Holiday Parenting Plans

Holidays are a stressful time of the year, especially for divorced or separated couples. The financial burden that families face is not the only obstacle for families with parenting plans or other orders in place.  Dividing holiday time between parents, especially when long-distance relatives and travel schedules are involved, can be challenging even for separated parents with a good co-parenting relationship.

Holiday Dinner

Determining how to split time for the holidays may be overwhelming, but it is crucial to have a specific written plan. Children need to feel secure and be placed in a stable environment. Establishing parenting time for holidays will reduce anxiety for both the parents and children.  Older children, especially, benefit from a clear schedule known well in advance of the holiday, especially if the plan incorporates how the children wish to spend their time. Children should have the opportunity to spend this special time with each parent and their extended families.

In Arizona, planning holiday parenting time is often made more difficult by non-uniform school schedules and seasonal residency.  Sometimes, children in different schools (e.g., a younger child in elementary school and an older child in high school) have different release dates, shorter or longer holiday break periods, and even intersession classes.  This is especially true for families with younger children in local schools, such as Copper Canyon Elementary in Scottsdale, but whose older children attend schools in different cities, like Brophy/Xavier College Preparatory in Phoenix.

Contract

Moreover, parents should try to maintain the traditions the children have enjoyed in previous years, especially in the first holidays after a separation or divorce.  Children often struggle to come to terms with their new living arrangements when families split; accordingly, providing them with a familiar and comfortable holiday reinforces the children’s understanding that their parents still love them just as much as they did when they were together.

Logistically, parents should decide whether (and which) holidays can be spent together, should be split in partial days, or should be alternated each year. For instance, many families may divide the time on some holidays, such as dividing morning and evening on Christmas Day, but alternate which parent has parenting time all day on Halloween each year. Whether a family’s decision is to alternate holidays or divide, making this decision should be prioritized and must, per Title 25 of the Arizona Revised Statutes, promote the children’s best interests.

Often, high-conflict divorces and separations reach the boiling point when holiday schedules are discussed.  Although it’s never too late to draft a firm parenting plan, there is tremendous benefit to starting the discussion early to ensure that a good parenting plan is in place before other arrangements are made.  When deciding how to handle the holidays, be specific and put your children first.

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Should I Get a Divorce?

Everyone experiences difficulties at various points in life. These concerns can be numerous and minor, few and severe, or any combination between. Families endure financial hardship, healthcare problems, emotional and psychological differences, domestic disputes, births, deaths, and sometimes legal trouble.  For married couples, these and other issues may lead spouses to consider divorce.

The question of whether to seek a divorce in Maricopa County can trouble a person for years because the process and consequences of legally dissolving a marriage are complex and frequently change.  Some people may not know anyone who has divorced, or they may know people whose hardships only increased after beginning the process.  Others may have outdated ideas about dissolution based on rules that no longer apply. Still more may understand the process but are not able to weigh the consequences on their own.  Here are some tips and observations to enlighten your decision.

What is a dissolution?

Which Way To Go?In Arizona, ‘dissolution’ describes the process of legally ending a marriage (the same process that most people call ‘divorce’). Dissolution differs from annulment primarily in the court’s treatment of marital property because dissolution dissolves a marriage while an annulment treats the marriage as if it never existed because of some technical flaw in its formation.  Parties whom the court acknowledges were married are typically entitled to a more comprehensive analysis and distribution of community assets than parties whose marriage should never have been granted (because, for example, one of the parties was under 18 and lacked legal capacity to marry without parental permission).

How do I get started?

Dissolution begins when one of the spouses files a Petition for Dissolution with the appropriate court (in Arizona, this is usually the Superior Court for the county in which one of the parties resides).  For example, a married couple living in Scottsdale would likely file their dissolution action at the Superior Court of Maricopa County unless they have not lived in the state long enough to establish jurisdiction.  The petition tells the court the information that it needs to confirm that the parties filed in the correct jurisdiction and lays out the issues that the petitioner needs to have resolved, such as division of marital property, orders for spousal maintenance, child support, parenting time, and legal decision-making authority (formerly called custody).  Once the judge receives the petition and supporting paperwork, he will issue a preliminary injunction that orders the parties to maintain the ‘status quo’ by not unnecessarily depleting bank accounts or disposing other assets until the dissolution is complete.

Do I need to have a reason for divorce? 

Arizona, like most states, does not require fault by one of the spouses before dissolving a marriage.  Under the old system (abandoned decades ago), courts would only grant divorces if some form of marital impropriety occurred, such as adultery, abandonment, or domestic violence.  Only uncommon covenant marriages maintain limited permissible bases for divorce that are established by contract before the parties marry.  For non-covenant marriages (the vast majority), the petitioner need only declare in the petition that the marriage is irretrievably broken to begin the dissolution proceedings.  Courts may still consider marital misconduct when dividing property or scheduling parenting time, but the days in which couples attempted to fabricate a basis for divorce are over.

My spouse has all the money.  How can I afford a divorce?

With virtually infinite permutations of marital roles, it is extremely common that one spouse earns significantly more money than the other.  Sometimes, one spouse controls most of the family’s financial affairs and the other is unsure of the existence or whereabouts of community assets.  Unequal access to marital resources may work fine during the marriage, but it can also provide a basis for exploitation and stop an aggrieved spouse from seeking a divorce.

The fear of being ‘frozen out’ during dissolution proceedings should not prevent you from divorcing if you believe the marriage should end.  Even before a final judgment dividing the community property, the judge can issue temporary orders requiring the higher-earning spouse to pay spousal maintenance and other expenses during the case.  Spousal maintenance payments may continue after the divorce if one of the parties lacks substantial earning capacity or needs long-term support.  Sometimes, the judge will also order one spouse to pay the other spouse’s legal fees, especially if the higher earner acts unreasonably during negotiations.  Arizona law is structured to give parties with less bargaining power access to the same protections available to the high-income spouse.

Kid in Sprinkler

What if I lose my kids in the divorce?

There is no denying the fact that dissolving a marriage takes a toll on everyone in the family.  One of the biggest fears that traps people in toxic marriages is that the other parent will take the kids and the family will be destroyed.

First, Arizona law strongly favors granting as much parenting time to each parent as possible.  Unless there is some reason to believe otherwise, such as domestic violence or criminal history, the court presumes that each parent is fit to raise the children and that the children’s interests are best served by having a meaningful and continuing relationship with each parent.

Although many parties threaten that they will ‘battle for custody’ to prevent their spouse from proceeding with a divorce, the determination of where the children will live and spend their time depends on the children’s best interests, not the persistence or finances of one of the parents.  Unless your background or actions during the proceedings cast doubt on your ability to raise your children, your spouse cannot exclude you from their lives.  If your marriage is toxic beyond repair, it may be best for your children for you to divorce instead of keeping them in a marital home filled with conflict.  If you or your children need counseling to get through the process, that expense can also be included in the temporary orders.

Is being divorced worth getting divorced?

Whether you want to remain married is an immensely difficult question to answer.  If you are truly unhappy in your marriage, however, you should not allow fear of the legal process to trap you in a toxic or dangerous situation.  An experienced attorney with strong networking skills can get you the help you need to make an informed decision and, if you decide to seek dissolution, to make the proceedings move as smoothly as possible.  When the quality and fulfillment of your life is at stake, a positive outcome is worth investigating.

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Special Divorce Considerations for Physicians

After representing numerous doctors (and the spouses of doctors) in Arizona, we realize that physician divorces are different.  It is not that the law treats doctors uniquely — there are a host of considerations that are not present in many other divorce scenarios.  Sure, there are the usual issues, but there are complicating factors unique to physicians, such as valuation of medical practices, high asset divisions, as well as spousal maintenance claims.Doctor

There are no clear studies on physician divorce rates, but one recent article did not glamorize success rate of doctor’s marriages.  Although the accuracy 0f these statistics is not perfect, it is indisputable that these dissolutions necessitate a different level of attention because of the issues involved.  Physicians generally have complex financial issues that begin with oppressive student loans, but are also typified by numerous investments including homes, vacation homes, timeshares, retirement accounts, financial accounts, non-traditional investments, and the medical practice itself.

While not meant to be comprehensive, we put together a list of special considerations that are generally critical to physician divorces.  We use this list when initially consulting with physicians (or their spouses) to gather information necessary to form a deliberate legal strategy:

1.  Spousal maintenance:  In Arizona our statute details factors for the Court to consider in awarding maintenance (elsewhere known as alimony).  These factors include, but are not limited to, length of marriage, standard of living during the marriage, and the disparity of income.  While we have seen a number of physician/physician divorces, we also frequently see cases in which the physician’s income is significantly higher than that earned by the spouse.  Sometimes, the non-physician spouse can also argue that they supported the physician through medical school and residency and gave up their own opportunities in the process.

Doctor with xray2.  Practice valuation: Some medical practices have an actual value, much like if the family owned a restaurant.  In Arizona, the spouse would have a claim to their community share of the practice value.  However, this does not apply to all physicians.  For example, an Emergency Room doctor who is employed by an ER practice may simply be paid a rate for his work, much like the hospitalist trend that has taken root here in Arizona.  In those situations there would not be a value to the practice.  However, if that ER doctor were a partner and had an ownership interest in his practice, the analysis would be significantly different.  Similarly, some medical offices have assets to value, such as a radiology practice that owns MRI machines.  Some of these machines have used market values in excess of $1,000,000.  If the physician spouse purchased the machine and paid it off during the marriage, the non-physician spouse could be entitled one-half the value of the equipment.

3. Debts:  It is not uncommon for physicians to have large student debts that still need to be paid off.  Furthermore, while some physicians may be very conscientious of the state of their marital financial affairs, others may be simply too busy and stressed with work to know the intimate details.  For example, they may have no clue that their spouse has racked up significant credit card debt, which is presumably community debt to divide in a divorce.  Knowing what debts you have and your options for ensuring that they get paid, including offsets from other property or even reduced maintenance, is key to a comprehensive settlement.

4. Parenting Time:  Some physicians have routine and well-established schedules.  Others do not and may work a rotating schedule with abnormal hours.  Still other divorcees may be in medical school and looking at internships, residencies, and other jobs that may require relocation.  These all play an important role in determining parenting time for the children.  For physicians, or soon-to-be physicians facing divorce, it is important to maximize the quality parenting time with your children.  Your parenting plan may need built-in flexibility or other creative ways to deal with potential scheduling issues that may arise. Dad and son

5. Child Support:  In Arizona, child support is calculated pursuant to the Arizona Child Support Guidelines.  The guidelines provide the amount of support based upon the respective incomes of the parties.  The guidelines, however, do not compute additional support for combined parental incomes of over $20,000 per month (i.e. your child support is essentially capped once it is calculated at any combined monthly income of the parents at $20,000).  But for physicians it is not uncommon for incomes to be in excess of this per month, and by extension it is not uncommon for children to be accustomed to life styles that require higher than normally calculated child support.  Child support orders may deviate from guideline amounts upon showing of good cause, but the necessity of a deviation can be difficult to discern.

6.  Time and Disclosures:  Often, physicians are not used to having to fully disclose all information regarding their finances to attorneys.  They are also very busy with their practices and may even have schedules that are incompatible with normal working hours.  This makes obtaining information that is required to be disclosed more complicated than usual.  On top of this, perhaps the only exposure physicians have to attorneys before entering into a divorce proceeding is in malpractice suits.  Consequently, it is not uncommon for physicians to be too busy/skeptical/jaded when asked to provide years’ worth of financial records.  Despite this, the best policy is to be forthcoming with all required disclosures.

Physician dissolution cases require finesse and, above all else, trust between the parties and their attorneys. Ideally, a skilled attorney can navigate the treacherous waters of divorce without capsizing the family, the medical practice, or the parties involved, but the best results can only occur when each participant acts in good faith.

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Children Saved from a Hot Car

It’s scary to think that anyone would leave their children locked in a car during the summer months. Recently, a Texas mother did just that. She went to get her hair cut at a salon and left her children in the car.

Shoppers at the center heard children crying and quickly found the two children locked in the car. What would you do?

Parking lotAfter hearing the cries of the children, a few people passing by knew they had to do something. Thinking they had little time to spare, they busted the window of the car and soon had the children out in fresh air. The mother came out to see what the commotion was about and realized what was happening. She begged the crowd not to call police and no one had. Hopefully, this was a lesson learned for the Texas mother and she will not leave her kids in the car again.

This could have been a very tragic story. Things like this happen all too often around the country. We have heard numerous stories this summer of children being left in cars. Recently, Shanesha Taylor left her children in a car while she went in for a job interview in Scottsdale, Arizona. Luckily it was not during our hottest summer months in which temperatures are known to reach over 110°, but Ms. Taylor was charged with felony child abuse. Leaving a child in a locked car in the summer is a serious offense and very dangerous to children, especially here in Arizona. It is important to remember not to leave your children in the car even for a “quick” errand. Take the extra three minutes to unbuckle them and bring them in with you.

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Parenting Disaster

The tables were sadly turned on a well-meaning former Pennsylvania prosecutor and his wife when they were charged with child abuse. The couple, Douglas and Kristen Barbour, thought they were doing the right thing in adopting two children from Ethiopia, but soon learned they were not equipped to parent these children with special needs.

The Barbours adopted a 6-year-old boy and an 18-month-old girl in March of 2012. They believed if they raised the children as they had raised their two biological children, they would enjoy the same great results. Unfortunately, the children did not adjust as well as the parents had hoped and the Barbours soon recognized they needed help. They sought the advice of an expert in foreign adoptions but refused to follow his recommendations to be more flexible with their parenting style. They wanted to parent the way they saw fit.

Small GirlThe Barbours made sure to bring the children to the doctors when the children were ill and tried their best to handle the children’s behavioral issues. However, it was soon clear the parents could not meet the children’s needs and the children suffered as a result. Although the boy was six, he went to the bathroom in his pants. The parents attempted to discipline him by forcing him to eat in the bathroom or stand alone in the dark. The girl had multiple head fractures – although the parents allege it was because she was clumsy, the doctors who examined her were doubtful of that conclusion. As a result, the boy was malnourished and ended up losing 10 pounds in the Barbours’ custody and the girl was healing from multiple fractures.

Similar situations have happened in Phoenix, Arizona and Birmingham, Alabama in recent years, where excessive punishment led to criminal charges that made national news.  Arguably, many of these parents did not intend to hurt their children. In fact, several sought help from experts, but in the end were patently unsuccessful, usually because they failed to follow the experts’ advice. Notwithstanding various safeguards that exists to protect children, the harm that parents can inflict is often the worst of all.

Click here for more on this story.

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Implications of Protective Orders

Orders of Protection are not to be taken lightly. There are many ways an Order of Protection can affect your life.

In Arizona, Orders of Protection are governed by the Arizona Rules of Protective Order Procedures. An Order of Protection is sought when someone feels they are in danger of being physically harmed or have been physically harmed by another person. The other person must have had some type of relationship with the person they are seeking the order against. There are many relationships the parties could share or have shared in the past giving rise to a need for an Order. These relationships could include former lovers, relationship through marriage or blood, residing together, or having a child in common.

ConfrontationIn order to get an Order of Protection, the Plaintiff (requesting party) needs to go to Court and file a Petition for the Order of Protection.  The Petition could be filed with a municipal or justice court in places like Mesa, Glendale, or Scottsdale, or in the Superior Court in Phoenix.  The Court will consider the Petition for Order of Protection and can grant the Order based solely upon what the Plaintiff says.

Once the Order is granted, it is served on the defendant (other party).  At that point, the Defendant has the right to contest the Order of Protection.  If a hearing is requested, both parties need to appear in the Court and the judge will decide whether the Order should be kept in place, modified, or dismissed. This is a crucial point in the case. If an Order is not defended or contested properly, it could have lasting implications on you.

What could that mean for you if the Order is issued against you, or upheld against you after a hearing?

Orders of Protection are likely to show up on background checks run by potential employers, preventing you from obtaining certain jobs. An Order of Protection could also get you terminated from your current position or reassigned to other duties within a company or government office. Orders of Protection prevent you from possessing a firearm and, if you already own one, force you to relinquish it. The Court could also order the exclusive use of a common residence to the Plaintiff.

Gated Patio

The Order may also limit your ability to see or communicate with children, and that could also have an effect on any other pending family court cases.  Orders of Protection cannot list a child unless the judicial officer believes that “physical harm has resulted or may result to the child, or the alleged acts of domestic violence involved the child,” but the weight that the judge gives to allegations in protective order hearings is often greater than what would be given in other types of cases.

Under emergency circumstances, a judge may err on the side of caution and enter a child on a temporary basis even with a minimal allegation of danger. This is a small consolation because in the end an Order of Protection could affect permanent parenting time and legal decision-making.

Although many parties proceed without representation in Order of Protection hearings, the severe consequences of having an Order entered against you may justify retaining an attorney.  Even though the Order is temporary, its impact can last a lifetime.

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What Happens to Children When Parents Split?

There is a growing trend in divorce cases to award equal parenting time to both parents. Several states, including Arizona, have joined this trend and modified their relevant statutes.  Parents in Phoenix, Arizona have seen this trend through the amendments enacted in the beginning of 2013. Specifically, the language in the statutes changed from “custody” to “legal decision-making,” signifying a change in the collective attitude toward parental rights and responsibilities.

Dad with kids

From a historical standpoint, the trend in parenting time arrangements has dramatically changed over the years. In the beginning, women were free to leave men, but the children stayed with their father – as the children were considered more akin to property. The trend slowly moved toward a court system that favored mothers as the prevailing belief emerged that mothers provided a more nurturing environment, especially for younger children (also called the tender years doctrine).

All that may be history now. Though there are exceptions (which may include domestic violence, substance abuse, mental health issues, and other safety concerns), courts have recognized the need for both parents to have a loving and healthy relationship with their children.

This also means that Arizona now sets out to “maximize” each parent’s parenting time with the child(ren). To further illustrate the importance of this trend and policy, Arizona legislature has addressed the issue in its statutes. Specifically, the best interest statute, ARS § 25-403(A)(6), states that the court must consider “which parent is more likely to allow the child frequent, meaningful, and continuing contact with the other parent.”

Mother with childIf the court finds that a parent is constantly trying to play “keep away” with the children or frequently puts the other parent down in front of the children, it will likely have a negative impact to that parent’s time with the children. Courts are reluctant to tear children away from either parent and courts want each parent to foster a healthy relationship with their children.

An important point to consider during a divorce or custody proceeding is that it’s more likely than ever that you will be sharing parenting time. Maintaining a functioning, good-faith relationship with the other parent is critical to ensure that you do not lose time with your children.

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