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Arizona Family Law Attorney Discusses High Conflict Custody Cases

Thursday, January 13th, 2011

When recently in Court, one of the Judges commented on the high conflict in a case I am currently working on. To the parties, he let them know that most parents finalize their divorce and never need to return to Court. Of those that do need to return to Court, most of them only need to return a single time. However, there are a small minority of cases, known as high conflict cases, where the parents do not learn to communicate and work together to resolve difficulties that inevitably arise while raising children.

Though divorced, parents must still continue to work together as business partners, in the business of raising children. While the emotional involvement of the past may be completely gone, both parents must work together to ensure the best interest of the children. This can be difficult when one parent or both parents are shortsighted, self-centered, or unwilling to compromise and negotiate. Such cases often return to Court every few years for adjustments to the prior orders.

More often, if adjustments are needed, an experienced family law attorney can assist you in drawing up amendments or stipulations to modify prior orders based upon agreements reached between the parties. Proceeding without significant involvement of the Court reduces the cost and the emotional toll of high conflict cases. If you need to make adjustments or changes to your parenting orders or parenting agreements, and whether or not your case is high conflict or an agreement has already been reached but needs to be properly documented in an appropriate legal format, please call the family law attorneys at McGuire Gardner, PLLC at 800 899 2730 for your free initial telephonic consultation.

For more information, please visit our websites:

www.mcguiregardner.com or

www.yourarizonadivorcelawyer.com

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Spanking and Discipline During and After an Arizona Divorce

Wednesday, June 9th, 2010

Spanking and Discipline During and After an Arizona Divorce

While there is no law against spanking children as part of an overall discipline system, and many mental health professional agree that an occasional and properly used spanking may be an effective tool in raising children, parents going through a divorce or who have gone through a divorce should be very cautious about spanking their children.

During marriage, when both parents are working together as a team and support one another, spanking may be appropriate.  However, too often a spanking during a pending divorce or after a divorce may be blown out of proportion and designated by the other parent as child abuse or abusive behavior.  An unsporting parent can use a spanking to turn children away from the spanking parent as a form of parental alienation, or use the incident to commence a long and drawn out court battle.

Additionally, a spanked child that is in a loving home with two loving parents may receive a completely different message than would a child who is filled with self-doubts and confusion caused by the loss of his or her family and the structure that he or she was accustomed to prior to the divorce.  Children struggling with emotional setbacks may not respond the same to a spanking.

Furthermore, even if eventually proven to not have been abusive, the financial costs of defending oneself against a potential criminal child abuse case and a family law custody battle simply make it not worth the risk to spank a child or use any other form of physical punishment.

There are many books available, and counselors with whom one may speak with regarding alternate forms of discipline and punishment that may be more appropriate.

While it is important to maintain discipline during and after a divorce, one should be cautioned to consider the possible consequences before choosing to spank a child.


Please feel free to contact our firm for a free telephonic consultation.   www.mcguiregardner.com

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Division of Marital Property/Debts- Don’t Get a Cookie-Cutter Outcome

Monday, April 26th, 2010

Arizona law requires the “equitable” division of marital property and marital debts during a divorce. Generally this is intended to be an “equal” division, though there are some cases in which an equal division may not be a fair (or equitable) division.

Specifically, Arizona statute provides that the Court may consider “excessive or abnormal expenditures and the destruction, concealment, or fraudulent disposition of property.” A.R.S. § 25-318(C). Additionally, the Courts may properly consider “other factors that bear on the equities of a case.” Inboden.

For example, the Courts may consider the “length of the marriage; the contributions of each spouse to the community, financial or otherwise; the source of funds used to acquire the property to be divided; the allocation of debt; as well as any other factor that may affect the outcome.” Inboden.

Courts are trained to equally divide property in each case, as this is what occurs most frequently. Accordingly, if you believe that it would be fair that you receive a larger share of the marital property to make the division a fair division, you will need experienced legal counsel to present your case and convince the Court that your case is unusual and deserving of a different outcome than the cookie-cutter divorce that the Courts are accustomed to.

Please feel free to contact McGuire Gardner today to speak with an experienced family law attorney about your unique case.

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Child Support and Spousal Maintenance When One Party Voluntarily Reduces His or Her Income

Friday, February 12th, 2010

The Court can attribute to a party his or her earning potential when considering an award of spousal maintenance or child support.  There have been many cases in which one party will voluntarily quit his or her job and thereby reduce his or her income during the divorce process in an attempt to pay less child support and/or spousal maintenance.

 

In a prior  case, Little v. Little, the Appellate Court upheld the Trial Court’s right to attribute to the Husband his higher earning potential, even though he reduced his income by returning back to school.  The Court held that it was his choice to return to school and take a pay cut, but that this did not change the financial needs of his children. 

 

In a recent case, Pullen v. Pullen, issued December 24, 2009, the Appellate Court found that the logic in Little v. Little, carries forward into spousal maintenance cases also. 

 

This is not to say that the Court must or will always set child support and/or spousal maintenance based upon the highest potential income of an individual in all cases.  The Court must take into consideration the reasons for the reduced income, whether voluntary or involuntary, the impact upon the people entitled to support, the conduct of both parties, whether the reduced income was acquiesced to by both parties, and the timing of the reduction of income. 

 

If you believe that your spouse has improperly reduced his or her income to adversely affect child support and/or spousal maintenance in your case, or if you are being accused of improperly reducing your income and believe that you did so in good faith, please contact an attorney at McGuire Gardner P.L.L.C. for a free initial consultation by telephone to discuss your rights.  To learn more, go to www.yourarizonadivorcelawyer.com, or visit us at www.mcguiregardner.com. 

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Will the Judge Order the Other Party to Pay my Attorneys Fees in a Contested Divorce?

Tuesday, January 5th, 2010

Judges have the discretion under A.R.S. § 25-324 to order one party to pay all or part of the other party’s attorneys fees and costs incurred in a divorce or family law case.

 

In making an award of attorneys fees, the Court must consider two factors:  1) the relative financial resources of both parties; and 2) the reasonableness of the positions taken by both parties.

 

Generally, the more finances available to one party, based upon a higher earning capacity or sole and separate property belonging only to one party, the more likely the Court is to consider an award of attorneys fees. 

 

Also, the more unreasonable one party was in negotiations, or the more one party is at fault for causing the case to proceed to a contested trial, the more likely the Court will impose attorneys fees as a sanction. 

 

Courts prefer to have both parties pay for their own attorneys fees, unless one or both of the above factors stands out significantly.  I advise my clients to make decisions as if my clients will be left paying for all of the attorneys fees, as this is generally the result.  Incurring additional attorneys fees with the hope that the Court will make the other side pay for these fees may backfire, especially if the Court recognizes that you have done so and determines that doing so was an unreasonable position. 

 

To learn more and to schedule your free initial consultation by telephone, please call us at (480) 829 9081 or visit us at www.yourarizonadivorcelawyer.com. 

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McGuire Gardner announces new family law website.

Monday, November 9th, 2009

In order to better serve our family law clients we have launched a new website at www.yourarizonadivorcelawyer.com.  This site is to supplement our existing firm wide website at www.mcguiregardner.com, and will be focused on family law and related issues. You can find answers to your questions about family law issues, and learn about divorce, child support and other issues.  We have designed our site to be a resource for our clients, and for those who are seeking information about these areas of the law.  Stay tuned to this blog for up to date information about family law issues in Arizona.

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Arizona Divorce Lawyer comments on recent New York Times article regarding the “Fragile Families and Child Wellbeing Study”:

Monday, November 9th, 2009

In a recent article (November 2, 2009), entitled “Fathers Gain Respect From Experts” writer Laurie Tarkan, discusses recent studies and trends that recognize the importance of fathers’ involvement with their children.

Although fathers tend to spend time with their children in ways that differ from mother/child bonding, this time with fathers is important to the child’s development.

The article further discusses divorce related issues, and societal obstacles “conspiring” against fathers spending time with their children.

Children do better with a father when mother speaks positive about father.

The full article can be found at: http://www.nytimes.com/2009/11/03/health/03dads.html?hpw.

For more information, please visit our websites at www.mcguiregardner.com, or www.yourarizonadivorcelawyer.com.

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WHAT HAPPENS TO THE MARITAL RESIDENCE IN A DIVORCE?

Monday, September 28th, 2009

Many divorce clients are faced with the issue of having a single piece of real estate, which cannot readily be divided into two dwellings.  Their reasonable question is: what are the alternate ways of dividing the real estate?

 

In a divorce, the Court must equitably divide joint and community property.  As the house is not divisible, the three remaining alternatives are:  1) Husband buys out Wife; 2) Wife buys out Husband, and 3) The property is sold and the proceeds divided. 

 

While the first two scenarios may often be the simplest, there are still many potential issues.  Some of the difficulties include: how to arrive at a fair valuation of the real estate; should hypothetical real estate commissions be considered; who pays for the mortgage and utilities until the house is transferred; will the mortgage be transferred into the name of only one party; what is the time frame in which payment must be made; will the spouse being bought out have a security interest in the property until paid in full?

 

When the house is to be sold, and the proceeds to be divided, the potential issues are different.  Some of the difficult issues include: Who picks the sales price; Who selects the real estate professional; Who determines which offers to accept and which to counteroffer; Who, if either, remain living in the house until sold; Who is responsible for payment of the mortgage, utilities, and other expenses; Who is responsible for keeping the house in showable condition?

 

Once the house is sold, the parties also need to determine how to divide the equity.  Will the equity be used first to pay off certain debts of the parties?  Is one side of the other entitled to a disproportionate share of the equity to equalize other aspects of the divorce? 

 

Another variation to this third alternative is when neither party can afford the house, and the parties agree to allow the house to go into foreclosure and/or both parties anticipate filing for bankruptcy during or after the divorce. 

 

Because of all of these complexities, parties going through a divorce who own one or more pieces of real estate should have an attorney to ensure that their rights are protected and that any written agreement is explicit enough to avoid future litigation over ambiguous settlement terms.

For more information, please visit our website at www.mcguiregardner.com. 

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ARIZONA DIVORCE ATTORNEY DISCUSSES ALTERNATIVES TO TRADITIONAL DIVORCE:

Wednesday, April 22nd, 2009

  Under Arizona law, a marriage may be ended through a dissolution (divorce) or an annulment.  Another alternative occasionally used is a legal separation. 

 

            Each of these methods have much in common.  For example, in a divorce, annulment, or legal separation, the Judge must equitably divide any community property and community debts.  The Judge must make a determination of any custody and child support issues.  In a divorce or a legal separation (but not in an annulment), the court must make a determination on the issue of spousal maintenance.

 

            To obtain an annulment, a party must demonstrate that factors exist that renders the marriage void.  This may be demonstrated by showing that one of the parties was already married.  This is also demonstrated by showing significant fraud or misrepresentation prior to the marriage.  Such a showing of fault is not necessary in a divorce or legal separation.  Arizona is a no-fault divorce state, meaning that neither side must prove any specific wrong-doing by the other party to proceed with a divorce.  To obtain a divorce, all that must be shown is that one or more of the spouses believes that the marriage is irretrievably broken.  For a legal separation, a party  may demonstrate that the marriage is irretrievably broken, or simply that the parties desire to live separate and apart.

 

            Annulments are often sought after a very short term marriage, or when it is later discovered that one of the parties was still married when the parties were married.  One strategic benefit for seeking an annulment is when one party wishes to avoid paying spousal maintenance (alimony), as the Court cannot do so in an annulment case.  With an annulment, the Court retroactively eliminates the marriage, as if it never occurred.

 

            Legal separations are typically sought for religious or financial reasons.  Some individuals have religious beliefs against a divorce, and therefore prefer to become financially separated rather than divorced.  Because they are not divorced, neither party can remarry.  There may be financial advantages for a legal separation also.  For example, legally separated couples may still file taxes jointly, and may still include the spouse on medical insurance. 

 

            Ultimately, each case must be individually analyzed by an Arizona Attorney experienced in divorce and family law.  While most cases proceed with a standard dissolution (divorce), there may be some advantages to exploring these other legal options.

For more information, please visit our Website.

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