Angela Hallier's Ask Angie column has run in publications for over five years. The following categories contain some of the most frequently asked questions from her column.

Property

• Access to Jointly Owned Property
• My Husband and I own a business. Since he filed for divorce he has refused to allow me on the business premises. Not only do we have personal items stored there that I need to inventory, but I think he is being untruthful about the value of the on-site equipment owned by the business. How can I gain access to the property?
• The rules governing divorce cases in Arizona allow a party access to land or other premises in order to inspect, appraise, inventory, photograph, or otherwise examine the property (or objects on the property) if it serves a litigation purpose. You, your attorney, an expert acting on your behalf, or all of you may perform the inspection. Many times the parties and/or their attorneys can agree on a date and time for the inspection to occur. If they cannot, the inspection can be accomplished by providing advance written notice to your husband of the date and time on which the inspection will occur, and providing a description of what will be inspected. Your husband has the opportunity, however, to object to the request. If he does, a judge will have to decide if you are entitled to perform the inspection. If providing your spouse advance notice would allow him to hide items or otherwise interfere with the inspection process, consider requesting that the judge in your case issue an emergency order allowing the inspection to go forward without advance notice to your husband.
• My wife and I cannot agree on who should have custody of our children. She has had issues with depression and anxiety during our marriage, and I am concerned that with the added stress of the divorce she is not mentally stable enough to primarily care for our children. What can I do to find out if she is okay?
• When the mental, physical, or vocational condition of a spouse is in question, the court may order that person to submit to a physical, mental, or vocational evaluation by an expert you designate. Issues surrounding a person's mental or physical health, or their ability to work, often arise in the context of custody, child support, or spousal maintenance disputes. Your attorney should be able to advise you if the issues in your case warrant such an evaluation, and assist you in identifying an expert who can perform the evaluation and testify at your trial if necessary. Unless otherwise ordered by the court, the initial cost of the evaluation will be your responsibility, although the court can reallocate that cost at trial if good cause exists to do so.
• My Wife just filed for divorce and wants me to move out of our home. Do I have to? When will I see my children? If I move out do I have to pay the house bills?

• One of the most difficult parts of the divorce process can be the time between the filing of the divorce petition and the entry of the Divorce Decree. Issues often arise during this time of transition that do not seem to have simple answers. Who will have temporary possession of the house? If one spouse moves out where will they live? How will two households be supported on the same income that used to support one? How will parenting time be divided? Who will pay what debt obligations? Should one spouse pay the other spousal maintenance or child support? How will attorneys' fees be paid? Unless you and your spouse can continue to reside together and maintain your marital status quo while your case is pending, temporary orders addressing the above issues may be needed. These orders can either be agreed upon by you and your spouse, or the court can issue such orders after a hearing.

  If such orders are needed, the sooner they are in place the better. Establishing temporary orders provides each spouse with a sense of certainty during a period of relative uncertainty, allowing you and your spouse to focus on the ultimate goal of resolving your case amicably and without a formal trial. Such orders many times result in less attorneys' fees being incurred overall, and may make issues less complicated at the conclusion of your case. While such orders define the rights and obligations of both spouses while the case is pending, they are not permanent and are not intended to prejudice the rights of either spouse at future court hearings. However, temporary orders certainly may establish a manner of operating that could have a bearing on the ultimate results obtained in your case.

  In addition to the type of temporary orders discussed above, either you or your spouse may request the court also order an equal division of your liquid assets (cash, bank accounts, and so on) prior to your case being fully resolved. The court must divide such liquid assets if one spouse requests, unless the court finds there is not "good cause" to do so. A court might choose not to divide liquid assets at the beginning of a case if a dispute exists as to whether the asset is separate property or community property, or if one spouse might ultimately receive more than one-half of the asset in order to equalize the award of property to the other spouse, such as in the case of a business or home equity buyout. Talk to your attorney about how best to structure temporary orders in your case. If you believe they will be needed, request the court set a hearing to address them as soon as possible. It can unfortunately many times take weeks, if not months, to obtain a court hearing to address the issue of temporary orders.

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• Compensation for Your Spouse's Waste of Community Assets
• I am getting a divorce and just found out my Husband has gambled away most of our joint savings without my knowledge. Will I be compensated?

• Yes. You will likely receive more assets than your Husband in your property division to make up for one-half of what he spent. (One-half of the money he spent was "yours" and one-half was "his" under community property law principals.) In Arizona, the court can consider "excessive or abnormal expenditures, as well as the destruction, concealment or fraudulent disposition of community assets" when dividing the community estate. Such expenditures are globally referred to as "waste." If there are not enough other community assets to compensate you for your share of the waste, you will be awarded a money judgment against your spouse. Findings of waste can be based on a spouse damaging or losing community property, making significant withdrawals from a retirement or other account with no accounting for the expenditures, or spending on an extra-marital affair or illegal drugs. A decrease in the value of a community asset (like a house or a business), if caused by a spouse's destruction, fraud, or "abnormal" actions, could also be considered waste.

  If you are the spouse claiming that waste occurred, it is initially your burden to show that, on its face, such spending appears to meet the legal definition of waste. If you are able to do so, it becomes your spouse's burden to show that the spending was not waste. Your spouse can meet that burden by showing that the monies were spent for the benefit of the community (for example, paying community debts), were spent with your acquiescence or approval, or the spending was not excessive or abnormal based on the historical spending habits or lifestyle of your family.

  I once had a case where one spouse sold the other spouse's clothes at a garage sale. The court ruled that the sale of the clothes was waste, and ordered the holder of the garage sale to pay to replace all of the clothing sold. Beware of vengeful actions, and account for your spending if you are using community accounts while your divorce case is ongoing to avoid a claim of waste being made against you.

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• Gifts Between Spouses
• My Husband frequently gave me nice jewelry during our marriage for special occasions. Much of the jewelry was very expensive. We are now getting divorced and he wants one-half of the value of the jewelry. Can he claim an interest in the jewelry?

• All property acquired be either you or your Husband during marriage is community property, except that acquired by gift or inheritance. When it comes to jewelry, the issue of whether an item was a gift or a community investment will turn on the circumstances surrounding the giving and receipt of the jewelry, and sometimes as well on the value of the jewelry in question. The fact you wear the jewelry is not sufficient for a legal finding it was a gift to you. An analysis of whether a gift occurred from one spouse to the other is the same analysis that would be used if the two of you were strangers. There must be a clear intention by one spouse to divest his or herself of any interest in the property, the property must be actually given or delivered to the other person and possession or control of the property by the receiving spouse must occur. Thus, the fact the jewelry was given to you on special occasions is helpful in establishing the legal requirements of a gift. On the other hand, sometimes jewelry or loose stones are purchased as an investment for the community. If your Husband can prove this was true with regard to any of the jewelry in question, he is entitled to one-half of the value of such items.

• My Wife wanted a classic convertible to drive for fun, so we purchased one for her to drive on the weekends. She picked it out and finalized the purchase without me, paying for it from one of our joint accounts. She also put the title in her name alone. We are now getting divorced and she says the car is hers because she picked it out and is the one who drives it. Is the car her sole and separate property?
• No. The name in which an asset is titled during the marriage does not define whether it is "sole and separate" or "community" property. In your case, the car was purchased during the marriage with community funds, and is therefore presumed to be community property. Community property is divided equally in a divorce. The elements of a gift from you to her are not present, and the fact she primarily uses the vehicle does not make it hers. Therefore, the presumption of community property has not been overcome.
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• Marital Estate Value
• I have been kept in the dark about our finances during my marriage. Now I am getting divorced. How can I find out what we have?

• There are many ways to obtain such information during the "discovery" phase of your divorce case. In Arizona, court rules require mandatory disclosure by each side of any information that may impact their case. This means that your spouse must voluntarily provide you all such information, even without a specific request. Unfortunately, in many cases, relying on your spouse's good will in adhering to this rule is not enough. If informal requests for information under this rule go unanswered, or you do not feel confident you are receiving accurate information, a good starting place for identifying assets is your personal tax returns. Your returns can be of assistance in identifying property and accounts, or assets sold during a given tax period. If your spouse is not forthcoming with copies of returns, or you believe the returns produced are not the actual returns filed with the IRS, you can request copies of the returns directly from the Internal Revenue Service. Not only personal tax returns, but any corporate and partnership returns should be reviewed.

  Court issued subpoenas are also frequently used as a method of gathering information. A subpoena, listing information or documents you want to receive, can be issued to a person or entity not a part of your lawsuit. The recipient of the subpoena has ten business days under court rules to produce the information requested. Typical examples are subpoenas to a financial institution or employer. Even if you do not know the exact accounts which exist, a subpoena issued to a financial institution listing your spouse's name and social security number will be sufficient to obtain, in most cases, information about all accounts on which that social security number or name appears. Subpoenas to employers typically request information such as pay history, terms of employment, bonus information, and employee benefit information, including retirement, pension, employee savings, and stock option accounts.

  Other discovery tools include Interrogatories (written questions to your spouse); Requests for Production of Documents (written requests for the production of certain documents); Requests for Admissions (written questions to your spouse asking he or she to admit certain facts as true); and Depositions (oral question and answer sessions at which your attorney asks questions of your spouse, an expert, or sometimes a third party in the presence of a court reporter, from whom a written transcript of the questions and answers can be obtained). Responses to all of the above are given under oath.

  In those cases where a spouse is purposefully trying to hide assets or has engaged in pre-divorce planning, the hiring of outside experts might be necessary in order to obtain the information you seek. Private investigators, computer forensic specialists, and experts in asset tracing are among those you may want to consider.

  Making sure you feel you have obtained all information material to your case is important. Only then can you assess your settlement options, obtain advice from your attorney as to a likely outcome if you proceed to trial, and prepare for trial if a settlement cannot be reached. Make sure you give your attorney any information you have regarding your assets, even if it is just a hunch.

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• Real Property Transfers in a Divorce
• I was awarded the marital residence in my divorce. Now my spouse refuses to sign a deed transferring her interest in the home to me. What can I do?
• To avoid this problem, deeds and other documents transferring property from one spouse to the other should be signed at the time all other settlement documents are signed. However, if that did not occur, and later your spouse refuses to sign such a document, you have a number of remedies available. Most decrees contain language ordering each party to "execute any and all documents necessary" to transfer property as ordered in the Decree. If this language exists in your decree, you should remind your spouse they are under a court order to sign the deed you have given them; most people don't want to be taken to court for refusing to abide by a court order. A simpler solution exists if your Decree contains language indicating the Decree itself is deemed to be a "sufficient deed, conveyance, assignment, or transfer" of the property allocated therein. In such a case, and if your Decree contains a legal description of the property at issue, you can record a certified copy of your Decree at the County Recorder's office. Such a recording will transfer title to you and has the same effect as if your spouse had signed the deed. (I have also known the Department of Motor Vehicles to accept a certified Decree as a valid transfer of title to a vehicle when the vehicle's VIN number appears in the Decree). If your Decree does not contain sufficient language to be recorded, petition the court for an order divesting your former spouse of ownership rights in the property at issue. The Arizona Rules of Family Law Procedure specifically allow for such an order, and recording the order operates as a legal transfer of ownership in the property.
• Our home is being sold but my Husband and I are not yet divorced. I am worried about splitting the sales proceeds right now as my Husband may owe me money for our business when we divorce. What can I do?
• You need to provide specific escrow instructions to the title company not to issue a check disbursing the sales proceeds until all matters are resolved. Such instructions will be followed if contained in a court order, but often title companies will abide by instructions contained in a letter signed by either you and your spouse or your respective counsel. Further instructions regarding disbursement of the proceeds can be provided to the title company at a later date. If a title company receives specific instructions regarding the amounts to be paid to you, your spouse, or a third party, separate checks will be issued. Such instructions or orders are also important in situations where your property will not be sold until after the divorce, and you want to ensure your former spouse doesn't receive a check made payable to both of you, forge your name, and spend all the money. Believe me, it happens.
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• Retirement Plans
• How will my retirement plan or other tax-deferred assets I have accumulated during my marriage in connection with my employment be divided in my divorce?

• Any vested, tax deferred assets acquired during marriage, for example pension, retirement, or 401(k) plans, are considered community property and, therefore, are subject to being equitably divided in a divorce in Arizona. ("Vested" means your right to the benefit or asset will not be forfeited if your employment relationship terminates before your retire.) If part of your plan assets or entitlements were accumulated prior to your marriage, but contributions continued during the marriage (including employer contributions), only the assets or entitlements accumulated during the marriage are considered community property.

  Many tax-deferred plans connected with employment require a Qualified Domestic Relations Order (QDRO) in order to be "divided". A QDRO is a separate order entered by the judge at the time of your divorce which directs the administrator of your plan to divide the assets according to the decree. A QDRO allows such division without penalty or taxes which might otherwise occur if monies were withdrawn from the plan outside of a divorce context.

  Depending on the type of plan being divided, your spouse may receive his or her share of the plan immediately, or they may have to wait until you are allowed to begin receiving distributions from the plan. Other tax-deferred accounts, whether acquired in connection with your employment or not (such as an IRA), may not require a QDRO, but can still be divided without penalty or taxation if divided in connection with a divorce.

  Another common benefit subject to division in a divorce is employee stock or stock options. Again, if the option grant occurred during the marriage, the options or stock purchased with the options are community property. While stock plans may be divided via a QDRO, other provisions may need to be made for the division of unexercised options as many companies do not allow their transfer.

  Because the granting, vesting, and exercise of such options vary greatly between companies, because the grants may occur for different reasons, and because the reason for the grant may affect whether the options belong to the community, you need, as always, to consult an attorney. And remember, if you want to keep your plan assets in exchange for some other community asset, you must remember to "tax effect" the value of the plan, stock, or stock options you are receiving. The $100,000 in your pre-tax 401(k) plan is not equal to the $100,000 equity in your marital residence.

• I am 49 years old and my wife (who does not work) filed for divorce last week. We had planned I would take advantage of my company's early retirement plan and retire at age 50. Will I still be able to do so?

• The Court will not prohibit you from taking the early retirement you desire. However, in determining your income for purposes of child support or spousal maintenance (if such payments are applicable to your case), it is possible that the Court will attribute to you the income which you would have continued to earn had you not taken early retirement. How the Court views your retirement will also be impacted by the value of the assets that will be divided between you and your wife. If your post-retirement assets and cash flow, absent the divorce, would have allowed you and your wife to approximate your pre-retirement lifestyle, it is much less likely the Court will attribute to you continued employment income. Because the assets accumulated during marriage (including retirement benefits) will be divided equally, a substantial asset award to your wife could negate any spousal maintenance obligation you might otherwise have. On the other hand, if your early retirement will result in a significantly lesser standard of living, made even greater by the need to maintain two separate households, the Court will be more likely to treat you as earning your present level of income, even if you choose not to work. The Court will also consider whether you intend to obtain income from other work endeavors, your wife's agreement (if it existed) with your early retirement plan, and your wife's ability to generate income. And, even if the Court does not impute income to you, if you still have children at home who are minors, the Arizona Child Support Guidelines will be applied and you may still be required to pay child support on behalf of those children.

  As you already have a divorce case pending, you will want to obtain the advice on the specifics of your financial circumstances before you make any major decisions. You should speak with an attorney and an accountant or financial planner for advice on making the best decisions for your own financial future.

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• Housing Solutions During Divorce Process
• My husband and I want to get a divorce but neither of us can afford to purchase another home until our home sells. I am concerned about the length of time it will take to sell our house given the current economy. What can I do?

• Unfortunately, many couples are facing this same dilemma. Your options are limited and depend on you and your spouse's ability to cooperate during the transition period of your divorce. Here are some ideas:

  The most cost effective plan is to continue to reside together in the home until your divorce is finalized and/or the house sells. This will likely only work if your house is large enough for you each to establish your own bedroom space and if you are able to keep open hostility out of your day- to-day living. You should agree on a set of house rules to minimize any conflict that may arise by your continued co-habitation. If you have minor children, you should also agree on rules for their care and establish some separate parenting time during which each of you can engage in activities with them. Continuing to reside together until your home sells is a common arrangement given the current market.

  If you have children, and if both of you have family or friends in town where you can stay on a part time basis, you may consider rotating in and out of the home during your respective parenting time with the children. That way only one parent is in the residence at a time, you do not have to continue to live together, but the children are able to maintain stability by staying in their own home.

  If you absolutely cannot live in the same home, one of you will have to move in with friends or family or rent a residence elsewhere. This may require that you cash in some investments or other assets to fund a second living space while you wait for your home to sell.

  As a last resort, you can reduce the price of your home to a level that will accomplish a quick sale. In order to weigh the economic benefit or detriment of a price reduction, you should calculate the monthly carrying costs to maintain the home, estimate the number of months you might need to stay in the home to obtain your preferred sales price, and assess any reduction in capital gains tax that would result from a sale at a lower price. You should also assess the emotional cost to you of waiting for the home to sell.

  There are of course other solutions that might exist based on your specific situation. You should contact professionals in this area to discuss your options (attorneys, realtors, accountants, tax advisors).

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Custody/Visitation

• Custody Issues
• My Wife and I are separating. What should we consider in discussing custody of our children?

• There are two separate types of custody arrangements to discuss. The first is whether joint or sole legal custody of the child is most appropriate. Sole legal custody refers to an arrangement whereby one parent has the sole right to make major life decisions for the child. With joint legal custody, neither parent's decision-making rights are superior. Parents agree to cooperate in making major decisions on behalf of the child, and commit to discuss such decisions in the areas of education, religion, and medical treatment. In Arizona, the most common legal custody arrangement is joint legal custody (and seemingly most preferred by the courts), although no presumption exists favoring one arrangement over the other. Commonly cited studies reflect that children benefit most when their separated parents cooperate in their upbringing.

  In addition to legal custody, a schedule of parenting time (formerly referred to as visitation or access) with each parent must be established. Special schedules for holidays and vacation time should also be agreed upon. Parenting time schedule considerations should include the parents' work schedules, the schedules and ages of the children, and the proximity of the parents' homes. Parenting plan suggestions which consider a child's age and developmental needs can be found at www.supreme.state.az/dr/text/modelptplans.htm

  The overriding concern and legal standard in all custody related issues is the best interests of the child. In most cases, that means frequent and meaningful contact with both parents. In rare cases, minimal or supervised contact may be best if a parent is unable to have a safe and healthy relationship with their child.

• My Husband and I have agreed to joint legal custody of our children. I understand that means we will make joint decisions about major issues in their life. What should we do to make sure joint custody works into the future?

• A well-drafted parenting agreement will include many provisions providing guidelines to parents for continuing to work well together. Of utmost importance, you need to focus on continued positive communication.

  In order to do that you need to keep each other timely informed of all important things in the children's lives. This would include their progress in school, any health concerns, socialization issues, extra-curricular activities and the like. Keep each other advised, well in advance, of doctor's appointments, parent-teacher conferences, birthday parties, and other events of the children particularly where parent involvement is invited. If you would want to know about something, assume the other parent does too.

  You also need to keep each other updated on your own contact information including home, work and cellular telephone numbers, and e-mail addresses. If you will be going out of town, whether or not the children will be going with you, provide each other with detailed itineraries including specific contact information.

  Remember to avoid involving the children in issues of financial or other disputes that may arise between you. Those are adult issues and as loving parents you will want to avoid burdening the children with them. Be certain to continue to speak only in positive terms regarding each other, your co-parent's friends, and family members.

  Of course, regardless of a parent's best intentions and continued focus on the ideas mentioned above, significant disputes may arise. Most parenting agreements will provide a procedure to resolve these difficulties. Typically, that involves the participation of a neutral third party such as an agreed upon mediator or a court appointed Parenting Coordinator to help you and your co-parent work through anything on which you disagree. A Parenting Coordinator can make a recommendation to the court regarding resolutions of disputes. The Parenting Coordinator's recommendations will be adopted as orders of the court unless one of you makes a timely objection.

  Your agreement for joint legal custody already demonstrates your commitment to the best interests of your children. Keeping an open mind and open channels for communication will take you a long way in the success of your plan and the best interests of your children. Good Luck!

• My marriage of nine years is ending. My Wife's son was only a year old when we married. I have raised him as my own son, even though I never formally adopted him. Is there any chance I can get custody of him in our divorce?

• Possibly. In Arizona, a child's legal parent is defined as a biological or adoptive parent whose parental rights have not been terminated. However, individuals who have acted in a parental role to a child, whether biologically related to the child or not, may under certain circumstances petition for and receive custody and/or visitation with the child. To qualify, the person must have been treated as a parent by the child and have formed a meaningful parental relationship with the child for a substantial period of time. This is referred to as an in loco parentis relationship. In addition, one of the following circumstances must exist: (1) one of the child's legal parents is deceased (or if you are seeking visitation, that they have been missing at least three months); (2) the child's legal parents are not married to each other at the time the petition is filed; or (3) there is a pending proceeding for divorce or legal separation of the legal parents at the time the petition is filed. If an in loco parentis relationship and any one of the three circumstances listed above exists, a step-parent, a grand-parent, another relative or even someone unrelated to the child by blood or marriage qualifies under Arizona law to seek custody or visitation.

  Even if you are allowed under Arizona law to file such a petition, your right to custody or visitation is not automatic. In order to obtain visitation with the child, you must show it will be in the best interests of the child for visitation to occur. It is much more difficult to obtain custody than visitation. In order to obtain custody, your petition must allege facts from which a court could conclude 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. If that hurdle is passed, you still must show it would not be in the child's best interests for a legal parent to have custody. Thus, an award of custody to a non-legal parent typically only occurs in situations where neither legal parent is physically available to care for the child (for example the legal parent is incarcerated or missing) or the legal parents have drug, alcohol, behavioral or emotional issues that would make it potentially harmful to the child to remain or be placed with them. If either one or both legal parents have behaved in such a way that the state has instituted a dependency action with regard to the child, you will need to address the issue through the juvenile court first rather than through an in loco parentis petition.

  While a grandparent might qualify under this statute to have parenting time or custody of their grandchildren, grandparents may also qualify under the grandparent visitation statute to obtain their own court-ordered visitation even if they have not formed an in loco parentis relationship with the child.

  Now let me debunk some common urban myths about child custody:

  1. "I won because I am called the primary parent in the parenting plan." While it is not uncommon to refer to one parent as the "primary residential parent", this term in and of itself has little meaning under Arizona law, even if the child does live with you primarily, other than to define which person can apply for public assistance on behalf of the child.
  2. "I want full custody." There is no such thing.
  3. "I heard at age 12 my child can decide where he wants to live." No, there is not a magic age at which a child gets to make such choices. However, your child's wishes can be considered by the court.
  4. "I can move back to my hometown in Indiana with my child whenever I want because I have sole legal custody." Wrong. A specific procedure of notice applies if you want to move, regardless of custody arrangements, and the move can be objected to by your former spouse. In that case, a court will decide whether you can move with your child.
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• Holiday Parenting Tips
• Naughty or Nice?
• This month, I'm going to provide you with some tips I've gathered from my experience as a family law attorney on how to make the best of the holidays for your children if you are divorced, separated or a part of a step-family. Here are some ideas on how to make (or break) the holiday cheer for the children in your family:
• Holiday Time-Sharing

• Naughty: Make sure you let your child know how upset you are that they will be celebrating any part of the holiday without you. Examples of this naughty behavior are: "I will miss you so much on Christmas Eve - I am going to hate being all alone." Or, "You have to go to your dad's for part of Hanukkah so we won't get to be together." Or how about, "You won't get to go to Grandma's over the holidays because the Court ordered you to go to your mom's." These messages to your child really say that neither they nor their other parent who they very likely love as much as you deserve to enjoy the holidays and they should feel guilty that they won't be with you.

  Nice:"You're such a lucky child, you're going to get to celebrate Christmas twice!" Or, "Your mother and I have come up with a plan so that you can see both of us and have two holidays with two families that love you very much and we're all going to have a lot of fun!"

• The Giving of Gifts

• Naughty:"Don't you dare bring gifts your mother has given you into my house and don't you dare take my gifts to her house." Or, "What a stupid thing for your dad's girlfriend to buy you." The message you're giving your child is that -- despite the fact you were once in love enough with the other parent to procreate -- you now despise your former spouse so much that reminders of them are not allowed in your home, even if it means ruining your child's enjoyment of a well-intentioned gift. In this scenario, the motive is to make yourself (not your child) feel better by diminishing the gifts or other holiday observances of the other parent.

  Nice:"How exciting your father gave you the X-Box that you've been wanting! I can't wait to see it so you can show me how it works!" Or, how about, "Of course you can take your favorite new toy to your dad's home to show him. I bet he'll enjoy playing with it, too! Try to remember to bring it home so you can enjoy it here after the holidays."

• We're Broke and it's His/Her Fault

• Naughty: Put a naughty twist on the holidays by telling your child that you pay so much in child support and/or spousal maintenance that you don't have any money to buy the gifts they want; or, conversely, tell your child that the other parent doesn't pay their support the way they're supposed to, so the holidays just won't be what they used to be. The message to your child is that the other parent is responsible for ruining your child's life (and yours) and implying that your child should be as angry as you are, and take sides. Better yet, ask your child to ask the other parent for the money they owe you. Tell them if they don't collect, there won't be anything under the tree.

  Nice: "Sometimes mommies and daddies aren't able to buy everything on your wish list, but we're going to have a wonderful holiday together." Or, if funds are tight, try being a real grownup and pooling resources with your ex-spouse on that one gift your child really wants that neither of you can afford on your own. Don't fight about at whose house the toy will be presented. Maybe you can both give it to the child together at the holiday parenting exchange. Your child will appreciate the two of you acting like adults and they will get their special gift. You should also consult with your former spouse regarding which items on your child's wish list each of you will purchase so that your child's wish list is fulfilled with no duplication or one-upsmanship.

  Finally, a naughty/nice experience from my own life. When my daughter was young, she went to visit her father out of state for Christmas. I had confided in him that "Santa" was bringing her first "big-girl's" bicycle that year. I was surprised when she called me on Christmas and told me that she knew she was getting a bike from me. Naughty or nice? You decide. But remember, it's up to you to determine the type of holiday your special little ones experience this year. Make it NICE!

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• Parenting Schedule, Modifying Out-of-State Orders
• My husband and I were divorced five years ago in another state. He stayed there, but I moved here with our children three years ago. I need to change his parenting time schedule. Can I file to do so with the court here, or do I have to file where we were divorced?
• Arizona will likely take jurisdiction over the parenting matters in your case. If Arizona is the "home state" of a child (meaning the child has resided in Arizona for six months with his or her parent prior to the commencement of an action), and Arizona is a more convenient forum than the original state in which to litigate the matter, Arizona may accept jurisdiction to modify your out of state parenting order. In determining which state will be more "convenient", the court will evaluate things like the distance between the states, the length of time the child has resided in Arizona, and where the most evidence exists that is required to resolve the litigation (which might be things like school records, medical records, and so on). In order to file to modify parenting time, you will have to register your out of state orders with the court here. By the way, if your Husband no longer lived in the state in which you were divorced, Arizona would take jurisdiction of the parenting issues without doing the "convenient forum" analysis.
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• Surrogate Parenting Contracts
• Are surrogate parenting contracts allowed in the State of Arizona?
  
  
• No. Arizona law prohibits any person from entering into, inducing, arranging, procuring or otherwise assisting in the formation of a surrogate parenting contract. A surrogate parenting contract is defined as any kind of agreement or arrangement in which a woman agrees to the implantation of an embryo not related to that woman, or agrees to conceive a child through natural or artificial insemination, and to voluntarily relinquish her parental rights to that child. Further, the legal mother of a child born as a result of a surrogate parenting contract is entitled to custody of the child, and if that mother is married, her husband is presumed to be the legal father of the child (although such presumption is rebuttable in Arizona).
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• Grandparent Visitation
• I have a lovely granddaughter. Unfortunately, my daughter (who has custody of her) does not let me see her very often and never lets me take her places. Can I get my own grandparent visitation?

• In certain limited circumstances, Arizona courts may order grandparent visitation. A grandparent or a great-grandparent may petition the court for visitation if at least one of the following is true:

  1. The child's parents have been divorced at least three months.
  2. One of the child's parents has been deceased or missing for at least three months.
  3. The child was born out of wedlock.

  In determining whether or not a grandparent should be granted visitation, the court must give deference to the fundamental and constitutionally protected rights of parents to raise their children as they see fit. (Grandparents do not have such constitutionally protected rights.) A presumption exists that a fit parent acts in his or her child's best interests when making decisions concerning the child's care and well-being, including decisions regarding grandparent visitation. Thus, a parent's decision about the amount of time that should be spent with a grandparent is given special consideration. In order to gain visitation, a grandparent must rebut the presumption that the parent' s decision is appropriate and best for the child, and prove a total or effective denial of access to the grandchild is occurring. (An effective denial occurs when visitation is so limited or unreasonable that it essentially fails to foster a relationship between a grandparent and grandchild.) Only then may the court grant you visitation, and it will do so only upon a finding that visitation will be in the best interests of the child.

  In determining the child's best interests in this context, the court will consider all relevant factors, including the historical relationship between the child and the grandparent, the motivation of the grandparent in seeking visitation, the motivation of the person denying visitation, the quantity of the requested visitation, and the potential adverse impact such visitation would have on the child's customary activities. If logistically possible and appropriate, the Court will order that visitation by a grandparent occur when the grandchild is residing or spending time with the parent through whom the grandparent claims a right of access. This requirement does not apply in your situation, but if, for example, your daughter's ex-husband had custody of the child rather than she, the court would first look at granting you visitation during your daughter's parenting time before it would consider giving you your own time. Grandparent visitation situations are significantly different than situations where a grandparent is raising and has been acting as a parent to a grandchild.

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Child Support

• Child Support
• What do I need to know about child support?
  
  

• Child support is calculated pursuant to state-wide guidelines based on various factors, including the gross income of each parent ("gross income" is defined very broadly and, with few exceptions, includes income from any source), the cost of health insurance and day care, and the parenting time schedule. It is paid for natural or adopted children until they are emancipated, which for support purposes is when they graduate from high school or turn 19, whichever occurs first. In divorce or legal separation actions, monthly child support payments become due commencing the first of the month after the action is filed. Only by agreement can you and your spouse prescribe that support payments continue past emancipation or include college expenses; the court is without authority to enter any orders as to children past their age of emancipation (except in the case of a disabled child). Child support is not taxable to the recipient nor deductible by the payor. Payments are typically made by deduction from the payor's wages and channeled through a clearinghouse, where records of payments made and amounts due in each case are kept. Only monetary payments count as support. Gifts to children or payments for their expenses made to someone other than their parent are not credited toward child support. To calculate child support in your situation, go to www.supreme.state.az.us/childsup/

  Child Support: The Straight Story

  1. Quitting your job or taking a lower paying job in an attempt to reduce your child support will not work. The court can impute income to you up to the level you are capable of earning. Any voluntary income reduction will be scrutinized.
  2. The income reflected on your tax return is not necessarily your gross income for purposes of calculating child support. Some tax deductions are not properly deductible from your income when child support is being calculated. Personal expense reimbursements received in the course of your employment may also count as income. If you are self-employed, only ordinary and necessary expenses required to produce income are deducted from gross receipts to arrive at gross income for child support, although such expenses do include one-half of the selfemployment tax actually paid.
  3. Only your income is part of the support calculation. Child support is based on the earnings and/or earning capacities of the parents, not their new spouses. However, recurring gifts or benefits with a cash value from any third party can increase your gross income.
  4. The spouse to whom you pay support cannot be forced to account for the expenditure of the dollars they receive. Child support is not intended solely for the purchase of tangible items for children, but for the cost of living space, utilities, gas for transportation and other expenditures which are difficult to measure. No accounting will be ordered by a court.
  5. Even if your spouse is refusing to let you see your children, do not withhold child support. Do take appropriate legal action if you are not being allowed to see your children, but understand parenting time and child support are viewed as two separate issues. Child support is defined, by law, to be your primary financial obligation. The courts have little sympathy for those who neglect making timely payments, nor should they. A knowing failure to pay support is a crime, and can result in jail time and the payment of attorneys' fees to the other party.

  And a reminder: If you are considering divorce, don't forget the Second Saturday series, held at Ottawa College on the second Saturday of every month. You receive 4 hours of divorce-related information from experts including an attorney, certified divorce planner, and psychologist for $40.00. Call 602-569-4764 to register.

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• Child Support Modification and Wage Assignment Information
• My ex-husband just changed jobs and based on his new home and new car, I think he is earning significantly more than when we divorced. How do I find out what he is earning and what is the easiest way to change my child support amount?

• Under Arizona law, child support may be increased or decreased any time a "substantial and continuing" change of circumstances occurs with regard to any of the factors used to calculate child support, such as changes in: income, the amount of spousal maintenance you pay or receive, childcare expenses, education expenses, health insurance premiums, or parenting time. For example, your incomes may remain the same, but if you change the amount of time you spend with your children, the change may warrant an adjustment to child support.

  The Maricopa County Superior Court has designed an easy-to-use program for modifying child support awards through its Family Court Conference Center division. This program was designed to assist parents in modifying child support without hiring an attorney, although certainly an attorney can assist you in any stage of the process. Simple forms requesting a change in child support can be downloaded from the court's website (www.superiorcourt.maricopa.gov/superiorcourt/self-servicecenter/index.asp), filed with the court, and served on the other parent. If that parent does not file an objection within a specified time period, your request will be granted. If that parent objects to the modification of support, a conference officer will meet with both of you and, based on the information you provide, will make a recommendation to the judge as to a new child support amount. If you and your ex-husband agree on that recommendation, the child support will be modified accordingly.

  You will go before the commissioner only in the event that one of you does not agree to the conference officer's recommendation. This process is likely not the best option if the combined gross monthly incomes of you and the other parent exceed $20,000 per month or, if one of you is self-employed and determination of your actual income is complicated (reportable income for tax purposes is not necessarily the amount of income that will be used to determine child support). In such cases, a judge is better qualified to determine whether child support should be modified.

  To easily obtain information about the other parent's income and employment benefits, send a written request (via first class mail) to his or her employer. If you are a party to a proceeding for child support (or spousal maintenance), the employer has only 20 days under Arizona Revised Statute §25-513 to provide the requested information. You may make only one request every 90 days.

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• Modifying Child Support When Ordered in Another State
• My Wife and I were divorced in another state. She moved here with our children, but I remained in the state in which we were divorced. I pay child support. When I was here recently visiting my children, she served me with papers she filed in Arizona to increase my child support. Am I entitled to litigate child support in the court that granted my divorce?
• Yes. Different laws apply to a determination of Arizona's ability to accept jurisdiction of a child support matter as opposed to a parenting matter. Had you not already been ordered to pay child support, and your former wife wished to establish such an order, service here would have been sufficient for Arizona to establish child support. Or, had you failed to pay her support under the out of state order and she was seeking to enforce the order, serving you here would suffice as well. However, serving you here does not give Arizona jurisdiction to modify an existing out of state child support order when you still live in the state that issued the order. But now that you have been served, you must take affirmative action to get her petition dismissed by filing a motion for same with the Arizona Court.
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Procedure

• Information Needed For A Divorce
• I am often asked by clients how they can assist in obtaining the information they will need in their divorce. Here are a few easy tips which will educate you and assist your attorney:

• Get a copy of your credit report. You can get a copy and sign up to receive regular credit report updates at numerous websites, including freecreditreport.com or consumerinfo.com. This will provide you information on any debts you and/or your spouse have, as well as your payment history.

  Look up the retail and trade-in values of your vehicles, motorcycles, or ATVs at kbb.com. Try to ascertain the value of your boat.

  Get an idea about the fair market value of your property at Zillow.com

  Check the County Recorder's website at www.recorder.maricopa.gov to research or confirm any real property owned, how your property is titled, and whether any liens or encumbrances are recorded against your property.

  Get copies of your tax returns, and copies of any returns for any entities in which you have an interest. Usually the last five years is sufficient. You can ask your accountant directly for this information, or request same from the IRS at www.irs.gov. Copies from the IRS are typically available for the last 6 years.

  Prepare a spending history. This is different than a budget, which defines the financial boundaries within which you need to or want to try to live. A spending history provides you with data on the actual historical expenditures of your family. Look at your bank statements, cash withdrawal activity, and credit card charges. Categorize them into housing expenses, food expenses, vacations, and so on for the last twelve months to get a true idea of how your income is spent.

  To research corporations or partnerships, go to www.azcc.gov.

  To check the status of your case or whether a divorce action has been filed by your spouse, go to www.superiorcourt.maricopa.gov.

  Check Arizona's parenting guidelines at www.supreme.state.az.us/dr/pdf/Parenting_Time_Plan_Final.pdf for age appropriate model parenting plans. These will assist you in coming up with an access schedule for your children.

  Make a list of all the assets and debts you know to exist, with approximate values. Not only will these exercises provide you with useful information, but presenting this information to your attorney in an organized fashion will help you save on attorneys' fees. It will also help focus you on the "business" of getting a divorce, rather than the emotions you may be feeling. Being able to make this distinction will be very important as you work through the legal issues that must be addressed in your divorce, and will assist you in making decisions that are best for you in the long term.

• Preliminary Injunction
• I was told the Court enters orders at the beginning of every divorce case freezing all assets. Is this true?

• Whenever an action for a dissolution of marriage, legal separation, or annulment is filed, a "Preliminary Injunction" is automatically issued by the court which contains orders that both parties must follow while their case is ongoing.

  The order prohibits each party from transferring, encumbering, mortgaging, liening, concealing, selling, or otherwise disposing of community property, except as needed in the parties' "usual course of business," for the necessities of life, or for reasonable attorneys' fees unless the parties have agreed in writing, or the court so orders. However, this does not mean your assets are actually "frozen." If you want to ensure that certain funds cannot be accessed by you or your spouse, you must obtain a separate order specifying same. If you are preparing to file for divorce, and you believe you might be cut off from the income stream of your spouse or otherwise be in need of funds, you may want to obtain funds for your use prior to actually filing the divorce action. If you proceed in this manner, the court can reallocate or otherwise account for those funds at a later date.

  The Preliminary Injunction also orders the parties not to molest, harass, disturb the peace of, or commit an assault or battery on the other party or your children. While such an order is not as specific as a formal Order of Protection, it does constitute an order upon which law enforcement officers can act. If you are concerned that your spouse will violate this portion of the Preliminary Injunction, you should keep a copy of the order available in the event you need to report inappropriate behavior by your spouse. You can also register a certified copy of the Injunction with the Sheriff in your jurisdiction. Then, in the event you are in a situation where you need to report a violation of this part of the Injunction, but do not have access to it, law enforcement officers can check with the Sheriff in your area to confirm that such an order exists.

  The Preliminary Injunction also prohibits you and your spouse from removing your children from the state of Arizona without either the other spouse's written consent or the permission of the court. This prohibition applies to relocating the children, as well as to traveling outside the state during your divorce.

  Finally, and importantly, the Preliminary Injunction prohibits you and your spouse from removing your children or the other spouse from existing insurance coverage, and requires that both parties maintain all existing insurance coverage in full force and effect. This applies to all types of insurance coverage, including medical, dental, automobile, disability, and life insurance.

  Preliminary Injunction orders are intended to stabilize what can many times be a volatile situation at the outset of your divorce. A violation of any portion of the order by your spouse should immediately be brought to the attention of the court.

• Appealing Your Divorce Rulings
• My husband and I could not settle our divorce case so we had a trial. The judge has now ruled and I do not agree with the rulings. What can I do?

• Because in divorce trials there is no jury, the judge is the one who decides what facts or evidence to believe and, after doing so, applies the law to those facts to make rulings. You have a number of options for requesting the rulings be changed, including:

  1. A "Motion for Reconsideration" gives your judge an opportunity to rethink and make changes to the rulings he or she rendered. If the judge made an inadvertent error, or overlooked evidence that if considered would have changed the decision, the judge might modify his or her rulings based on such a motion. However, if there was any evidence at the trial which supports the judge's rulings, and the law was applied correctly, this type of motion is unlikely to lead to the judge changing his or her initial ruling.
  2. A "Motion for New Trial" is also directed to the judge who made the rulings in your case, and is a request for a second trial on one or more of the issues already presented. This type of request can be used for the same reasons as a Motion for Reconsideration, and can also be used in circumstances where you have discovered information after the trial which could change the outcome but which you could not have known at the time of trial, where there has been misconduct by one of the litigants, where a party was deprived of a fair trial, or where the judge made an error in accepting or denying the admission of evidence.
  3. An "Appeal" of your judge's decision is made to a separate Court of Appeals. That court will review what the judge in your case did and, if convinced an error was made, will either overturn the judge's decision or send the case back to the judge with instructions on how the mistake is to be corrected. If the evidence presented at trial supports the court's factual findings, the appellate court will likely not disturb the judge's ruling. If, on the other hand, the judge made an error in applying the law, you have a greater likelihood of obtaining relief from the appellate court. If the Court of Appeals does not grant you the relief you seek, you have the option of then appealing your case to the Arizona Supreme Court. However, unlike the Court of Appeals, the Arizona Supreme Court does not have to accept for review all cases that come before it, and generally only takes those cases that it deems to be of "state-wide importance," which are very few.

  None of these post-decision requests allow you to add new evidence to your case (except in the limited circumstances discussed above). There are also other types of post-decision motions that might be helpful in your particular case. Consult with your attorney before moving forward with any such motion or appeal. Strict time limit deadlines may apply and attorneys' fees related to such actions can be significant. You must weigh the cost of taking such action against the likelihood of obtaining the outcome you seek.

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• Legal Separations
• What is the difference between a legal separation and a divorce?
  
  
• A final order of legal separation and a final order of divorce vary primarily only in one aspect: when a Decree of Legal Separation is entered, you and your spouse are not divorced - when a Divorce Decree is entered you are. Both final orders can define permanently your and your spouse's rights and obligations with regard to your children, spousal support for either of you, and the division of assets and debts. In Arizona, you must be a resident of the state for at least 90 days before you can file for a divorce. To file for a legal separation, you need only reside in Arizona as of the date you file. An action for or Decree of Legal Separation may become a Petition for or Decree of Divorce if either party requests, even over the objection of the other spouse. One of the most common reasons people choose to become legally separated rather than divorced is to maintain health insurance benefits for a non-employed or uninsurable spouse. Most health insurance policies will continue to insure a current spouse, but not a former spouse. Another common reason for a legal separation is religious beliefs. Other people feel that psychologically easing into a divorce by first filing for a legal separation is more comfortable. Many people are under the impression they are separated in some legal sense because they live apart from their spouse. However, an actual court action must be filed and a decree entered to either be legally separated or divorced.
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• Expedite the Divorce Process
• My spouse and I hope to minimize expenses associated with our divorce and expedite the divorce process. I believe with assistance, my spouse and I can settle our divorce without court litigation. What are our options?

• My spouse and I hope to minimize expenses associated with our divorce and expedite the divorce process. I believe with assistance, my spouse and I can settle our divorce without court litigation. What are our options?

  Another option is to participate in formal mediation. You and your spouse could engage a professional mediator to work with you both, without either of you retaining an attorney. Trained mediators can not only help you and your spouse exchange information and reach a settlement, but can file all court documents needed to commence and finalize the divorce. Both Attorney Jodie Cuccurullo and Attorney Andi Mengedoth of my firm are so trained and are available to assist you if you wish to explore this divorce option. A privately retained mediator can also be very helpful in resolving your case even if you and your spouse have attorneys. The mediator will often "caucus" to help the resolution process by going back and forth between rooms where each party and their counsel are located. Jodie, Andi, and I can all serve as mediators in this regard. Also be aware that the Maricopa County Superior Court offers free and/or low cost mediation services.

  Last, arbitration is a method to resolve the issues that just cannot be agreed upon in your case in a somewhat less formal setting than the courthouse, and many times in a more expeditious fashion than waiting for a trial date. The arbitrator will hear testimony, review exhibits, and render a binding decision as to the contested issues in your case. This process can take place with or without attorneys. Jodie and I are available for arbitration resolutions.

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• Collaborative Divorce
• What is Collaborative Divorce?
  
  

• Collaborative divorce is the newest divorce dispute-resolution model. It is a process through which the parties and their Collaborative trained attorneys commit themselves to resolving all issues of the divorce by negotiated agreement without resorting, or threatening to resort, to costly court proceedings. Arizona uses the team approach, Collaborative divorce, and encourages the free exchange of information, and allows the parties to make their own decisions about their case with a team of professionals who are hired to assist in the process.

  The team members include: (1) the parties; (2) family law attorneys for each party; (3) divorce coaches for each party to guide them through the difficult emotional issues that arise when a divorce occurs, and who provide the parties with communication skills for both during and after the divorce process; (4) a child specialist (if there are children) who assists the parties with a parenting plan; and (5) a financial professional who compiles a list of the parties' assets and debts, and provides scenarios for the parties to demonstrate how possible agreements look as they play out into the future. The collaborative team has the ability to dedicate significantly more time to the family dynamics than a family court judge due to case load and time restrictions inherent in the court system.

  A unique characteristic of collaborative divorce is that the parties enter into an agreement before the process begins which provides that if one or both of them choose to abandon the collaborative divorce process, and proceed to court for resolution, all members of the collaborative team must withdraw from the process. This means that the clients must find new attorneys, and opinions or work product produced by the team members cannot be used. The obvious purpose of this agreement is to encourage clients to work within the collaborative divorce model and resolve their divorce outside of adversarial litigation. The agreement helps to ensure the parties approach the collaborative divorce process in good faith.

  The actual cost of a collaborative divorce differs from family to family, depending on specific needs and the team members hired. However, having a team of professionals at the outset of your case ensures that all issues and concerns are being addressed from the very beginning, which can be very cost effective. Collaborative cases can cost significantly less than litigation cases and be less emotionally damaging than the traditional litigation process.

  Attorneys and other professionals who participate in the collaborative divorce process are required to have intensive training specific to collaborative divorce. Attorney Andi Mengedoth of my firm has such training, and is available to speak to you if you wish to know more about this unique divorce resolution process.

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• Mediation
• My divorce case is scheduled for mediation. What can I expect and how can I best work with my attorney to prepare?

• The goal of mediation is to settle all issues in your case by agreement and avoid the need for a trial. Often a private mediator is hired to assist the parties and attorneys in reaching a settlement when other attempts have failed. You will want to meet with your attorney in advance of mediation to prepare. Prior to your attorney meeting, make a list of each and every issue that you believe has been resolved so you can affirm those agreements at mediation. Also make a list of each and every issue that you believe has not been resolved and how you would like to see that issue handled. Outline those issues starting with a main idea, and each subpart of that idea, ensuring that you capture each issue that you feel needs to be addressed. This outline will be helpful to both your attorney and you. For example, if parenting time is an issue in your case, you want to be sure to attempt to also settle issues associated with summer parenting time, vacations, holidays, daycare, and so on. If selling the marital residence is an issue, you will want to address who chooses the realtor, the amount for which the house will be listed and/or sold, and who will make payments until the house sells. Your attorney can help you ensure the list of issues for mediation is complete. Make sure you have provided your attorney any documentation that supports your position on each issue.

  Your attorney should provide their expert advice on the likelihood of prevailing at trial on each of the outstanding issues. You also need to understand the attorney's fees and costs you will incur in preparing for and going to trial verses settling the issues at mediation. This information will help you to determine what weight to give each of your positions in mediation, and what you are willing to bargain away in a settlement.

  Mediation is a time to be creative. Ask your attorney about options available to you for settlement that may not be remedies a judge can order at trial. It is always better to control the outcome of your case by settlement, if possible, rather than having the future of you and your children decided by a judge who does not know you and has only limited time to hear your case. Settlement at mediation can be a positive conclusion to what was likely a difficult divorce process.

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• Taping of Telephone Calls
• I am in the process of a divorce. I have listened on a phone extension in my home to conversations between our five year old son and my soon to be ex-wife. She has been saying things to him I think are inappropriate. Can I legally tape these calls? Can I also tape conversations she and I have? Can I use them in my court case?

• You can be criminally charged under both Arizona and federal law if you intentionally tape record or intercept a wire or electronic communication when (1) you are not a party to the conversation; and (2) neither party to the conversation has consented to the recording. You may also face the same criminal liability if you assist, authorize, or hire someone else to tape record or intercept communications to which you are not a party, if the parties to the conversation have not consented to the recording. However, you can legally tape record your own in-person conversations or telephone conversations with your spouse, your ex-spouse, or child (or anyone else for that matter) when you are a party to the conversation. Such a recording is legal and does not require the other person's knowledge or consent. There are also circumstances when you can legally tape record your children's conversations, even without the child's or the other parent's knowledge or consent. You can do so if you have a good faith and objectively reasonable basis to believe it is necessary and in the child's best interests to record the conversation. Your concern that your wife is making inappropriate statements to the child appears to provide such a basis for tape recording the conversations.

  Such recordings may be beneficial and useful as evidence in family law actions where custody or other matters are in dispute if the recording relates to one of those issues; in some cases such recordings may be the only method of obtaining and preserving vital evidence. However, you must also be aware that recording your wife's or your child's conversations without their knowledge may in some instances be viewed by the court as ill-motivated. Understand you likely must disclose the recordings you make to the other party, even if you do not intend to use them at court. Also, even if the recordings are made legally, that does not mean they will automatically be admissible in court as evidence; they must also meet the requirements of the evidentiary rules applicable to your case. Surprisingly perhaps, even illegally obtained recordings may be admissible in court, although their admissibility does not prevent you from being prosecuted for making the illegal recording. As always, check with your own attorney on the advisability of tape recording conversations, and how they can be used to your benefit in your divorce case.

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• Top Reasons to Settle Your Case

• In the midst of divorce litigation, I often hear the comment "I will see you in court!" or "Let's just go to trial!" While there are some cases that simply cannot be resolved short of trial, most cases can and should be settled. Here are the top reasons to settle your case instead of having a judge decide your future for you:

  1. Cost. It is much less expensive to settle your case. Trial can easily add tens of thousands of dollars to the cost of your divorce.
  2. Speed. You will be divorced quicker if you settle. Trials are usually set months into the future. If the time initially scheduled for your trial is not sufficient for its completion, it could be weeks or months before your trial resumes. Also, judges rarely rule at trial. Rulings may not be received until weeks or months after trial is held.
  3. Issue Prioritization. At trial, a judge will not take into consideration what issue or goal is most personally important for you to achieve. Settlement allows you to give more weight to some issues than others, and fashion your settlement accordingly.
  4. Creativity. You can be creative in the way you resolve your case if you settle. Judges are limited in the types of remedies they can order. You can also address issues in settlement a judge might not even allow you to bring up at a trial.
  5. Risk minimization. In any given case the same facts presented to different judges will likely result in different rulings. You can never be sure the court will rule in your favor. Settling allows you to control the outcome.
  6. Finality. If a judge decides the outcome of your case, an unhappy party can appeal the case to a higher court, adding months or years to a final resolution, along with great expense. If you settle, you are done.
  7. Emotional Investment. Preparing for trial, testifying on the stand, and being cross-examined can take its toll emotionally and make a difficult parting of the ways even worse. Settling allows you to exit your marriage gracefully and with dignity.
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• Depositions
• I am going to be deposed by the opposing attorney in my divorce case. What should I expect? How should I prepare?

• At your deposition the opposing attorney will ask you questions, which you will answer under oath, in front of a court reporter. Also present will be your own attorney and your spouse. A written transcript of the questions and answers can be prepared by the court reporter and may be used as an exhibit if your case proceeds to trial. The purpose of a deposition is for the opposing attorney to learn what you will say in court about the facts of the case and to assess what type of witness you make. Are you believable? Easily confused? Do you anger easily? If you say something different at trial than you did in your deposition the opposing attorney will make sure the judge knows you have done so and will argue you cannot be believed. It is therefore important that in your deposition you:

  1. Tell the absolute truth. Do not deviate from the truth even if you think it might hurt your case.
  2. Answer only what you are asked. Do not think aloud, give a narrative, or volunteer information.
  3. Answer yes or no questions with a "yes" or "no" only. If you do not know or cannot recall the answer to a question, say so.
  4. Repeat the question silently to yourself before answering it so you can focus on what information is directly responsive to the question. Ask the opposing attorney to reword the question if you do not understand it or cannot answer it clearly.
  5. Do not speak over the attorney asking the questions and do not speak too fast.
  6. Do not try to convince the opposing attorney you are right. If you do so you will likely violate the rule of thumb to answer only what is asked of you. In any event you will not convince the opposing attorney of anything.
  7. Remain calm. Do not raise your voice.

  During your deposition, your attorney might object to something the other attorney has asked. Unless instructed not to do so, you still need to answer the question. Your attorney's objection to the question will be noted in the transcript and may provide a basis for a future objection in court to the question and/or answer. Understand that the range of questions that can be asked in a deposition is very broad and thus you may be answering questions you do not feel are relevant. You may want to have a practice session with your attorney before your deposition so you are comfortable following the above guidelines. Adhering to them will allow your deposition to move quickly, will assist you if you must proceed to trial, and may even help you settle your case.

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• What To Expect At A Trial
• I have a trial coming up in my case. How will I know what to expect and how can I make sure I am prepared?

• Prior to any trial, counsel for the parties are required to submit to the Court a joint statement setting forth all agreements, all disputes, each parties' position on each issue in dispute, and their list of witnesses and exhibits. This statement is typically due to the Court at least one week prior to trial. Your attorney should afford you the opportunity to review and have input on this statement prior to its submission to the Court. This important document frames all issues for trial. You will not be allowed to argue about issues not in the joint statement or use witnesses or exhibits you have not listed.

  At trial, your attorney will conduct your "direct" examination (the attorney asks questions and you answer them under oath while on the witness stand). Opposing counsel will then have the opportunity to "cross-examine" you, after which your attorney can conduct "re-direct" to clarify or explain any answers you gave during your cross-examination. Your attorney needs to review with you the questions they will ask you and the topics they will cover on your direct examination in a practice session. Your attorney should prepare you for possible questions you may be asked during cross-examination. In addition, you need to familiarize yourself with the exhibits provided to the judge by both your attorney and the opposing counsel, and understand how those exhibits might be utilized in connection with your direct or cross-examination. Your attorney should also talk to you about appropriate courtroom demeanor and attire. He/she should explain to you how objections are made at trial and what you do if an objection is made by one of the attorneys while you are on the stand. Some clients even like to observe a hearing in the courtroom in which their trial will take place to familiarize themselves with the setting and the judge.

  Your best preparation is to be actively involved before trial with your attorney and the strategy of your case. Good luck!

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Attorneys

• Attorney's Fees
• Are there any restrictions on the method I use for paying attorney's fees during my case? What factors will determine whether I receive reimbursement for my attorney fee expenditures at the end of the case?

• Most divorce attorneys require a fee deposit at the outset of your case. The amount you are billed each month is deducted from your deposit. Each time the deposit is depleted, you will likely be asked to replenish it. In Arizona, you are allowed to utilize marital assets to pay your attorney's fees. Many attorneys also accept credit cards and it is acceptable to use a community credit card to pay your fees. There are circumstances, however, when a party to a lawsuit may not be able to access community funds because an account or income stream is "controlled" by the other party. Short of borrowing from friends or family, you may petition the court to gain access to such funds or request an order that your spouse pay your attorney's fees. If requested, the court may also divide liquid assets equally at the outset of a case.

  At the end of your case, the court may order that one party reimburse the other for attorney's fees incurred. In Arizona, the court is directed by law to review two specific factors in determining whether a party should be ordered to pay the other party's attorney's fees and costs: the financial resources of the parties and the reasonableness of the positions taken by each party during the case. Your attorney can explain your chance of obtaining or recovering attorney's fees in your particular case.

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• Choosing Your Attorney
• I need an attorney for my divorce. How do I find the right one for my case?
  
  

• The practice of law has become very specialized, with attorneys practicing in discrete areas of law, sometimes for their entire legal career. I recommend you focus your search on those attorneys whose practice is primarily in family law. You can start by contacting an attorney you may know – whether professionally or personally – whatever their area of practice. Most attorneys have a preferred list of attorneys in other areas of practice to whom they regularly refer clients. Friends and family can also be a resource, particularly if they have worked with an attorney recently and were pleased with their representation. Finally, the state or county bar associations can provide you with referral information. The State Bar of Arizona provides specialization certification in the area of family law. While this is not to say that attorneys without this certification are not as well-qualified, the certification does indicate a high level of expertise in family law practice.

  Do not expect free advice over the phone when you call. Most attorneys will want to schedule an appointment for an initial consultation and many will charge for this time. As in life in general, "you get what you pay for" can be especially true in the area of legal services. The hourly rates of attorneys differ, as they should according to an attorney's level of expertise and experience. While not every case necessarily warrants payment of top hourly rates, the facts of some cases do demand such expert legal advice. The more you understand about the complexity of the issues in your case, the better you will be able to determine the level of expertise your case requires. For example, an attorney with just one year of family law experience may be well qualified to help you with a simple divorce action (and you'll pay much less per hour), while a more complex case (such as those with multiple business interests) should be handled or overseen by a more seasoned attorney, and worth the additional fees.

  Come to your attorney meeting prepared to discuss financial matters. Before your consultation, make a list of specific questions you have and bring an inventory of your separate and community property, bank and investment accounts, other assets, debts, mortgage balances, and your most recent few years of tax returns if available. Make sure you bring a copy of any pleadings that have been filed, such as a Petition for Dissolution or Response. If an Order of Protection has been issued, bring a copy. If you and your spouse have made any agreements between you, bring a copy of the agreement or write down the specifics. Many people wish to bring a friend or family member to their first appointment. Such support can be beneficial but remember, the attorney-client privilege is waived if a third party is in the meeting. Under no circumstance should you bring children to an attorney meeting. Leave with answers and do not be shy about interviewing more than one attorney if you don't feel comfortable with your first choice. This is your life and the decisions made during a divorce can affect you and your children for many years to come, so it is important that you have trust and confidence in the person representing you. Make sure at the end of the meeting you have a clear understanding of how the attorney charges for their time and what specific recommendations and actions the attorney proposes be taken.

  It is my personal philosophy that the best attorneys are those who involve and empower their clients to help make decisions about the direction of the case. Attorneys who tell you what the outcome will be or take action without your involvement may not be providing the best services. The service of law can be like the service of medicine. I prefer a doctor who will explain the diagnosis and give me treatment options rather than one who gives no feedback and just writes a prescription. Going through a divorce, separation, or paternity action can be a trying and emotional time. You will be most satisfied in the end if you retain an experienced attorney who philosophically and personally fits with your goals and values.

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• Disclosure With Your Attorney
• Can my attorneys be forced to disclose what I tell them in confidence?
  
  

• It depends. Generally, communications between you and your attorney are protected by an "attorney-client privilege," which means neither you nor your attorney can be forced to tell any third party the contents of your conversations or other communications. The purpose of this privilege is to encourage a client to provide all information to their attorney so the attorney can provide effective legal representation to the client. This privilege covers, among other things, your communications regarding strategy and litigation preparation. This rule of confidentiality also applies to your attorney's staff and other employees; however, it is not absolute.

  The rules governing lawsuits in Arizona, including family law cases, impose an affirmative duty on litigants to disclose to the other side all facts, legal theories, documents, and names of individuals relevant to any of the issues in the lawsuit; in essence all information known by or available to you and your lawyer which may be relevant to the case must be provided to the other side. Because this is an affirmative duty, you must provide such information even if it is not specifically requested by the other side. You cannot avoid this duty by claiming the information is privileged because you communicated the information to your attorney. Once your attorney is in possession of the information, the attorney has an ethical duty to disclose the information to the other side and can be financially sanctioned by the court for failing to do so. For example, if child support is at issue in your case (making each parties' incomes relevant) and you tell your attorney you get paid "under the table" for much of the work you perform, that fact is not protected by the privilege. If you tell your attorney you have a secret bank account into which you have placed community funds, that fact is not protected.

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• Tips for Getting the Most Out of Your Divorce Attorney

• If you are personally involved in a divorce or other family law matter, both the attorney you choose to hire and the way you interact with your attorney can significantly impact both the success and cost of your case. Here are my top tips for getting the most out of your attorney-client relationship:

  Recognize and use your attorney's expertise. You (hopefully) hired an attorney you trust and who has expertise in the area of family law. You are paying thousands of dollars to this attorney to advise you - listen to them! This is not to say you should not be involved in the decision making process during your divorce. A good attorney should educate you about how the law applies to the facts of your case, how the court might rule on the issues in your case, and what viable options exist for resolving your case. They should outline a recommended course of action, but allow you to make the final decision on how to proceed. They should then work to help you achieve the goals that have been set.

  Practice effective communication with your attorney. This means more than just giving your attorney information about your case. It means giving truthful and complete information. It means providing your attorney the documents they request from you. It means updating your attorney on changes in your case as it progresses. It means reading information the attorney sends you, even if you do not want to do so (your attorney should send you copies of all documents generated or received by them.) It means understanding when you have a true emergency and when you do not. It means thoughtfully focusing your attorney communications on the issues of your case.

  Comply with court orders and avoid criminal acts. There is almost nothing worse for an attorney than having to deal with a client's breach of a court order or a criminal prosecution in the midst of their divorce. There is never a good way to "spin" such actions, and judges do not take kindly to their directives being ignored. Understand clearly the Preliminary Injunction Orders, which are automatically issued at the outset of every divorce or legal separation case, and be clear on any other orders issued by the court; if you do not understand them ask your attorney.

  Recognize that your attorney can see the big picture much better than you can. An expert family law attorney has likely handled (and therefore lived through) tens or hundreds of divorces. This experience allows your attorney to gauge how the actions you take and decisions you make today will impact your case in the long run in ways you may not appreciate. Consult with them before taking any action or making a major decision that could impact the issues in your case. If you remember just one piece of advice, remember this: Don't let your emotional reactions take priority over good old divorce strategy and planning.

  Here's to a successful relationship for you and your attorney!

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Premarital

• Premarital Agreements
• Are Premarital Agreements binding in Arizona? What do they need to include?
  
  

• Premarital Agreements are contracts between prospective spouses in contemplation of marriage, which are effective upon marriage and – with rare exception – binding in the State of Arizona. To be valid, your agreement must:

  1. Be in writing and signed by both parties;
  2. Become effective upon your marriage; and
  3. Be executed voluntarily by each party. To decrease the chance the agreement will be challenged at a later date, it should also:

  To decrease the chance the agreement will be challenged at a later date, it should also:

  1. Provide a fair and reasonable disclosure of the property and debts of each party, which is best achieved by attaching to the Agreement a list of each party's assets and debts; and
  2. State that each party waives any right to disclosure of the other party's property beyond that disclosed in the Agreement.

  You have great latitude in determining the specific terms of your Agreement. It may include rights and obligations of you and your prospective spouse as to property either of you currently have or will acquire during the marriage; the right to purchase, use, sell, transfer, exchange or otherwise control such property; how property will be divided upon separation, divorce or the death of either party; the modification or elimination of spousal support; the making of wills, trusts or other arrangements to carry out the provisions of the Agreement; ownership rights in and disposition of death benefits from any life insurance policy; or any other matter pertaining to you and your spouse which is not in violation of public policy or a statute imposing a criminal penalty. Issues regarding children, such as custody, parenting time and child support are not appropriately included in a Premarital Agreement.

  While not required, it is advisable that each party be represented by his or her own counsel to assist in the review, understanding and signing of the Agreement, even if one party pays for both attorneys. This is helpful in negating any future claim by your spouse that he or she did not understand the Agreement or did not enter into it willingly. It is also important that the Agreement not be entered into on the eve of the marriage. Ensuring that your Premarital Agreement is signed in plenty of time prior to the marriage assists in negating a future claim that the Agreement was coerced at the last minute. If there is a provision in your Agreement that modifies or eliminates spousal support in the event of legal separation or divorce, it will be binding unless enforcing the provision would cause one party to be eligible for public assistance. In that event, a court may go beyond the Agreement and require spousal maintenance to be paid. After marriage, a Premarital Agreement may be amended or revoked by written agreement signed by both parties. Also note that, while less common, a Post-Marital Agreement (a contract between current spouses which defines their rights to assets and debts) may also be enforceable.

  If a Premarital Agreement is challenged, the party seeking to invalidate it has the burden to prove it should be set aside. In the rare circumstances that Premarital Agreements are not upheld, it is typically due to the same types of problems that make other types of contracts unenforceable, such as the contract was unconscionable (meaning that given the circumstances at the time the Agreement was entered into, it was so one-sided as to oppress or unfairly surprise an innocent party); a party was under duress or coercion when it was signed; or it is not specific enough for the court to enforce.

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• Cohabitation Agreements
• I recently learned that a long-term cohabitation relationship (of over 10 years) is now considered to be a common law marriage in Arizona. Is this true? Am I now married without the splashy engagement party, the magnificent wedding, the honeymoon?

• Relax! Common law marriages cannot be formed in the State of Arizona, regardless of how many years you live together. However, if you legally achieved common law marriage status in another state that recognizes such unions before moving to Arizona, Arizona will recognize you as legally married. (The term common law marriage refers to a legally recognized marriage that occurs in certain states not because of a formal ceremony and issuance of a license, but based on other factors such as the number of years a couple lives together or their behavior as married during their cohabitation).

  If you are in a long term non-marital relationship, and are concerned about the lack of a legally recognized union which would otherwise govern the split of property and debts upon death or break-up, consider entering into a Cohabitation or Domestic Partnership Agreement. Such an agreement is simply a contract which outlines the rights, responsibilities, and obligations of two people during or upon the termination of their relationship, including specific agreements as to ownership of property and/or debts acquired during the relationship. Such agreements may be helpful for everyone from young adults living together prior to marriage, to senior citizens who choose to live together and not marry. This agreement is private, not filed with the courts, and can be tailored to fit your specific situation. Such agreements can be entered into by heterosexual or same-sex couples.

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• Covenant Marriages
• What is a Covenant Marriage?
  
  

• In 1998, the Arizona legislature adopted covenant marriage laws. These laws, for those who choose the option of invoking them, are a return to the days when fault or mutual consent had to exist in order for a legal separation or divorce to occur. A covenant marriage can be entered into by a couple submitting a written statement about covenant marriages as specified by statute, and by confirming their attendance at premarital/covenant marriage counseling. Existing marriages may be converted to covenant marriages.

  Once a covenant marriage exists, a divorce decree may only be entered by a court if the non-filing spouse has committed adultery or committed a felony with a sentence of death or imprisonment; refuses to return to the marital residence after a one year absence or a two year separation without reconciliation exists; been physically, sexually or emotionally abusive or committed an act of domestic violence; habitually abuses drugs or alcohol, or both husband and wife agree to the divorce. A decree of legal separation in a covenant marriage can be obtained based on any of the above grounds, and also if the non-filing spouse's "habitual intemperance" or "ill treatment" makes living together "insupportable." A decree of legal separation in a covenant marriage can also serve as a basis for a divorce if it was entered at least a year before the divorce action is filed and there has been no reconciliation during that year.

  Given the divorce rate in Arizona, I suggest you twice before choosing a covenant marriage!

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Insurance

• Health Insurance Coverage After Your Divorce
• I currently have health insurance coverage through a group plan sponsored by my Husband's employer. Can I keep that health insurance coverage after our divorce is final?

• If you and your spouse are on a group plan through his employer, you will have to obtain separate coverage once the divorce is final. You should first determine if you qualify for another group plan through your own employer or organizations to which you may belong. If you do not, and if the employer who provides the insurance to your Husband has at least 20 full time employees, one alternative is to keep the same insurance under what is referred to as "COBRA" coverage. You can keep the same coverage as under the group plan, for up to 36 months, but the insurer is not required to offer you the coverage at the same cost. You can be charged up to the full insurance cost (without any employer subsidy), plus 2%. This increase in cost over what your spouse was likely paying can make it more cost effective to obtain a separate individual policy if you qualify for one. For individuals who cannot qualify for other health insurance or who qualify only if certain health conditions are excluded from coverage, COBRA coverage may be your best option. Even though COBRA coverage expires in 36 months, insurance laws now mandate that health insurance coverage be made available to individuals who do not qualify for other health insurance when their COBRA coverage expires. This insurance is referred to as Portability Coverage, and most large health insurance carriers offer it. The requirements to qualify for Portability Coverage are very specific, but generally if you have been under a COBRA policy through your spouse's former employer since your divorce and you will not qualify for other insurance (including medicare or medicaid) when the 36 months expires, you may be able to obtain Portability Insurance. Portability Insurance covers all preexisting conditions, but can be expensive, and may cost upwards of $1000 per month depending on your age and the deductible chosen. On the other hand, if you are in good health and can qualify for an individual plan at the time of your divorce, you should explore obtaining such a policy. A significant concern if you take COBRA coverage, even though you could obtain an individual plan without exclusions, would be an intervening illness or injury. If during your time under the COBRA plan you experience a significant injury or illness, you could find it difficult to obtain a basic individual plan when your COBRA coverage ends. However, if you obtain an individual plan right from the start, continued treatment of your injury or illness would likely be covered.

  You may consider talking to a health insurance specialist to assist in making these decisions when needed. And remember, if you are entitled to receive spousal maintenance, the cost of health insurance is a living expense to include when determining the appropriate amount of spousal maintenance you should receive.

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• Life Insurance and Disability Policies in Divorce
• How will our life insurance and disability policies be treated in our divorce?
  
  

• Determine first whether or not your life insurance policies have a cash value term policies do not, whole life and other types of life insurance typically do. If there is a cash value it must be considered in the overall allocation of assets and debts in your divorce. Typically the policy itself is awarded to the spouse whose life is insured by the policy. However, in certain situations and for certain reasons, one spouse may wish to own a policy that insures the life of their former spouse.

  Disability policies are awarded to the insured spouse with no value assigned to the policy. If a spouse received disability income during the marriage, any such monies existing at the divorce filing, or assets purchased with those monies, are subject to division in your divorce. Disability payments received after the divorce is filed belong to the disabled spouse, although the income may be utilized in calculating child support or spousal maintenance.

  There are other important uses for these insurance policies in connection with your divorce. You might want to designate the children or one spouse as beneficiary of a life insurance policy for the purpose of providing funds to care for the children or their educations in the event of the death of one parent. You might want to use life or disability insurance to secure spousal maintenance or other financial obligations so that if the owing spouse dies or becomes disabled prior to fulfilling those obligations the other spouse is assured of payment. Not all of these arrangements can be ordered by a judge if your case proceeds to trial. However, they can all be part of a settlement contract between you and your spouse. You will want to make sure that the spouse carrying the insurance provides periodic evidence that the policy remains in force and that no loans have been taken against it.

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• Life Insurance, Will, and 401(k) Plans
• My ex-husband and I were divorced two years ago. He is now in ill health, and has not removed me from his will, life insurance, or as beneficiary of his 401(k) plan. Does this mean I will still receive such assets if he dies even though we are divorced?

• Under Arizona law, an ex-spouse beneficiary designation is automatically revoked as to wills, life insurance policies, or annuity policies after divorce. This means his failure to remove you as a beneficiary under one of these instruments will invalidate your right to be recognized as an heir or beneficiary, and benefits will be paid and provisions will be carried out as if you had died before him (unless you remarry your former spouse, in which case if you were never removed as a beneficiary your rights are revived). The theory behind this automatic revocation statute is that most people do not want to give such benefits to their ex-spouse after divorce, and failure to take action to remove the ex-spouse as beneficiary should not be penalized. The statute also revokes powers of attorney, trustee or conservator designation, and other similar appointments. In the event that someone wants to provide for their ex-spouse under their will or through life insurance, they must re-execute their will in order for the provisions benefitting the ex-spouse to be valid. However, if as part of your divorce settlement it was agreed, or a Court has ordered, that you were to remain a beneficiary or heir, such agreement or order will be given effect and the revocation statute will not apply.

  Most employee benefit and retirement plans (like your husband's 401(k)), on the other hand, are treated differently. Most such plans are governed by federal law, which overrides state law, and thus these types of plans do not fall under Arizona's automatic revocation statute. Therefore, if you are named as a beneficiary on one of these plans you remain the beneficiary even after divorce until this designation is physically changed.

  Remember, the best policy is always to consult with an estate planning expert following a divorce to assure your estate is distributed as you wish upon your death.

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Debts

• Discharging Divorce Obligations in Bankruptcy
• My spouse says if I do not take the divorce settlement being offered he will file bankruptcy after we divorce and I will get nothing. Could that happen?

• You cannot stop a former spouse from filing bankruptcy if he or she qualifies to do so under federal law. However, those same laws help protect you if such a bankruptcy is filed. Child support, spousal maintenance, or any other payments your spouse is ordered to make which can be considered a form of support for you or your children cannot be eliminated (discharged) by bankruptcy. In some cases, even attorneys' fees a spouse is ordered to pay are considered support and therefore not dischargeable. Thus, these types of payments will not be affected if your spouse files for bankruptcy.

  Payments you are to receive as part of your property settlement or debt payments to be made by your former spouse, however, are treated differently. Prior to 1994, such payments could be eliminated if the person who owed them declared bankruptcy. In 1994, bankruptcy laws were changed to address that loophole. Now, payments or debts that were assigned to the person filing bankruptcy in the course of a divorce or legal separation cannot be discharged unless that person can show significant hardship (more specifically defined in the law itself) will result unless the debt is eliminated. The level of hardship required can be difficult to prove and, thus, many times these types of debts or payments are not discharged. Be warned, however, that the burden of showing such debt or payment obligations should remain in full force rests on you, as the spouse who is to receive the payments or benefit from the divorce order. You must take affirmative action in your former spouse's bankruptcy action to protect your rights.

  A case decided by the Arizona Court of Appeals may further diminish a former spouse's ability to benefit after a divorce by filing bankruptcy. In that case, the trial judge ordered each party to pay an equitable portion of the community debt and Wife was to pay Husband additional monies for his share of the property she was keeping. After the divorce was final, Husband filed bankruptcy and successfully discharged the debt assigned to him by the court. This effectively left Wife in the position of having to pay the debt assigned both to her and her ex-husband because a court's decision as to whom should pay what portion of community debt in a divorce is binding only between the parties, not as to creditors. As the creditors were now barred from pursuing payment from Husband, Wife could be pursued for all of the debt. Wife requested the court modify the divorce decree to account for the unfairness which had now resulted. The Court of Appeals held that based on the specific facts of this case, Wife was entitled to a new trial and directed the trial court to determine whether the original orders should now be modified.

  If a spouse threatens to file or does file bankruptcy, either during the divorce or after the divorce decree is entered, seek immediate guidance from a bankruptcy expert, as well as your divorce attorney.

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Paternity Issues

• Establishing Paternity
• My baby's father and I are not married, but we live together as a couple. What is the easiest way for us to legally establish his paternity of our child?

• The two of you may file either (1) a notarized and witnessed statement which includes your social security numbers and acknowledges your boyfriend is the child's father, or (2) a statement that the two of you agree to be bound by the results of genetic testing, along with an affidavit from the laboratory which performed the testing that your boyfriend has not been excluded as the child's father. Such filings are accepted by the Superior Court, the Department of Economic Security, and the Department of Health Services. Either filing will result in your boyfriend being defined as the child's "legal" father. However, child support, custody, and parenting time are not established by this process.

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Domestic Violence

• Orders of Protection
• My friends are advising me to get an Order of Protection against my husband. He has never hit me, but he really scares me sometimes and I'm afraid one day he will hurt me. Should I get an Order? How do I get one?

• Physical violence does not have to have already taken place in order for you to obtain an Order of Protection. If your husband has acted in a threatening or intimidating manner, and either by his words or actions has caused you to fear for your physical safety, or if he has restrained you, he has already committed legally defined acts of domestic violence. Such acts give you sufficient grounds upon which to obtain an Order of Protection. (The term "Order of Protection" refers to an Order that protects a person against another person to whom they are married, are related, with whom they live or have lived, or with whom they have a child.) You may request an Order of Protection from the Superior Court, a Justice Court, or a Municipal Court. (Go to www.supreme.state.az.us for court locations.) If you are already involved in a legal separation or divorce you should obtain your Order through the Superior Court, with your attorney (if you have one) in attendance. You do not need to schedule an appointment in advance and there is no filing fee. You will fill out a form on which you need to list the incidents when your husband's behavior made you afraid of being harmed. You will then see a judge or justice of the peace who will grant the Order if he or she believes your husband may commit an act of domestic violence or has committed an act of domestic violence within the last year. (The court can consider domestic violence that occurred more than a year ago if good cause exists to do so.)

  If your request is approved, the Court will order that your husband commit no acts of domestic violence against you; may grant you the use and exclusive possession of your home; may stop your husband from contacting you or other designated persons (such as children) either in person, telephonically, or by e-mail; may prohibit him from coming near your home, place of employment, school, or other locations necessary to ensure your safety; may prohibit him from possessing or purchasing firearms; and may enter any other order necessary for your protection. Once received, the Order must be formally served on your husband by a process server or Sheriff to be effective against him. If you are awarded the exclusive use of your home, your husband will be allowed one trip into the home to retrieve his belongings while accompanied by a law enforcement officer.

  Your husband may request a hearing to contest the Order or parts of it. If he does so, the hearing will be held within ten days, or five days if you were granted the exclusive use of your home. At the hearing the Court will listen to testimony and receive evidence to determine whether the Order should stay in place and, if so, whether it should be modified. If the Order remains in place it is valid for one year from the date it was signed.

  If you have an Order of Protection and your husband violates it, report the breach to the police immediately, and report every breach that occurs. Domestic violence is a community concern that is taken seriously by our police departments and judicial system. But please do not abuse the system by obtaining an Order of Protection without a valid basis for doing so just to get your spouse out of the house or to try to get the upper hand in your divorce case. In the end, it will hurt rather than assist your case, and you will be wasting valuable court resources.

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Alimony/Spousal Maintenance

• Spousal Maintenance
• When I divorce, will I qualify for "spousal maintenance"?
  
  

• To qualify to receive spousal maintenance (previously referred to as alimony), one of these circumstances must be true for you: You do not have enough property, including property you will be awarded in your divorce, to provide for your reasonable needs; you are unable to be self-sufficient or lack earning ability in the labor market to be self sufficient; you are the custodian of a child whose age or condition is such that you should not be required to seek employment; you contributed to the educational opportunities of your spouse; or your marriage is of a long duration and you are of an age that may preclude the possibility of becoming self-sufficient through employment.

• If I qualify, how much spousal maintenance will I get and for how long?
  
  

• If you qualify for maintenance, the amount and length of time you receive it will be based on: the standard of living during your marriage; the length of your marriage; your age, employment history, earning ability and physical and emotional health; the ability of your spouse to meet his or her own needs while meeting yours; the financial resources available to you as compared to those available to your spouse; your contribution to the earning ability of your spouse; the extent to which you reduced your income or career opportunities for the benefit of your spouse; the abilities of you and your spouse to contribute to future educational costs of your mutual children after the divorce; your financial resources, including assets awarded you in the divorce, to meet your own needs; the time necessary for you to obtain sufficient education or training to find appropriate employment; concealment, fraud or excessive or abnormal expenditures by either you or your spouse; and the cost of health insurance for each of you upon your divorce.

  In Arizona, spousal maintenance is "rehabilitative" in nature. Maintenance will be awarded in an amount and for a length of time that will enable you to become "self sufficient." This means different things in different cases, and to some extent is viewed in the context of the standard of living established during the marriage, especially is the marriage is of long duration. In certain circumstances, if your marriage is of long duration, if the earning abilities of you and your spouse are significantly different, and if it is not anticipated that during your lifetime you can become self-sufficient, you may receive maintenance for your lifetime.

  If you and your spouse agree on the amount and length of time you will receive maintenance, you may also agree that the maintenance is "non-modifiable" as to amount and/or duration. This means that no matter what happens to either of you during the term of maintenance, it cannot be modified. This is not the case if your case proceeds to trial and a judge enters an award of maintenance. In that case, your maintenance is subject to being modified by you or your spouse, upon a showing by either of you of "a substantial change in circumstances" after the original award. Maintenance ends upon your death, your spouse's death or your remarriage unless you and your spouse agree differently.

  Spousal maintenance will be taxable income to you and deductible by your spouse, unless the two of you specifically agree otherwise.

• When I was divorced 15 years ago, I was awarded lifetime spousal maintenance. I am planning to retire in the next few years. Can I ask the Court to increase my spousal maintenance to account for my reduced income? Will the Court use a formula based on my income and my former spouse's income?

• All spousal maintenance orders resulting from a trial are modifiable, meaning the award may be increased or decreased in amount or duration if certain criteria are met. If you settled your case, only if you and your former spouse specifically agreed in writing that spousal maintenance was non-modifiable would it be so. Thus, even a lifetime (sometimes referred to as "indefinite") award of maintenance may be modified. You must show there has been a substantial and continuing change of circumstances since the original order warranting a modification. The changed circumstances must not have already been considered by the Court when it made its original award. Additionally, your modification request must be made before the expiration of the spousal maintenance award (so, unlike a lifetime award, if your award was for five years, the request and the changed circumstances must occur before the five years is concluded). The fact of your retirement, and therefore presumably a decrease in your income, could certainly qualify as the pre-requisite "change of circumstances," as long as it was not anticipated or considered by the Court when it first awarded you maintenance. Also, the Court may attribute income to an individual if they are capable of working but choose not to do so. Thus, the reason for your retirement will be assessed. Are you retiring earlier than normal retirement age? If so, do you plan to or could you obtain other employment? Did your health force you to retire? The Court will also look at whether any circumstances have changed for your former spouse. If he or she is of a similar age and also retiring, the Court will consider that fact.

  There is no "formula" calculation for determining maintenance. The Court looks at numerous statutory factors in awarding and modifying spousal maintenance. (See www.hallierlaw.com, "Ask Angie" tab, "Spousal Maintenance" link, for a list of those factors.) The Court many times will utilize the following model: (1) What are the recipient spouse's reasonable needs in relation to the marital standard of living? (2) What income, including interest on investments, does the former spouse have to meet those needs? and (3) Can the paying spouse meet their reasonable needs while at the same time making up the budgetary shortfall of the spouse receiving maintenance? In a modification scenario, the Court is unlikely to substantially increase what it previously determined to be your reasonable budget, absent an extraordinary event.

  In sum, if the reason for your retirement is reasonable, if you cannot replace the income from elsewhere, if the fact you would likely retire at your present age was not already taken into consideration at the trial establishing spousal maintenance, and if your former spouse remains in a similar or better financial position than at trial, your spousal maintenance modification request may succeed.

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