Spousal Maintenance in Arizona

One of the most complex and contested issues in a dissolution action is spousal maintenance.  Spousal maintenance, previously known as ‘alimony,’ is a court-ordered award of payments from the spouse with higher income to the other spouse, often for a period of months or years.

In Arizona, spousal maintenance awards are governed by statute, codified at A.R.S. § 25-319.  Spousal maintenance is a “two hurdle” question.  First, you have to qualify under subsection A.R.S. §25-319(A), and only if you qualify, do you look at the amount and duration of the maintenance award outlined in subsection A.R.S. § 25-391(B).

The court’s decision to award maintenance is related to the following four factors: (1) whether one spouse lacks sufficient property to provide for their needs, (2) whether one spouse is unable to be self-sufficient either through employment or because they are the custodian of a dependent child and should not be required to work, (3) one spouse has contributed (often through sacrificing their own prospects) to the education of the other, and (4) whether the marriage was of long duration or one spouse is of an age which precludes their ability to become self-sufficient.

A finding of one or all of these factors could suffice to award spousal maintenance, and the judge’s discretion is broad.  Many of the statute’s provisions, such as whether a spouse can be “self-sufficient” or is of an age which precludes their ability to gain “adequate” employment, rely heavily on the judge’s interpretation of the facts presented by the parties.  The judge must also consider what he or she knows about the world in order to determine the likelihood of self-sufficiency, such as whether a particular skill set is marketable, whether a particular field of employment is stable, etc.  Needless to say, the threshold matter of whether maintenance should be awarded largely depends on the type and strength of evidence presented by the parties to convince the judge to rule in their favor.

Once the judge determines that some maintenance is appropriate, they will turn to section B of the statute, which outlines some (but not all) of the factors used to set the duration and amount of the award.  The statute’s list of factors includes some of the same provisions as in section A, like age and duration of marriage, but also considers future earning capacity and expenses (including educational expenses for mutual children), the roles that the parties assumed during the marriage and how those roles affected their ability to enter the labor market, and even foul play and damages caused to one spouse by the other.

Again, these determinations are highly fact-sensitive and give the judge a great deal of flexibility in deciding the proper duration and amount of the spousal maintenance award.  Even the factors that the judge considers are not limited to the list in the statute: judges can consider any relevant (a legal term of art) information so long as they do not neglect applicable factors listed in the statute.

Even after the spousal maintenance award is ordered, a change in the circumstances could result in modification under A.R.S. § 25-327.  This statute requires the party moving for modification to show that their circumstances have changed in a substantial and continuing way which makes the previous maintenance order no longer proper.  The statute specifically mentions the addition or termination of health insurance coverage as a potentially “modifiable” change in circumstances, but virtually any substantial and ongoing circumstance with an impact on the parties’ finances could be cause for modification.

If it sounds as though all of these provisions lack clear legal standards, then you probably read them correctly: the body of law surrounding spousal maintenance is constantly changing and very discretionary.  An effective attorney in this area is one who is creative and who understands the nuances of persuasion, as most spousal maintenance actions depend entirely on convincing the judge to adopt one party’s interpretation of a given set of facts.  The judge is not required to consider evidence which is not properly presented, and it can be difficult to modify a spousal maintenance order once it is made final.  Because an adverse spousal maintenance holding could result in thousands of dollars being improperly awarded, there is tremendous incentive to consult with an attorney – attempting to argue for or against a spousal maintenance award without the help of a qualified lawyer could have a lifetime impact on your income.

ASU’s New Beginnings Program Offers Help to Divorced Parents

Separation or divorce is a trying experience for any family, but the greatest impact is often felt in families with children.  Young children are especially vulnerable during times of change – a divorce can leave a child feeling frightened, neglected, and even worthy of blame for their parents’ dispute.  Children who witness a divorce may vent their emotions in unexpected – even dangerous – ways if they are unable to cope with the situation.  In some (thankfully uncommon) cases, the trauma of divorcing parents can cause lifelong problems for children, making them more likely to engage in high-risk behaviors and less able to handle emotional challenges.

For parents, knowing how to talk to their children about their divorce – or whether to talk to their children about it at all – is no small concern.  There is no simple instruction book for parenting your children through tough times, and it may feel as though there is no way to help them.  If your child starts acting out or doing poorly in school, you may not realize that there are ways for you to help them.

Over the past few years, an Arizona State University applied research project has attempted to change the way parents think about divorce.  The program, dubbed “New Beginnings,” is an educational course for parents who are separating or divorcing.  The program focuses on giving parents the information and tools they need to talk to their children through the process of the divorce.

So far, the results have been tremendous, garnering national attention for the substantial long-term improvements to children’s overall well-being as a result of more effective parenting.  Research (and common sense) demonstrates that more parental involvement helps children adjust after a separation or divorce, and parents who employ more effective parenting strategies see even better results.  New Beginnings is designed to educate parents about these strategies and to prepare them for their children’s reactions to the separation as it moves forward.

New Beginnings is offered to mothers and fathers in Coconino, Maricopa, Pima, and Yuma Counties.  The program’s administrators encourage attorneys and other professionals to inform separating or divorcing parents about New Beginnings.  As interest grows, it seems likely that the program will expand, as well, meaning that parents in cities around Arizona, from the Phoenix-Mesa-Glendale Metropolitan Area to Tucson, Flagstaff, Show Low, Lake Havasu City, and beyond.

The New Beginnings program is offered free of charge to qualified applicants, as it is funded in part by grants from the National Institutes of Health.  Parents are paid for participating in three phone interviews during the process, which allows researchers to gather information about the effectiveness of the strategies they teach so they can continue to improve the curriculum.  Free child care is even offered at the small-group workshops, making the program accessible to parents who may not be able to afford similar assistance elsewhere.

If you are thinking about separation or divorce, there is a plethora of issues to consider.  In the circuses of asset division, spousal maintenance, child support, parenting time, and custody, it is easy to get lost in the numbers and legal disputes and forget about the human impact that a dissolution action can have on your family.  Hire an attorney who can ease the burden of handling the legal issues, then take some time to guide your children through the process.  Your involvement is the best medicine for anything which might negatively impact your kids.

Domestic Violence and Custody

On December 1, 2012, then-Kansas City Chiefs linebacker Jovan Belcher murdered his girlfriend, 22-year-old Kasandra Perkins, in the couple’s home, then drove to the team’s practice facility and killed himself.  Now, Belcher’s mother and Perkins’ family are embroiled in a custody dispute over the couple’s four-month-old daughter, Zoey.

Sadly, domestic violence is growing more common – perpetrators of domestic violence cause more than 100 deaths per year just in Arizona, 60-80% of which involve firearms.  According to an Arizona Coalition Against Domestic Violence (AZCADV) press release issued just after the Kansas City murder-suicide, domestic violence is “a pattern of behavior used by one partner to exert power and control over the other.”  The AZCADV correctly describes domestic violence as taking many forms, including physical, emotional, sexual, or financial abuse.  Domestic violence plays a significant role in family courts – results in dissolution actions and custody hearings can change dramatically if one of the parties is an abuser.

In Arizona, A.R.S. § 25-403.03 establishes a rebuttable presumption that joint legal decision-making (custody) of a child cannot be awarded if there is a history of significant domestic violence perpetrated by one of the parties.  Overcoming this presumption against joint legal decision making when a parent has displayed a history of abuse can be a tall order.

As far as Zoey’s placement is concerned, Belcher’s history of domestic violence does not play such a direct role in any custody determination.  For young children who have experienced domestic violence or whose parents were killed, psychologists typically recommend stability.  Zoey had already spent significant time with Belcher’s mother before the murder, so leaving the child in her custody would make sense.

Perkins’ family recently took Zoey to Texas to attend her mother’s funeral, however, and several news outlets report that they have since refused to return her to Belcher’s mother’s care as they prepare to sue for custody.

Jurisdiction in Custody Hearings

When custody of a child comes under issue, whether in the context of a divorce, allegations of abuse, or some other dispute, determining which court should hear the matter is not always simple. This is complicated when the child’s parents live in different cities or states.

Obviously, some of the more difficult cases arise when parents live in different countries – if one parent is deployed to a military base in Europe, for example.  The Hague Convention deals with international abductions and custody matters, but similar difficulties can arise between states within the United States.  Thankfully the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) helps to answer some of these questions.

The UCCJEA is a uniform act which has been adopted by Arizona, and was enacted “[…] to avoid jurisdictional competition and conflict, promote cooperation between states, discourage the use of the interstate system to continue custody controversies, deter abductions, avoid relitigation in different states, and facilitate enforcement of custody decrees between states.”  Welch-Doden v. Roberts, 202 Ariz. 201, 206 (App. 2002).  In Arizona, the UCCJEA’s principles are embodied in statute.

Under Arizona statutes, there are four ways to obtain initial custody jurisdiction.  If there is a “home state” in which the child lived within six months before the commencement of the proceeding, then that state likely becomes the proper state to hear the case and jurisdiction may not be too complicated.  A.R.S. § 25-1031(A)(1).  Specifically, the “home state” of a child – defined in A.R.S. §25-1002(7) – is the state where the child lived for at least six consecutive months immediately before the commencement of the proceeding, including temporary trips outside of the state (for vacations and things of that nature).

However, as discussed in Welch-Doden, the definition of “home state” in A.R.S. §25-1002(7) conflicts with the adopted UCCJEA provisions.  In Welch-Doden, a mother filed a dissolution of marriage action in Arizona.  She had been in Arizona with the parties’ minor child for four months prior to filing the divorce action.  Prior to this time, she and the minor child lived for six months in Oklahoma (where the father lived), three months prior to that mother and the minor child lived in Arizona, and seven months prior to that mother and the minor child lived in Oklahoma – a veritable spider web of residency and a jurisdictional nightmare.

Pursuant to the strict definition of A.R.S. §25-1002(7), the mother argued that there was no “home state” because the minor child had not lived in any State for six consecutive months immediately prior to the filing for divorce.  The court adopted the father’s argument, however, that A.R.S. § 25-1031(A)(1) expanded the definition of “home state” to mean that if there was any State that could have been considered the “home state” within the six months prior to filing the custody action, that State would have initial custody jurisdiction.

The Welch-Doden court ultimately decided that Oklahoma held initial child custody jurisdiction because it had been the child’s home state within the six months before the petition was filed (but not the home state for the six- month period immediately prior to the filing).

If Welch-Doden teaches anything, it is that UCCJEA jurisdiction can be immensely complex – and the complexities don’t end with the issues above.  If you recently moved to (or from) Arizona, there may be jurisdictional conflicts which must be resolved before any further custody determinations take place.

Sex Offender Registration and Real Estate

In a November decision, the Arizona Court of Appeals held that sellers and agents have no duty to report the presence of nearby sex offenders when offering a home for sale – a decision with meaning unrelated to real estate.

The case, Lerner v. BMD Realty, Inc., began when the Lerners purchased a Scottsdale home and later learned that a registered sex offender lived next door.  The Lerners claimed that the previous owners told them that they wanted to live closer to friends when they were actually selling the home because of the close proximity of a registered sex offender.

Under A.R.S. § 32-2156, no legal action can be taken against a seller for failure to disclose whether a death or felony has occurred in the home, whether anyone with a syndrome or disease not known to be communicable by common occupancy of real estate lived in the home, or whether the home is located in the vicinity of a sex offender.

The knee-jerk reaction to § 32-2156 may be surprise or outrage, particularly because the term “sex offender” conjures media-propagated images of morally bankrupt, sub-human individuals prowling the streets.  Why would the legislature immunize sellers for failing to disclose information which may be important to buyers?

The reasons, of course, are numerous.  Allowing lawsuits for failure to disclose whether a death or felony occurred in the home would force sellers to investigate events which may have happened years – or even decades – prior to their ownership.  Requiring sellers to disclose whether anyone with HIV or other non-communicable (by real estate) illnesses would invade the privacy of the home’s past residents and could result in a canceled sale for dubious reasons.

As for the provision for sex offenders in the vicinity, the legislature clearly wished to place the responsibility of finding that information on the buyer.  The registry is readily available to everyone, and buyers can choose how a positive result on the registry website affects their purchase decision.  Requiring sellers to disclose that information would likely chill real estate sales and adversely affect home prices, at minimum.

Because “sex offenders” have been so thoroughly and collectively vilified, requiring sellers to disclose their proximity would probably result in many canceled sales without any further investigation.  If lawsuits against sellers were permitted for failure to disclose, courts would be forced into the difficult – if not impossible – task of tracking sex offenders’ locations at the time of sale to decide whether a seller discharged their obligation.

Perhaps more importantly, registered sex offender status does not automatically equate an individual to Law and Order: Special Victims Unit levels of dangerous criminal behavior.  The Arizona Sex Offender Information website contains a list of around 14,500 people who are legally required to register their presence in the state due to past convictions.  Offenses requiring registration include the relatively minor offense of indecent exposure all the way up to the major crimes of sexual assault or sex trafficking.  Even non-sexual crimes can result in mandatory registration if the judge determines that the offense was “sexually motivated.”

Although sex offender registration requirements are designed to inform the public and to promote safety, people who made mistakes, were convicted, served their sentence, and have remodeled themselves as law-abiding citizens have earned the right to go on living.  Requiring sellers to disclose nearby sex offenders could, in the worst-case scenario, result in vandalism, violence, or retaliation, to say nothing of the difficulty of trying to live a normal life amidst the paranoia of nosy neighbors.

Anyone who wishes to buy a home should be as well-informed about their purchase as possible, but the legislature understood the need to balance the obligations of the seller with the responsibilities of the buyer.  According to the Court of Appeals of Arizona, the Lerners should have used the 14-day inspection period to investigate the details of their purchase, including whether any registered sex offenders lived nearby – a simple search of the Arizona Sex Offender Information website, located at http://www.azdps.gov/Services/Sex_Offender/, would likely have revealed the pertinent information.

This holding is consistent with the so-called “buyer beware” doctrine which permeates commercial and real estate transactions in the U.S.  Because sex offender registries are readily available to everyone, it is up to the buyer to check them before buying a home.

All is not lost for the Lerners, however, because the court left open the possibility that they could recover against the sellers for fraud if they can prove that they lied about their reasons for moving.

In any case, the Lerner v. BMD Realty, Inc. decision should give pause to anyone involved in a real estate transaction.  If you are buying or selling a home, it is important to understand your duties and obligations and how they might affect negotiations.

If you are selling a home, it may be advantageous to disclose certain facts even if you are not legally obligated to do so – if your well-liked 19-year-old neighbor is a registered sex offender because he had consensual sex with his 17-year-old girlfriend, explaining the situation to a prospective buyer will probably result in a more favorable outcome than attempting to avoid the subject.

If you are buying, on the other hand, then understanding the registry and what a positive search result means could prevent you from placing your family in danger.  Conversely, carefully examining the registry results and making an informed decision might prevent you from rejecting your dream home because of unreasonable fears.

Dueling Appraisals in a Divorce

The process of real estate valuation in the divorce setting takes on two common forms: (1) the parties agree to hire a neutral appraiser whose evaluation of the property becomes the agreed upon figure, or (2) the parties hire their own appraisers and dispute the details of two dueling appraisals.

Common pitfalls associated with the second scenario are easy to imagine: each party disputes the opposing party’s appraisal and a judge must determine which is more accurate.  Sometimes, the judge declines to use either appraisal and orders a neutral appraisal to settle the dispute. Even under the first scenario there can be dispute if the valuation does not come in just the way one side wanted.

Many appraisers charge greater fees when appraising for the purpose of a divorce – the possibility of litigation and the inherent complexity of determining the progression of real estate value over the course of a marriage makes the process much more arduous than a standard appraisal.  Recent upgrades – remodeled rooms, furniture, or appliances – do not often return their retail value when the home is sold, and the parties may dispute over who should keep them if they are removed.

With the real estate market rebounding, many divorcees are finding that their marital residence or investment property is “worth the fight.”

For more about the tribulations of real estate appraisals during a divorce, read the Wall Street Journal’s recent article, entitled “Appraisers in Splitsville,” at the following website: http://online.wsj.com/article/SB10001424127887324851704578133200609815808.html

Sperm Donor Expected to Pay Child Support

Reuters reports that the State of Kansas has filed a petition to declare a sperm donor the legal father of his genetic child in an attempt to make him pay child support.

The donor, William Marotta, met privately with a lesbian couple seeking to have a child, rather than arranging the donation through a licensed physician as required by Kansas law.  The couple found Marotta on Craigslist and presumably arranged the donation privately to avoid unnecessary expenses.  The couple sought to receive state benefits for the child’s medical care, prompting a mandatory identification of the child’s genetic parents – namely Marotta.

Marotta’s response to the state’s petition centers around a contract signed by the parties, absolving him of legal parental status and any future financial obligations arising as a result of the sperm donation.  Marotta’s lawyers cite a 2007 Kansas Supreme Court case in which a sperm donor was denied parental rights.  In that case, the parties had no formal agreement stating whether the donor maintained legal parent status or any potential obligations.

In essence, Marotta claims that the state should not be permitted to assign parental rights in the present case, where hard financial times have left the couple unable to fully provide for the child’s medical expenses, unless the state is willing to grant parental rights to all sperm donors who seek them out.

The case has drawn national attention due to its bearing on parental rights both of sperm and egg donors, as well as those of same-sex and infertile couples who hope to conceive a child.  An unfavorable ruling for Marotta would set a precedent which could be harmful to anyone seeking to conceive by artificial insemination.

In Arizona, A.R.S. § 25-501 provides that a child born as a result of artificial insemination is entitled to support from the child’s mother and the mother’s spouse, but only if the spouse is also the child’s biological father or signed a written agreement to take responsibility for the child before or after the insemination occurred.

It is unclear whether the state could seek support from a sperm donor in the same way as Kansas, although several Arizona Supreme Court decisions declare a universal duty owed by parents to support their biological or adopted children.  With many leading fertility specialists practicing in Phoenix, Chandler, Scottsdale, and around the state, a case like the one in Kansas may be inevitable as more individuals turn to artificial insemination as a means to have a child.

In any surrogacy situation, sperm or egg donation, adoption, or custody matter, it is important to speak to an attorney and to lay the necessary legal groundwork in advance of taking any action.  Smart legal advocacy and planning are critical, especially when the impact involves children.