Phoenix Family Law Attorney Blog

Arizona Attorney Discusses Perils of Non-Modifiable Spousal Maintenance:

Any spousal maintenance ordered by the Court after a trial or hearing must, by law, be modifiable as to the amount and duration.  In other words, no matter what is ordered after the trial, the Court can later revisit the issue, and if there has been a substantial, significant and continuing change in circumstances, the Court can increase or decrease the award, and can increase or decrease the duration of the award, including ending the award altogether.

A.R.S. § 25-319 (c), however, allows parties to reach an agreement that spousal maintenance would not be modifiable, and is set in stone.  This is a double edged sword, as the party agreeing to non-modifiable support may later wish to increase what he/she is receiving or decrease what he/she is paying because of future financial changes. 

For most payments owed to creditors or former spouses, devastating financial conditions can be remedied by filing for bankruptcy and asking the Bankruptcy  Court to reduce or eliminate certain debts.  However, since 2005, the Bankruptcy Court cannot discharge spousal maintenance or other domestic support obligations owed to a spouse or former spouse. 

Beware of agreeing to non-modifiable spousal maintenance, as none of us can know what the future holds. 

If you would like a free telephonic consultation regarding your family law case, please contact McGuire Gardner at (800) 899-2730 or visit us at www.yourarizonadivorcelawyer.com .

An issue that arises in many bankruptcy cases, is whether or not prior attorneys fees can be discharged in bankruptcy.  In divorce or family law cases, amounts owed to a spouse or former spouse for child support or spousal maintenance are not dischargeable, and other amounts owed to a spouse or former spouse may be dischargeable only in a Chapter 13, but not a Chapter 7 case. 

If an individual is ordered to pay attorneys fees directly to the attorney, in many cases this would be a dischargeable debt.  However, a spouse left owing the attorneys fees may be able to challenge the dischargeability of the debt claiming that the debt arose out of a divorce order (and that by allowing the discharge to occur, the other spouse would then be on the hook for the amounts owed).  In such cases, the attorneys fees are generally still dischargeable in a Chapter 13 case, but may not be dischargeable in a Chapter 7 case. 

If the Order specifically requires payment to the spouse or former spouse, such debts would generally not be dischargeable in a Chapter 7 case, but often dischargeable under a Chapter 13 case. 

If you are involved in a case in which you are seeking to discharge money owed to a spouse or former spouse or their attorney, or if you are trying to enforce payment of funds owed to you or your attorney by a spouse or former spouse, please contact McGuire Gardner at 800 899-2730 or visit us at www.mcguiregardner.com for more information.

In cases in which one or both parties own a business, the Court is often asked to determine the value of the business as part of the division of assets and debts between the parties. 

In some cases, the value of the business is readily determinable.  In other cases, an expert business evaluator is brought in as a joint expert or each party brings in his/her own expert. 

It is beneficial to have an attorney with business background, including accounting background or other business experience. 

My own background in accounting, and my M.B.A. through ASU, has been very beneficial in cases in which complex accounting, appraisal, or other evaluations are needed.

If you have a family law case in which a business will need to be evaluated, or complex accounting records will become important exhibits, please call 800 899-2730 and ask to speak to Attorney Douglas Gardner, or visit us at www.yourarizonadivorcelawyer.com to learn more. 

ARIZONA DIVORCE LAWYER DISCUSSES DIVISION OF MONEY AND ASSETS:

A common concern among my clients as their divorce case is getting started is how are liquid assets such as money and bank balances to be divided.

The general answer is that because Arizona is a community property state, each party is entitled to half of the liquid assets that exist as of the time the divorce case is commenced. 

Occasionally one party will take the full amount and refuse to share it with the other spouse, often financially coercing them into submission because of the lack of funds for food, attorneys fees, and other essentials.  This problem can often be remedied through Court intervention by requesting temporary orders from the Court including dividing up the money.

The Preliminary Injunction, which is issued at the time the initial pleadings are filed, also requires that neither party hide or conceal assets. 

In cases in which money was taken, hidden, absconded with prior to filing, our attorneys can help you make a claim for marital waste to recover the money wasted or taken during the marriage, or request that the Court make an un-equal division of the remaining assets on a theory that the wasting spouse already wasted a part of his/her share of the community assets.

To learn more about how assets should be divided, or how you can protect your assets, please call our office at (800) 899-2730 for a free telephonic consultation or to schedule an in office conference with an attorney.

TEMPE ARIZONA DIVORCE LAWYER DISCUSSES MOTIONS FOR CONTEMPT

During the course of many divorce and family law cases in Arizona, one party may violate a court order or the Preliminary Injunction (which has the same effect as a court order).  The other party may, in certain cases, want to bring this to the Court’s attention and have the violation remedied.  This is often done through filing a Motion for Contempt of Court.

To prove contempt, the party will have to demonstrate the existence of a clear Order or that the Preliminary Injunction was in effect.  The party will also have to prove that the Order or Preliminary Injunction was violated.  Finally, the Court requires proof that the violation was willful, and not beyond the control of the party alleged to be in contempt.

If a Motion for Contempt has been filed against you, you may defend yourself by showing that there was no such Court Order, that you were not aware of the Court Order, or that abiding by the Court Order was not within your power.  For example, if a party is alleged to have failed to pay child support, he or she may avoid being found in contempt by showing that the Order was not valid, that he or she was unaware of the Order, or that he or she did not have the ability to make the ordered payments.  Not being in contempt would not necessarily eliminate the obligation to pay the ordered child support, but would aid in avoiding contempt and any sanctions that the Court would impose.

 If you would like a free telephonic consultation regarding your family law case, please contact McGuire Gardner at (800) 899-2730 or visit us at www.yourarizonadivorcelawyer.com .

WHAT TO DO IF EX-SPOUSE IS NOT PAYING SPOUSAL SUPPORT (ALIMONY OR SPOUSAL MAINTENANCE)

Non payment of spousal maintenance is an issue often litigated in Arizona family law courts. 

Spousal maintenance payments more than five years overdue usually cannot be collected, unless that deadline has been extended by papers filed in court within 90 days before the deadline.  A judgment must be obtained prior to the expiration of the five years.  If you have a claim for spousal maintenance for which some of the payments were due several years ago, you may want to speak with an attorney right away before you lose your right to collect this money owed to you.

Failure to pay spousal maintenance can result in criminal charges (class 1 misdemeanor) when the person ordered to pay has notice of the order and willfully and without lawful excuse fails to comply with the terms of that order.  See A.R.S. § 25-511.01.

A competent family law attorney can assist in collection cases where spousal maintenance, child support, or other money is owed by a former spouse.

If you would like a free telephonic consultation regarding money owed to you, or money being collected from  you, or other family law issues, please contact McGuire Gardner at (800) 899-2730 or visit us at www.yourarizonadivorcelawyer.com .

EAST VALLEY ARIZONA  ATTORNEY DISCUSSES COST OF DIVORCE

 Potential clients calling in on a free initial telephone consultation often want to know the cost of a divorce and who will pay for the divorce. 

 Arizona Court Filing Fees:  To file a dissolution of marriage (divorce) case in Arizona, the petitioner must pay the initial filing fee.  This varies from county to county within the state but is often around $300.00.  The Respondent would then pay a similar “Response Fee” in order to file a Response in the case.  Even in uncontested cases, the Respondent must pay the Response Fee, except when the case proceeds by default.

 The Court may order one party to pay for all, or a disproportionate share of all of the costs including filing fees and attorneys fees in certain cases.  The Court must look at the income and financial resources of both parties and the reasonableness of the positions taken in each case to make such a determination. 

 If you would like a free telephonic consultation regarding your family law case, please contact McGuire Gardner at (800) 899-2730 or visit us at www.yourarizonadivorcelawyer.com .