and make a list of who you would like to receive those things should something happen to you. Once you have your list of assets, you can create a will so that you can ensure a quick distribution of your assets.

Your 30s:

It's likely you've bought a house, gotten married and had children. With all these milestones, you will need to make sure that you have a last will or living trust in place to take care of your family and protect everything you have been saving. Once you have children, it is especially critical to create a last will so you can name a guardian for your children should something happen to you.

If you have amassed substantial assets by your thirties you may want to consider a living trust, which can help assure a fast distribution of your assets, avoid unnecessary taxes, and keep your wishes private.

You will also want to consider creating a living will and durable power of attorney in addition to your last will; these documents will enable you to name someone to take care of your financial affairs and make medical decisions if you become incapacitated.

Your 40s:

It is definitely time to sit down and create a last will or living trust. You have likely purchased a house and your children may be heading into junior high or high school. You need to have a list of your assets, including bank accounts, retirement funds, real estate, and others. Your first course of action should be to get beneficiary forms and make sure you have listed a beneficiary for each asset that allows you to do so: usually IRAs, 401ks, and life insurance policies. Take the time to create a will so that you can assign guardianship of your children and tie up any loose ends by properly allocating your property.

Chances are that you have acquired more substantial assets as well as many more responsibilities, like paying for a child's college education or getting your retired parents settled. You may also want to look into getting a life insurance policy to cover any large expenses like a mortgage or college tuition.

Your 50s:

You may still be helping children financially (college, weddings, grandchildren) as well as taking care of aging parents, so estate planning becomes even more crucial as you try to maintain your current responsibilities while preparing for your future.

You should periodically update it to make sure you've included all the beneficiaries—are there now grandchildren in the picture, for instance? Have you acquired or sold assets? Have you gotten married or divorced?

So what is next?

Follow these general guidelines and take the time to map out your estate plan by drawing up a will or living trust. Doing so will help ensure that your golden years will be as stress-free and enjoyable as possible. After all, you've earned it.

New Consequences for Failing to Pay Child Support

2008-06-17T12:07:00.000-07:00

ARIZONA -- 2007 Session Law – New Consequences for Failing to Pay Child Support

House Bill 2249, Chapter 246 (2007 Legislature)
Signed by Governor, June 13, 2007

PROFESSIONAL LICENSES AND CHILD SUPPORT PAYMENTS: A state law enacted last year has given the Arizona Department of Economic Security legal authority to suspend or revoke the professional license of someone who has deliberately failed to pay child support for more than six months. House Bill 2249 was passed by the legislature on June 11, 2007, and signed by the Governor on June 13, 2007.

The Division of Child Support Enforcement (DCSE) within the Department of Economic Security (DES) administers Arizona’s child support program. DCSE services include: a) finding noncustodial parents whose whereabouts are unknown; b) legally establishing paternity for children born out of wedlock; c) obtaining a court order indicating the monthly amount the noncustodial parent must pay to help support his or her child; and d) collection enforcement through income withholding, tax offsets, asset seizures and various other remedies.

The Department’s Division of Child Support Enforcement (DCSE) is getting the word out to professional groups, including physicians, physician assistants and real estate professionals that the DES will take appropriate action to collect past due payments, and that may include suspending or revoking the professional’s license to practice in Arizona. The obligor will not be issued a new license and cannot renew an existing license until the child support is paid or an arrangement for repayment is made (A.R.S. § 25-518).

Veronica M. Hart Ragland— Assistant Director of the DCSE — notes that about 95% of cases with child support obligations are delinquent. Many of those required to pay child support are self-employed and may hold a state of Arizona professional or occupational license or certificate. Licensing agencies, boards and commissions are participating in an automated reporting system that will enable the DCSE to contact those licenses who are delinquent. Ragland would prefer that those who owe child support fulfill their obligations without her division taking such drastic action. “While it is certainly not our goal to deprive people of the ability to work, we believe that our legal authority to revoke or suspend licenses will encourage compliance with the law to make child support payments,” Ragland says. For further information, or to make child support payment arrangements, individuals may contact DCSE Customer Service at (602) 252-4045, or outside Maricopa County, 1-800-822-4151.

Note: Information as appeared in the MCBA June Newletter

Bankruptcy Joint Debts and Property

2008-03-19T14:04:00.000-07:00

If I am discharged for a joint debt, what happens to the cosigner?

Your cosigner's liability for the debt is not effected by your discharge.
Cosigners are almost always joint and severally liable. This means the creditor can collect the entire debt from any person who has signed for the debt. If one of the signers receives a discharge, the creditor will still be able to collect the entire debt (plus interest, attorneys fees and collection charges, if the contract provides) from the other signers.

There has been a firm of collection attorneys aggressively pursuing me for a debt that was given to my ex-husband according to the terms of our divorce. Why are they coming after me when they know it's his debt?

The division of debt in the divorce decree affects only you and your husband. If your husband does not pay the bill, the creditor may come after you for the entire debt. You may have an action against your husband for his violation of the court order, but you may be no more successful in collecting from him may be no better than the creditor who has apparently decided that you are a better target.

Can I protect a cosigner?

If you file Chapter 13, a co-debtor stay automatically goes into effect prohibiting creditors from collecting consumer debt from co-debtors. In order to maintain this protection, your Chapter 13 plan must provide for payment of the entire debt and interest.

My husband and I divorced nearly a year ago and he was supposed to take over the credit cards part of the divorce agreement but he later found out that the bills were too much. I am unable to pay back the loans and credit cards. I have tried several times during the year to get him to go for bankruptcy but he will not do it. Can I do it and settle the debts for the final time?

Yes, you can file and discharge (or cancel) your debt under either Chapter 7 or Chapter 13 bankruptcy. However, if you and your husband are divorced, you cannot file bankruptcy together--each of you would have to file separately. If you ex-husband files, his debt would be eliminated, but creditors would still be able to pursue collection against you. You, of course, could file and seek to discharge your liability for those debts.

My wife and I are getting divorced but we have not gone through the process yet and I was wondering if I file for bankruptcy for myself will it affect her if our divorce has not been finalized yet?

Bankruptcy filed by one spouse can affect the other spouse if there are community debts or community assets. In Arizona, assets earned by either party during marriage are property of the marital community.

Will my filing Chapter 7 personal bankruptcy effect my spouse's or my own I.R.A. accounts, cash value life insurance accounts, or jointly owned land?

In general, your filing bankruptcy will not effect your spouse's property. In Chapter 7, the Trustee will be able to take property which you own if it is not exempt. The Trustee cannot take property of your spouse even if it is not exempt.

Unfortunately, the answer is not so easy if you own propety with someone else, including your spouse. Whether the property may take only your interest in the property, or all of the peroperty depends on the nature of your ownership in it.

Jointly owned property. If you own property jointly with anyone, including your spouse, the Trustee may take your share of the property. The Trustee cannot take the joint owner's share. However, dividing the property between the joint owner and the Trustee may require that the property be sold.

Community property. Community property is property which is acquired through the earnings of you or your spouse during marriage. It can be taken by the Trustee and used to pay debts for which the community is liable. Whether the community is liable depends upon state law.

The most common property owned jointly or as community property is a home. Since Arizona has a relatively generous homestead exemption of $150,000 , we do not often have to deal with the problem of the Trustee seeking to take a home.

You should be able to keep your SEP-IRA & 401K plans. In Arizona, IRAs are exempt--except for deposits made within 6 months before filing--and ERISA plans (which 401k and other retirement plans would ordinarily be) are also protected--if the documents that created them contain properly drafted spendthrift protection.

In Arizona, the cash value in your life insurance is exempt up to $20,000, if you name the proper beneficiaries and meet the other requirements to claim the exemption.

What Counts as Income for Calculating Child Support?

2008-03-10T13:30:00.000-07:00

By James Jennings
DiscountDivorcePro.com

What counts as income for calculating child support?

Usually gross income from the following† :

Salaries
Self-employment
Bonuses
Severance Pay
Worker’s Compensation Benefits
Unemployment Insurance Benefits
Wages
Income from a Business
Dividends
Pensions
Disability Insurance (including Social Security disability)
Rental Income
Annuities
Prizes
Royalties
Social Security Benefits
Commissions
Trust Income
Capital Gains
Recurring Gifts
Interest
Spousal Maintenance (alimony)

Gross Income does NOT include benefits from public assistance programs such as Temporary Assistance for Needy Families (TANF), Supplemental Social Security Income (SSI), Food Stamps, and General Assistance (GA); and, it does not include child support payments received.
†

† http://www.superiorcourt.maricopa.gov

Your Finances & Divorce

2008-03-02T11:47:00.000-08:00

By James Jennings
DiscountDivorcePro.com

Common financial mistakes of a divorce.

Financial victim:
If you suspect that your spouse is planning to divorce you. You should make copies of all important financial records. Making copies of bank statements, charge account statements, titles and deeds should be a top priority, if you think that your spouse may sell off a re-title marital assets. You should notify the holder in writing and acquire restraining order from the court. You should also watch out for cash in joint checking and savings accounts. I've seen many cases where these accounts have evaporated, and people have been left with no way to pay their bills. If these assets are taken, legal or forensic accounting fees could become very expensive.

Emotional attachments:

Try not to get emotionally attached to assets. This is a very common mistake that I have seen cost people more money than it should. Assets like your home or your pension make for emotionally charged debates during divorce negotiations. The fact of the matter is most people can't afford a house, and usually give a low priority to their retirement planning. A house is an asset that has a very low return on investment in most cases. You need to consider that in most cases, homes are a major cash expense because of the mortgage payments. Also don't forget the taxes, maintenance, upkeep, and electricity on a house.

Impact of taxes on your assets:
Consider the value of your assets, as it relates to your spouse on an after-tax basis. Don't make the mistake of not recognizing what Uncle Sam will take. Sometimes, when going through divorce, a financial planner or tax accountant can help you minimize the total tax you will pay. Don't forget you and your spouse are both liable for taxes due on joint tax returns.

Budgets:
Most people while they're going through a divorce or even after the divorce complain about not being able to pay their bills. It is important that you seek the help of a financial adviser to help you produce an accurate and complete budget that will help you after the divorce.

If you have a lawyer don't use them as a therapist, financial planner, or messenger:
Most divorce lawyers charge between $150 and $300 per hour. Lawyers are great for giving you legal advice. However, you should not use them to be your financial planners, emotional support, or career counselor. Most lawyers are not skilled in these areas. If you try to use them for these services you would end up more than likely paying them a lot more for these services, then you would if you hired people that were professionals in these fields.

Failing to develop and after divorce financial plan:
One thing, I think most people fail to realize is that it costs more money to operate two households than it does to operate one. Financial planning can help you transition from a married to a single lifestyle by prioritizing your financial goals. You should develop a realistic expectation and produce a good plan for the allocation of your financial resources.

Grounds for Divorce in a Covenant Marriage

2008-02-12T13:57:00.000-08:00

By James Jennings
DiscountDivorcePro.com

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.

Does equal visitation mean no child support?

2008-02-11T12:50:00.000-08:00

By James Jennings
DiscountDivorcePro.com

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.

Some Issues Concerning Residency

2008-02-05T08:29:00.000-08:00

By James Jennings
DiscountDivorcePro.com

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.

Misconception Regarding Legal Separation

2008-02-04T13:40:00.000-08:00

By James Jennings
DiscountDivorcePro.com

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.

Discloser Statement

2008-02-01T11:06:00.000-08:00

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

Taxes and Income Tax Refunds

2008-01-29T13:22:00.000-08:00

If a debtor is currently owed a refund for any year prior to the year of filing bankruptcy, the estate is entitled to 100% of the proceeds to which the debtor would be entitled. If a single person or a married couple files bankruptcy, that typically means 100% of the refund goes to the estate, but if a married person files individually, typically 50% of the refund becomes property of the bankruptcy estate. The non-debtor spouse would be entitled to keep 50% of the refund.

PROBLEM – Tom files a bankruptcy on January 15, 2008, but his wife does not file bankruptcy. They have not yet filed their 2007 federal income tax return, but when they do file on April 15, 2008, they realize they will get a $2,000 refund. Since the wife did not join Tom in filing bankruptcy, only half of the refund ($1,000) becomes bankruptcy estate property. Every rule has exceptions, so you need to discuss your specific tax scenario with a bankruptcy lawyer prior to filing for relief.

STRATEGY- If practical, file bankruptcy AFTER receiving and consuming your income tax refund. A debtor should not spend a refund on the purchase of new assets because those assets will become property of the bankruptcy estate. The funds should be used to pay ordinary and necessary expenses. Bankruptcy clients often flood law firms in the second quarter of the year because they use their tax refund to pay for their bankruptcy fees and costs. This is one of many perfectly acceptable uses of the tax refund.

For more information: http://DiscountDivorcePro.com

When does a state have jurisdiction to modify a custody order for another state?

2007-10-03T14:46:00.000-07:00

Wednesday, October 03, 2007

By James Jennings
Discount Divorce
DiscountDivorcePro.com

When does a state have jurisdiction to modify a custody order for another state?

The guiding principle is that once the Court has made an initial custody order under the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA), that court has exclusive, continuing jurisdiction over the case. Continuing means that the case is kept open; exclusive means that no other court has the authority to act in the case. Hence a court in California cannot modify a child custody order issued in Arizona if Arizona has exclusive continuing jurisdiction because of the compliance with the UCCJEA.

Another state can modify Arizona’s order only if Arizona loses its exclusive continuing jurisdiction.

There are 2 circumstances under which a state can loose its exclusive continuing jurisdiction:

First when the child and its parents no longer reside in the State.

Second, when the court with exclusive continuing jurisdiction determined that the child and parents do not have a significant connection to the state and that substantial evidence is no longer available in the state concerning the child’s care, protection, training, and personal relationships.

Suppose, for example, that California issued an initial custody order and has exclusive continuing jurisdiction. A dissatisfied parent then takes the child to Arizona. Can an Arizona court modify the California order? Not if one of the Parents remains in California. The dissatisfied parent would have to go backed to California to modify its order or ask the California court to declare that the child and parents do not have a significant connection to California and that substantial evidence concerning the child is no longer available in California.

An exception exists when there's an emergency, but only on a temporary basis. A state court with temporary emergency custody jurisdiction can modify the custody decision of any other court if the child is present in the state and the child has been abandoned or if there is an emergency requiring protection of the child because the child, a sibling, or parent is mistreated or abusing or threatening mistreatment or abuse. If an Arizona court concluded that it had temporary emergency jurisdiction because of abandonment or violence in Arizona, the Arizona court could issue a custody order that would have the effect of modifying the California order. However, Temporary jurisdiction is temporary. A Court with the home state-California in this example-can step in and change the temporary emergency custody order of Arizona.

There is another circumstance in which California might yield to Arizona. The state with proper custody jurisdiction under of the UCCJEA can always make a determination and another state is a more convenient forum and thereby relinquishes its jurisdiction. If California decides that it is an inconvenient forum and that Arizona is a more convenient forum, Arizona would thereby obtain full jurisdiction to act in the case.

If one parent has dirty hands, a Court might decline to exercise its jurisdiction if doing so would not harmed child. Suppose, for example that a parent engages in plain forum shopping by moving a child from state to state for the sole purpose of trying to find a friendly court. In the unlikely event that this parent eventually finds a court that has jurisdiction under the UCCJEA, this Court can decline to take the case because of the Parent's dirty hands. But the court will make such a decision only if it determines that the refusal to take the case was not harmed child.

Church Annulment

2007-09-27T13:11:00.000-07:00

Thursday, September 27, 2007

By: James Jennings
Discount Divorce

http://www.DiscountDivorcePro.com

CLIENTS OFTEN ASK me, what is the difference between a civil annulment (a declaration by a state court that a valid civil marriage never existed) and a church annulment (a declaration that sacramental marriage was never created). This tends to confuse people sometimes. The differences are as night is to day. A superior court judge grants a civil annulment and the Roman Catholic Church grants a church annulment.

The Roman Catholic Church has its own separate system of annulment. The church does not recognize divorce. Nor does it recognize annulments that are granted by civil courts. Having a civil annulment does not automatically lead to a church annulment. In the eyes of the church, the only way to terminate a marriage (other than by death of one of the parties) is by seeking a Petition of nullity in a canon law church court, which declares the marriage "Null ".

Technically, the church does not dissolve the marriage. Rather it makes a judicial finding that a valid sacramental marriage was not created or entered on the wedding day. This will allow a Catholic to remarry in the church, to receive communion, and to participate in all the other sacraments. Full participation is denied a Catholic who remarries without obtaining a church annulment-even if he or she obtained a civil annulment.

The main ground for a church annulment is defective consent, usually due to "Lack of due discretion" or "Lack of due confidence." The primary focus of a church court is whether the parties entered the marriage through a free act of will with the intention to except the essential elements of Marriage: permanence, fidelity, and conjugal love that is open to all. Among the factors that can interfere with this intention and are duress, fraud, conditions to one's consent, and physiological problems such as mental illness. †

To initiated church annulment, the Petitioner pays a processing fee (approximately $500) in order to have a formal hearing presided over by a tribunal judge. An advocate presents the case of the Petitioner seeking the annulment. Also present is a "Defender of the Bond ", who monitors the proceeding to ensure that rights are protected and church law properly observed. The hierarchy in Rome has criticized American bishops for allowing too many church annulments. The 119 dioceses of the United States have granted over 50,000 annulments each year. This constitutes 80 percent of the annulments granted by the church worldwide. ‡

So you can see, church annulments and civil annulments are not related in any way. Moreover, I have seen cases where two people have obtained a civil divorce but have later been granted a church annulment. Since there is a separate and distinct separation of church and state powers as granted in the U.S. Constitution this is possible.

For more information on church annulments and procedures contact your local pastor for more information.

† Rev. Michael Smith Foster, How is a Marriage Declared Null?
(April 20, 1997) (site visited Aug. 22, 2000).

‡ William P. Statsky, Family Law 5th Edition 169 (West Thomson Learning 2002).

Fault Verses No-Fault Divorce

2007-09-27T13:09:00.000-07:00

Thursday, September 27, 2007

By James Jennings
Discount Divorce

http://www.DiscountDivorcePro.com

In order to obtain a divorce that dissolve the marital relationship, specified reasons must exist. These reasons, called grounds, are spelled out in state statutes. The two categories of grounds are no false and fault. The major no fault grounds are as follows:

Living apart
Incompatibility
Irreconcilable differences, irremediable breakdown.

In Arizona however, there is only one ground for a no-fault divorce, the marriage is irrevocably broken.

When a divorce is granted on a no-fault ground, material misconduct is, in most respects, irrelevant. The divorce statutes might provide that the "Evidence of specific acts of misconduct shall be improper and inadmissible, except where child custody is in issue and such evidence is relevant." a divorce sought on a no-fault ground, therefore, will not involve cross-examination designed to ferret out a blameworthy party. No fault grounds have made such testimony highly unlikely.

This does not mean, however, that fault grounds have been abolished. They still exist in most states. The ability of no fault grounds, however, and their ease of use have meant that the fault grounds are often not used.

There is one notable exception to the decline in the use of grounds. A number states are experimenting with a new marriage option called covenant marriage. Couples in states like Arizona have a choice between conventional marriage and a covenant marriage. Divorce from conventional marriage is no fault, whereas divorce from a covenant marriage requires proof of material fault such as adultery, physical or sexual abuse, and abandonment. Spouses in a covenant marriage must also make a commitment to obtain counseling before and during the marriage. Reformers hope that the availability of this new option will encourage couples to engage in more serious planning before entering the state of marriage.

For many years, fault grounds were the only grounds for divorce, the premise being that marriage should not be terminated unless there was evidence of serious wrongdoing by one of the spouses-blame had to be established. Many believe that such stringent divorce laws would help prevent the failure of marriage. In colonial America, it was common to deny the guilty party the right of remarriage if the divorce was granted. The payment of alimony was sometimes used to punish the guilty spouse rather than as a way to help the other become reestablished. In short, guilt, wrongdoing, and punishment were predominant themes over divorce laws.

During this period of fault-based divorce, the system was frequently criticized as irrelevant and encouraging fraud. Over 90 percent of divorces were uncontested, meaning that there was no dispute between the parties. Since both spouses wanted the divorce, they rarely spent much time fighting each other about whether adultery, cruelty, or other grounds existed. In fact parties often lied to the courts about the facts of their cases in order to quickly established that fault did exist. While such conclusion was obviously illegal, the parties were seldom caught. Since both sides wanted the divorce, there was little incentive to reveal the truth. The system also encouraged migratory divorce, where one of the parties would migrate or travel to another state solely to take advantage of its more lenient divorce laws.

Not everyone, however, is happy with the shift to no-fault divorce. There are conservatives who regret that marriage is now so easy dissolve. No-fault divorce has also removed an emotional outlet. There are some clients who want and need the opportunity to tell the world about the abuse they have received from their spouse. They become frustrated when they learned that they cannot do so in the divorce court. In this sense, no-fault divorce presents some spouses from obtaining emotional closure through divorce.