The Top 5 Things to Consider Before Consulting with a Divorce Attorney

None of us get married thinking that one day we will want a divorce. Most people begin marriages thinking that they will be with their spouse forever. Then, life happens. Some couples overcome difficult obstacles together, while others realize they are not compatible with their partner. After they reach a realization that the marriage is broken, they may begin to ponder about divorce. People divorce for many reasons, and a marriage that ends with a divorce is not necessarily a failed marriage. Navigating through a divorce without legal representation can be difficult—that is why there are divorce attorneys. Before consulting with a divorce attorney, there are five major questions to ask yourself:

pondering

  1. Am I emotionally ready for a divorce?

In Arizona, a divorce is called a “dissolution”—which legally ends a marriage. Putting legality aside, a divorce is the breaking apart of a partnership. Before a person decides to seek an attorney’s legal guidance, the person must be emotionally ready to end their marriage. A common question is: “How do you know when you’re ready to end things?” Truthfully, the answer is different for every person. You may be the party being served with divorce papers and not prepared to end the marriage. Arizona does not require both parties to consent to a divorce. Once one party feels a divorce is necessary, the process to dissolve the marriage can commence. Even if you are not ready to proceed with a divorce, emotions must be set aside to reach the best outcome for all parties involved. A divorce should be treated as a business transaction with your attorney and a social transaction with a counselor—who will be better equipped to help you through the lifestyle adjustments.

  1. Am I financially ready for a divorce?

If you are seriously thinking about divorce, do not let the financial aspect keep you from proceeding with the case. You should learn what assets and/or debts you and your spouse have acquired, and what support may need to be paid or requested by putting together a budget. Some people are afraid of being “frozen out” during divorce proceedings. In Arizona, the system is set up in a way for the lower-earning spouse to have the same protection as the high-earning spouse. Before a final judgment is made, the judge can issue temporary orders that require the higher-earning spouse to pay spousal maintenance during the case. Spousal maintenance payments can even continue after the proceedings end if one of the party requires financial assistance. A judge can also order one party to pay the other spouse’s attorney fees, either because one party is in a stronger financial position or because one of the parties acts unreasonably during the dissolution process.  Note, however, that a good attorney will never promise a fees award or spousal maintenance because these are some of the most unsettled and unpredictable areas of family law.

  1. Have I researched attorneys?

It is important to research attorneys before deciding to have a consultation. Some helpful
websites are avvo.com and azbar.org. Take an attorney’s experience, client testimonials, paper and fees into account. Sometimes it is necessary to go to multiple consultations to find the right attorney. Remember that attorneys have different styles, and it is crucial to choose an attorney with whom you are comfortable.

  1. What should I take to my consultation?

Depending on your situation, it is important to take relevant documents to your consultation. If you have already began filling out paperwork using the “Self-service
center” from the Maricopa Superior Court website, make sure to take any and all forms. Also take a pen and paper to take notes during the meeting to reference later. You should
remember to take your driver’s license and the consultation fee (if the attorney requires one). Have questions for your attorney written down so you do not waste time trying to remember them. Most of all, bring a good attitude.  A good attorney will be honest and point out both the strengths and weaknesses of your position and may offer some ‘tough love’ advice, if necessary.

  1. Do I have specific questions ready to ask the attorney?

Initial client consultations are usually less than an hour. That means you have a very short amount of time to explain your situation to an attorney, determine whether the attorney’s personality and advice aligns with your goals, and determine whether the attorney can help you with your legal issues. In that compressed time frame, you must be concise, goal-oriented, and open to hearing both good and bad news. Having specific questions already prepared before an attorney consultation will allow you to get the most out of your brief time, but be prepared to deviate from your script if the attorney points out issues you may not have considered.

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Grandparents Should Not Be Afraid of the Legal System

According to the U.S. Census Bureau, approximately 1 in 3 grandparent-maintained households did not have a biological parent present in the household. In Arizona in 2000, households that had grandparents living with grandchildren was higher than the national average. It is clear to see that grandparents play an important role in the raising of their grandchildren, not only in Arizona, but across the nation. What happens when grandparents are put in a situation in which they must raise the children or simply want to visit their grandchildren? Grandparents must know that they have rights and should not be afraid of the legal system.

grandparent

Legal: The following topics can be discussed at a consultation with an attorney. They are crucial to understand and answer before you begin accruing substantial fees because the statutes only allow grandparents to assert rights in limited circumstances.

 

 

In Loco Parentis

  • A.R.S. §25-409 (“Custody by a Non-Parent”) states that “a child custody proceeding may also be commenced in the superior court by a person other than a legal parent by filing a verified petition, or by a petition supported by an affidavit, in the county in which the child is permanently resident or is found.” The court may deny a petition unless the pleadings establish various truths. One of the truths is that “the person filing the petition stands in loco parentis to the child.” In loco parentis means “in place of a parent” and is someone who has acted as a parent to the child at some point in time when the child’s actual parents were absent.

Dependency

  • Grandparents can file for a dependency petition if they feel their relationship with the child meets the statutory requirements. A.R.S. §8-841 states that any interested party can file to begin dependency hearings in juvenile court. A “dependent” child is one who does not have a parent or guardian willing to exercise or are not capable of exercising care and control of the child.

Termination

  • A.R.S. §8-537 states that there are 10 grounds for the termination of parental rights. A packet can be found on the Maricopa Superior Court website to file a petition for termination (or severance) of parental rights. In Troxel v. Granville, the Court held it is against the fundamental right of parents to rear their children for any person to petition for a court-ordered right to see a child over the custodial parents’ objection.

grandparent2

Other considerations:

1.Whether the grandparent has the financial capacity to endure obtaining rights.

  • Obtaining court orders over a child often requires filing a law suit. With any legal situation, money is going to be a factor.

2.Whether the grandparent has the time to complete the legal process.

  • Law suits take time. There are statutory time requirements for many legal processes. Dealing with hearings, legal documents, and pushing papers through the legal system is not usually a swift process. Grandparents must be patient and understand that obtaining orders that protect the child will not happen overnight.

3. Whether the grandparent is prepared for the outcome—meaning the process could bring a family closer or create animosity.

  • Anytime family is involved, emotions are heavy. Family law directly affects people’s lives and relationships. You have to understand that obtaining court orders can have a positive or negative effect on the family situation and grandparents have to be prepared for either outcome. Grandparents must ask themselves if obtaining court orders is in the best interest of the child or children. If the answer is yes, know that the process is not necessarily going to be an easy one.
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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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