Posts Tagged ‘Father’s legal rights’

ARIZONA DIVORCE ATTORNEY DISCUSSES TEMPORARY ORDERS

Tuesday, April 30th, 2013

May 1st, 2013

When Temporary Orders Are Necessary in Arizona Family Law Cases

Submitted by Attorney Douglas C. Gardner

Temporary Orders often needlessly increase the cost of a divorce or family law case in Arizona.   In many cases, the extra cost to get temporary orders that are only in place for a few months are not financially justifiable.  However, in certain cases, temporary orders are necessary to balance the power in a case and ensure that both sides have fair negotiating position and to ensure that the children are not improperly used in a tug-of-war.

Most typically, the issues sought in temporary orders are child support, spousal support, parenting time, and exclusive use of a house or vehicle.

Temporary exclusive use of a house or car is often sought when the parties are unable to reach an agreement as to how to temporarily get along.  Sometimes temporary use of a house is required because of domestic violence by one party.  Other times, one party has moved out of the house, but refuses to respect the privacy of the other party still in the house.  Often exclusive use of the house accompanies a battle over parenting time.

Hopefully the parties to any case can reach agreements as to parenting time so as not to involve the children in a tug-of war.  However, when both parents have different expectations about parenting time, it may be necessary to involve the court.

Courts may be asked to enter any orders on a temporary basis that the Court has jurisdiction to enter on a permanent basis.  Your attorney can help you understand the costs involved and the value of obtaining temporary orders in any given case to assist you in deciding whether it is worth pursuing.

The long term value of temporary orders needs to be discussed with an experienced attorney also.   On the one hand, the orders are temporary and in that line should have no long term effect.  The Court’s final orders should be retroactive and if the temporary orders were too low or too high, the difference should be resolved.

On the other hand, too often the temporary orders do have significant effect on the case, settlement, and even the trial. It is important to get appropriate orders in place when sought by either party.

When a Court has held a temporary orders hearing and ordered temporary spousal support (for example) of $1,000.00 per month, this has a significant persuasive effect on both parties.  Knowing that the Court has heard the evidence (even if it was the short version of the evidence) the court already determined this to be an appropriate amount.  Generally, this will carry significant weight in settlement discussions.  Additionally, there are many judges that will simply order that final orders begin from the date of the final trial forward and will leave the temporary orders as they were.

Temporary orders as to exclusive use of a house will also increase a party’s likelihood of getting the house when both parties are seeking to be awarded the house in the final orders. The Court will see that one party has already moved out and it will therefore be more simple to leave that party in the house.

Prior to pursuing temporary orders, speak with your attorney about what you hope to accomplish, the costs of seeking to obtain your desired result, and the potential long term consequences of seeking temporary orders.

If you are involved in a divorce, legal separation, or annulment case or other family law case, if you are involved in a case in which temporary orders may be necessary, and if you have determined that you need experienced legal representation, please call 800-899-2730 and ask to speak with Douglas C. Gardner, or visit our website at www.yourarizonadivorcelawyer.com.

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CHILD SUPPORT ISSUES AFTER DIVORCE FROM AN ARIZONA DIVORCE LAWYER

Friday, March 1st, 2013

Arizona Divorce Lawyer Discusses What You Need To Know About Child Support Even (Especially) After Your Divorce or Custody Case Has Ended

Submitted by Attorney Douglas C. Gardner

Even after a divorce (or a custody case in which the parties were never married) has concluded, both parties need to know certain basics about child support.  Failure to understand these can result in substantial financial harm to a person, and serious injustices can occur when the law is applied rigidly.

    1. Unpaid Child Support:  Pursuant to A.R.S. § 25-503(J), unpaid child support may not be collectable unless court  papers are filed within ten years after your youngest child is emancipated.  Once a final judgment for unpaid child support has been obtained, there is no further need to  renew the judgment.  However, failure to obtain a judgment for unpaid child support within ten years may result in forfeiture of claims for unpaid child support.

 

While this has been greatly expanded in recent years to assist the recipient in collecting child support, a person who sits on their rights may not be able to come in many years later and seek to collect monies that have never been pursued legally.

    1. Modification of Child Support:  The amount of child support can be modified if there is a “substantial and continuing change in circumstances.”  The amount of child support is determined by the Arizona Child Support Guidelines, which is currently part of the Arizona Revised Statute Section 25-320.  Those guidelines are modified from time to time.

 

If incomes have changed, if insurance premiums have changed, if day care costs have changed, if additional children have been born or adopted, or if other financial issues related to the calculation of child support have occurred, you should speak with an attorney to see if this would result in a favorable change to your child support situation

    1. Termination of Child Support:  The obligation to pay child support for a child ends when the child reaches 18 (or when the  child is no longer attending high school, if the 18th birthday  comes before high school graduation).        Support for disabled children can go beyond those dates.

 

Keep in mind, however, that this references the “obligation.”  However, unless this is the last child, there is no automatic change.  A person wishing to reduce child support obligations for the emancipation of an older child will still need to request a modification for the remaining younger emancipated children. More on this below.

 

Also, if you believe your child is disabled to the point of not being able to provide for himself or herself, you should promptly contact an attorney to discuss obtaining an order that would continue child support beyond emancipation.

    1. Child Support Arrearages:  The law requires that if at a hearing to collect one month or more of child support arrearages, it  appears the payor is licensed or certified in an occupation or  profession or holds certain other State of Arizona business licenses or certificates, the matter will be referred to the licensing board, who may suspend the person’s license or put that license on probation.

 

If you are behind on your child support, contact an attorney to help you get this structured on a specific arrearage repayment plan.  If you are the recipient of a large unpaid child support, contact an attorney to assist you with getting the arrearage caught up and paid.

    1. Exchange of Information:  You are required to exchange certain information regarding child support every two years.

The law in Arizona requires the parties to exchange financial information every two years.  This allows each party to address whether they should request any update or revision of child support.

    1. Increase or decrease of child support:  There is no automatic increase in child support as a child reaches age 12, and no automatic decrease in child support as a child reaches 18 and is no longer attending high school, if support is still owed for another child.  But the amount can be modified at the time using procedures described in the Child Support Guidelines.

 

If you want to change child support, contact an attorney to assist you in getting the process started right away.

One of the greatest legal injustices that occurs often in family law cases occurs when parties have an “agreement” but not a court order to change child support.  You must understand that child support can only be changed by a court order.  When parties are in agreement, the Court will often sign the order without a trial or with a very abbreviated hearing to confirm the terms of the agreement.  However, without a court order, child support cannot really be changed.

Imagine the case in which in a divorce, Father receives the primary residential parent status, and Mother is ordered to pay $500.00 per month in child support.  One year later, the parties agree to have the child live instead with Mother, and “agree” to have no child support.  10 years later, the child is now turning 18, and Father goes back to Court and asks to have the 10 years of child support arrearages enforced.  The Court would have no choice but to enforce the only child support that was ever entered, which was the $500.00 child support order from the divorce.  As no child support was paid for 10 years, Mother now owes 120 months of $500.00 per month, or $60,000.00 plus a substantial amount of interest.  Do not let this happen to you.  If you have an “agreement” that is different than the actual court ordered child support amount, call an attorney immediately to try and get this resolved and corrected.

If you are involved in a divorce, legal separation, or annulment case or other case involving children, parenting time and legal decision making issues, and if you have determined that you need experienced legal representation, please call 800-899-2730 and ask to speak with Douglas C. Gardner, or visit our website at www.yourarizonadivorcelawyer.com.

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Last Month For Custody

Monday, December 10th, 2012

Arizona Divorce Lawyer Says Goodbye to Custody

Submitted by Attorney Douglas C. Gardner

I mentioned this in my blog last month, but this is so huge I wanted to address it once more.  Goodbye Custody.  In a recent seminar, where most of the top divorce and family law attorneys and many of the family law judges were gathered, the primary topic was the end of “custody.”

One attorney suggested a marketing campaign of “Last Chance to Get ‘Custody!’”  Most people have no idea that they will no longer be able to go to court to get custody beginning January 1, 2013.

While this may sound like a big change, it is primarily semantics.  Sole Legal Custody and Joint Legal Custody are being replaced with the terms “Sole Legal Decision Making” and “Joint Legal Decision Making.”

At least initially, not much changes except for the wording.  There are several other changes to the law that will over time alter the trajectory of the family law changes that have been happening for decades.

If you need to establish “custody” or “legal decision making” for the first time, or if you have a custody order and you are returning to Court, beginning in January the Courts will be required to put into effect orders for “legal decision making.”  Existing “custody” orders will remain valid, but as each case returns to court, the new replacement orders will no longer include the “custody” terminology.

Do not let this scare you.  While this is your last month to get Custody, very little has actually changed in the short term with this new law. Over time, we will continue to see important changes and you will want to ensure that you are represented by an attorney that is aware of these changes and in tune with the ever-changing law.

If you are involved in a divorce case or other parenting time case involving “legal decision making” (the new word for legal custody), or other simple or complex issues and want experienced legal representation, please call 800-899-2730 and ask to speak with Douglas C. Gardner, or visit our website at www.yourarizonadivorcelawyer.com.

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Arizona Dependency Deductions

Friday, October 12th, 2012

GILBERT, TEMPE AND MESA ARIZONA DIVORCE AND FAMILY LAW LAWYER DISCUSSES CLAIMING CHILDREN FOR TAXES

Submitted by Attorney Douglas C. Gardner

 I was recently honored by an invitation to speak before a large group of local accountants and todiscuss with them issues involving an overlap between their accounting and CPA practice and my legal practice as an Arizona divorce and family law attorney.

I had gathered several topics that I wanted to address with them, and was prepared to speak for my allotted time.  As I delved into the issues I had prepared, the questions that surged from the audience quickly led me to the one issue that they most wanted to discuss, who gets to claim the children as dependency deductions and credits in Arizona. 

The problem lies in the fact that tax law or IRS regulations are federal, and divorces in Arizona are governed by state law.  Generally, when federal law covers an issue, it trumps or overrides conflicting state law.  However, with regard to claiming children, the IRS law recognizes that in divorce cases the divorce court should have the discretion to divide the right to claim children.  In fact, IRS provides for the general rule, which is that the parent with whom the children reside with for more than 50% of the time claims the children.  The stated exception, however, is that a state divorce court can order this division to occur otherwise. 

To accomplish this, the IRS requires a parent that is able to claim the children pursuant to a Court Order, but that does not have the children at least 50% of the time, to complete a Form 8322.

IRS has over the past few years tightened its regulations and no longer accepts court orders as evidence of who can claim the child, but strictly requires the form 8322.

The accountants wanted to know what they should do or advise the client to do when the wrong parent claimed the children or refused to sign the form 8322. 

As IRS now strictly requires the Form 8322, the sole recourse is to return to Court and ask the Court to strictly enforce the prior orders regarding claiming the children. 

Many clients have concerns with the costs of returning to court.  Having done this many times, the best way is to narrowly draft the documents filed with the Court and try to limit it to a single prompt emergency hearing on this single issue.  Sometimes, this can be handled with a single demand letter from an attorney and court can be altogether avoided. 

 

Generally, the Court will not be at all pleased with a party who has willfully disobeyed a court order.  The Court will often impose sanctions upon such a party, which may include payment of some or all of the attorneys fees involved. 

If you are involved in a divorce case involving child support, tax issues regarding the children, or other simple or complex issues and want experienced legal representation, please call 800-899-2730 and ask to speak with Douglas C. Gardner, or visit our website at www.yourarizonadivorcelawyer.com.

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Increasing Prevalence of Half-Time Schedules

Monday, September 3rd, 2012

By Attorney Kirk Smith

Mothers in the past were typically the parent of first choice when it came to receiving primary physical custody of  minor children. The orders of the court usually allotted more days each week to the mother, rather than the father.  Today most judges in Arizona take a more egalitarian view when it comes to allotting what amount of time each parent should spend with the minor child(ren). Due to this evolution in thinking, half-time schedules between parents are becoming much more prevalent in divorce and custody cases.

A half-time schedule is one where each parent is allowed close to, or exactly one half the amount of time each week or two week cycle, with their child(ren). Half-time schedules can be broken up in various ways depending on the availability and preferences of the parents. Some examples of half-time schedules are; 7-7, 2-2-3, and 3-3-5.

A 7-7 schedule would be one week with mom, then, one week with dad. A 2-2-3 schedule would be two days with dad, then two days with mom, and alternating weekends with mom or dad. So long as the time period in question, which generally would be a week or two week cycle, is split in a relatively even fashion it is considered a half-time schedule.

Good news for any non-custodial parent who is wanting more time with their child(ren) but was afraid that the courts would only give them every other weekend. This is not to say, that if historically speaking, one parent has spent more time with the child(ren) then the other, that the courts won’t look at this factor in making an appropriate decision. None the less this factor alone is not always outcome determinative and will be one of several factors the court can consider.

For a parent wanting to request a half-time schedule from the courts, that parent should keep in mind the age of minor child(ren) in devising which half-time schedule they would like to propose. Studies have shown that younger babies or toddlers need more frequent contact with both parents, whereas, older children can go longer periods without seeing either parent. Consequently, a one week on and one week off schedule would not be the best half-time schedule to propose for a very young child. Under those circumstances a better suggestion to the court might be to propose a 2-2-3 schedule to accommodate the minor child’s(ren) burgeoning emotional needs.

Nothing is ever guaranteed when going to court to resolve disputes between parties. Regardless, a non-custodial parent who has consistently “been there for their children” has a much better chance today, then in the past, of seeing their child(ren) at least one-half of the time.

If you are in need of legal counsel and would like to speak with an experienced family law attorney, please call 800 899-2730  or visit our website at www.yourarizonadivorcelawyer.com. or www.davismiles.com

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ARIZONA DIVORCE LAWYER: FATHER’S RIGHTS IN ARIZONA CUSTODY CASES

Monday, July 16th, 2012

Submitted by Attorney Douglas Gardner

 

East Valley Divorce Attorney Discusses Father’s Rights in Divorce Cases

 

 

Arizona has moved forward in terms of Father’s rights recently, which changes how cases should be handled whether you are the Mother or the Father.

 

In the 1970s and 1980s, a typical custody order would have the children reside with the Mother, and Father would see the children on alternating weekends and two weeks during the summer.  As we moved into the 1990s and the 2000s, Father’s rights and Father’s role in raising children received significant attention from mental health professionals, which trickled its way into state laws and into the courtroom practices of judges.  Weekday parenting time to the Father became more common, and alternating holidays, equal sharing of summer and Christmas school recess became more common.1155156

 

Over just the last two years, the Courts have moved beyond this, to much more often awarding equal parenting time when the parent’s live close enough to allow the children stability in school while residing with both parents. 

 

Moving to equal parenting time has its pros and cons.  Many children feel like they live at neither house, but “camp” at both houses and move back and forth.  Other children enjoy the significant relationship with both parents being much more involved.  Equal time parenting plans allow both parents to have their own time as well as parenting time, and can balance the various difficulties  in life including jobs and other responsibilities.  However, Equal time for many mother’s necessarily includes reduced parenting time. 

 

One difficulty often ran into is societal expectations.  While these changes are great for Father’s that want to be more involved, many mother’s feel that the Court has punished them because they are familiar with other families in which the Mother was named the primary parent, and they feel that they are as good or better of a parent than this other parent.  Such comparisons fail to account for the dramatic changes in the law over just the past few years. 

 

1345577While many Father’s enjoy this additional time with their children, some Father’s realize that having the children 50% of the time causes them to be away from work more of the time, as schooling, sick children, and other issues are now falling on their parenting time 50% of the time. 

 

Equal parenting time is not appropriate in all cases.  I still see many cases in which Father or Mother can provide a better life style, stability, safe environment, and other factors and in which we can persuade the Court to award my client’s more than 50%/50% custody.  However, proving that such is the case requires a solid case and a well prepared trial plan. 

 

If you are experiencing legal issues involving custody or other difficult issues, whether as part of a divorce, after the divorce has already been entered, or a custody battle in which the parents were never married, you should have experienced legal counsel on your side. Please call 800 899-2730 and ask to speak with attorney Douglas C. Gardner, or visit our website at www.yourarizonadivorcelawyer.com.

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Strategic Reasons for Being Nice-Custody Determination

Friday, June 8th, 2012

 

Submitted by Attorney Kirk Smith

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In many cases, parents divorcing, or parents who were not married but are now separating, will fight a merciless custody battle for their children. The extreme acrimony attendant with such battles, in my experience, can have a very real impact on the children of these divorces. Increased cooperation between the parents lessens this emotional impact, and by itself, should be sufficient incentive for most parents to “play nice” during the subsequent legal process.  

 

None the less is there a strategic reason for one parent to be gracious to the other, outside altruism, that benefits them in the court’s final custody determination?  

 

In most cases one parent will become the primary physical custodian of the children, meaning that that parent will have the children at their residence the majority of the time each week. There are specific statutory factors the family law court examines when determining who becomes the primary physical custodian of the children. See Generally A.R.S. §25-403. 

 

One of the factors the court looks at in determining who should receive primary physical custodianship is;

 

Which parent is more likely to allow the child frequent and meaningful continuing contact with the other parent. This paragraph does not apply if the court determines that a parent is acting in good faith to protect the child from witnessing an act of domestic violence or being a victim of domestic violence or child abuse.A.R.S. § 25-403 (6)

Of course in some cases the other parent is a real danger to the children therefore it is necessary to diminish that other parent’s time with the children or ask that it be supervised. More often then not, however, both parents are usually suitable to care for the children, and an attempt to completely eliminate the other parent’s time with the children will be seen by the court negatively. The parent trying to “thwart” the other parent’s visitation with the children then could seriously and detrimentally effect that parent’s  chance of becoming the primary physical custodian because that parent did not “allow the child frequent and meaningful continuing contact with the other parent.”

If you are in need of legal counsel and would like to speak with an experienced attorney, please call 800 899-2730  or visit our website at www.yourarizonadivorcelawyer.com. or www.davismiles.com

A rule of thumb, assuming that the other parent is not a danger to the children, is to allow and encourage the other parent’s time with the children. This does not mean that you must have a half time schedule with the other parent, nor does it mean that anytime the other parent asks for time it must be provided. What it does mean is that going to extremes by trying to eliminate the other parent’s access to the children without good cause, strategically speaking, can backfire and decrease your chances of gaining the final custody determination from the court you wish.

 
 
 
 
 
 

 

 

 

 

 

 

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RELOCATION ISSUES

Tuesday, May 29th, 2012

Seasoned attorney, Ron Fineberg, addresses the issue of relocation and what Arizona law requires of parents. 

 

Q&A’s

 

Question:

11551571Our divorce was final two years ago.  The father and I were granted joint custody of our two minor children with substantially equal parenting time (visitation).  Because of my job, I need to move to California.  What do I do if the father will not agree to allow the children to move with me?

 

 

 

Answer:

 

Under those circumstances, Arizona law requires that the parent who wishes to “relocate” with a child outside of the state, or more than one hundred miles within the state, must provide the other parent written notice by certified mail, return receipt requested, at least sixty days prior to the anticipated relocation.  If the non-moving parent opposes the relocation, that parent may petition the court to prevent relocation of the child.  The petition to prevent relocation must be filed within thirty days after the notice is made, otherwise the petition to prevent relocation may be granted to the non-moving parent only upon a showing of good cause. 

 

If the petition to prevent relocation is timely filed, it is then up to a judge to determine whether or not to allow the parent to relocate the child after considering the “best interests” of the child.  The burden of proving what is in the child’s best interest is on the parent seeking to relocate the child.  A.R.S. §25-408, 25-403(A) and ARFLP 91(E).

 

If you are in need of legal counsel and would like to speak with an experienced attorney, please call 800 899-2730  or visit our website at www.yourarizonadivorcelawyer.com. or www.davismiles.com 

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TEMPE AND MESA ARIZONA DIVORCE AND FAMILY LAW LAWYER COMMENTS ON COMMON TAX ISSUES

Thursday, May 3rd, 2012

Arizona Divorce And Family Law Tax Issues Must Be Considered Year Around By Attorneys and Parties

In dealing with hundreds of divorce and family law cases, parties and even many lawyers often forget to include provisions regarding common tax treatment. These important financial issues should not be overlooked.  As the April tax deadline for 2011 is behind us, we must nonetheless continue to look at 2012 and future tax years in all settlement and trials.

The most common issues is the claiming of the children for tax exemptions.  Under the federal Internal Revenue Service (IRS) rules, the parent with whom the child resides the greater part of the year is entitled to claim the child as a general rule.  The Federal IRS rules do, however, allow for the State Court divorce judge to make a different allocation.  Under Arizona family law, the statute requires that in most cases the Judge must divide the claiming of the children proportionate to income.  As far as the IRS goes, this is taken care of by the use of form 8332 which can be found online or obtained through a tax preparer.

It is to the benefit of both parties to consider who will benefit most from the tax exemption.  In some cases in which one party will receive a substantially greater advantage than the other party, one party can be permitted to claim the child every year in exchange for an increase or decrease in child support.  This would be done by agreement of the parties and should be included in an Order signed by the Court.

Another common issue is whether to file jointly or separately.  It is often financially advantageous to file jointly, though in high conflict cases the difficulty in working together toward a common goal may outweigh the financial advantage.  The total tax return can be divided equally in some cases.  In other cases, it is more fair to calculate the two returns separately, and then determine how to split the incremental increase in the refund if the parties file jointly.  Talk with your tax preparer or CPA regarding filing jointly or separately, and work with your divorce or family law attorney to ensure that your agreement is written in such a way to maximize your tax benefit.

There are tax advantages to being able to file as the head of household.  Generally this can be claimed by the parent with the child the majority of the time.  If divorcing couples have more than one child, they may each be able to claim at least one child as the head of household.  This should be reviewed by your tax preparer or CPA, and worked through with your divorce and family law attorney.

In some cases, it may be advantageous to file single, rather than married filing separately.  Even if your divorce case has not concluded, there are specific rules that when applicable may allow a party to file a single.  These rules include maintaining a separate residence for all of the past six months of the taxable year, and maintaining over half of the cost of maintaining the home.  You should work through these issues with your tax preparer or CPA, and work with your divorce lawyer to ensure that any agreements or court orders permit you to file as you have been advised by your tax professional.

Because the tax issues can be complex, you should ensure that you work with an experienced family law attorney or divorce lawyer.  If you are involved in a divorce or custody case, and are looking for experienced representation involving tax issues or other complex issues, please call 800 899-2730 and ask to speak with attorney Douglas C. Gardner, or visit our website at www.yourarizonadivorcelawyer.com.

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