State Bar of Arizona Certified Family Law Specialist
(602) 274-1099

Posts by djs

Holiday Parenting Time

Posted by on Nov 27, 2017 in Blog

At this time of year, holiday parenting time becomes a very important issue for divorcing couples. In Arizona, when there are children involved in a divorce case, the court requires that the parents have a written parenting plan. The parenting plan must satisfy certain statutory requirements and one of those requirements is a holiday schedule. The law governing parenting plans is A.R.S. §25-403.02 (C) and it reads as follows: C. Parenting plans shall include at least the following: 1. A designation of the legal decision-making as joint or sole as defined in section 25-401. 2. Each parent’s rights and responsibilities for the personal care of the child and for decisions in areas such as education, health care                  and religious training. 3. A practical schedule of parenting time for the child, including holidays and school vacations. 4. A procedure for the exchanges of the child, including location and responsibility for transportation. 5. A procedure by which proposed changes, relocation of where a child resides with either parent pursuant to section 25-408,                              disputes and alleged breaches may be mediated or resolved, which may include the use of conciliation services or private                                  counseling. 6. A procedure for periodic review of the plan’s terms by the parents. 7. A procedure for communicating with each other about the child, including methods and frequency. 8. A statement that each party has read, understands and will abide by the notification requirements of section 25-403.05,                                    subsection B. Parents can agree on any holiday schedule that works for them. Generally parents agree to divide holiday time in one of three ways: 1) each take a certain holiday every year; 2) share the holiday each year by dividing the time evenly on that day; or 3) alternate each parent having the holiday every other year. The parents can agree on whatever schedule works best for their family traditions. Daniel J. Siegel is a Certified Specialist in Family Law by the State Bar of Arizona. For help with any family law related matter, call Daniel J. Siegel, P.C. at 602-274-1099. This article is for informational purposes only. The information contained herein is not legal advice, nor is it intended to be. Readers should not act upon information contained herein without first seeking the advice of a qualified attorney. Please contact Daniel J. Siegel, P.C. with any questions, 602-274-1099 Follow me here:Thanks for following me! Please check back for new...

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MARITAL WASTE

Posted by on Nov 8, 2017 in Blog

What is marital waste? Marital waste is essentially disposing of a marital asset to the detriment of the marital community. In Arizona, the statute governing marital waste is A.R.S. 25-318(C) stating as follows: C. This section does not prevent the court from considering all actual damages and judgments from conduct that resulted in criminal conviction of either spouse in which the other spouse or a child was the victim or excessive or abnormal expenditures, destruction, concealment or fraudulent disposition of community, joint tenancy and other property held in common. The key language in the law as it relates to waste is “excessive or abnormal expenditures, destruction, concealment or fraudulent disposition of community property”. The trial court is specifically authorized to consider these things when apportioning community property. As an example, if one spouse withdraws money from a bank account or retirement account and the other spouse shows evidence of the withdrawal(s). Then the spouse that withdrew the money has the burden to prove what it was used for or where it went. If they are unable to prove that it was used for the benefit of the marital community, the other spouse (non-withdrawing) is entitled to be reimbursed for their half of the money that was taken. The Arizona Court of Appeals established this principal back in 1998 in the case of Gutierrez v. Gutierrez, stating in part, as follows: “The spouse making the withdrawals should bear the burden of showing that the money was spent to benefit the community. See Troutman v. Valley Nat’l Bank of Arizona, 170 Ariz. 513, 517, 826 P.2d 810, 814 (App.1992) (“The party who asserts a fact has the burden to establish that fact.”). We hold that the spouse alleging abnormal or excessive expenditures by the other spouse has the burden of making a prima facie showing of waste. It is then the burden of the spending spouse to go forward with evidence to rebut the showing of waste because all of the evidence relative to the expenditures is generally within the knowledge, possession, and control of the spending spouse.” Gutierrez v. Gutierrez 193 Ariz. 343, 972 P.2d 676 (Ariz. App. Div. 1, 1998). Waste is not limited to withdrawing money from an account, but can also apply to, among other things, selling community assets, gambling, drug use or spending money on an extramarital affair. Daniel J. Siegel is a Certified Specialist in Family Law by the State Bar of Arizona. For help with any family law related matter, call Daniel J. Siegel, P.C. at 602-274-1099. This article is for informational purposes only. The information contained herein is not legal advice, nor is it intended to be. Readers should not act upon information contained herein without first seeking the advice of a qualified attorney. Please contact Daniel J. Siegel, P.C. with any questions, 602-274-1099 Follow me here:Thanks for following me! Please check back for new...

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Dividing Retirement Accounts Upon Divorce

Posted by on Oct 26, 2017 in Blog

Other than real estate, a retirement account is usually one of the largest assets people own.  In Arizona, if the retirement account was accumulated during the marriage, in the event of a divorce, it will be considered a marital community asset subject to equitable division by the court.  Once it is determined how much of the retirement account the other spouse is entitled to receive, it needs to be divided. The task of dividing the retirement account falls to the retirement account’s plan administrator.  In order for the plan administrator to distribute the appropriate amount of money to the other spouse, they will need a court order called a Qualified Domestic Relations Order (“QDRO”).   A QDRO is an order from the divorce court to the plan administrator telling them how much of the retirement account to give to the other spouse. The division of marital property in a divorce is governed by state law, but retirement plans are governed by Federal laws known as ERISA (Employees Retirement Income Security Act) and REA (Retirement Equity Act). The division of retirement accounts must therefore comply with Federal law.   In simple terms what this means is that a State Court Judge in a divorce cannot order a plan administrator to do anything not allowed by the plan.  There is actually a provision in ERISA that states: “The order must not require a plan to provide an alternate payee or participant with any type or form of benefit, or any option, not otherwise provided under the plan.” The QDRO must comply with the plan’s specific provisions. There are some retirement plans not governed by ERISA and REA.  Some examples are: The Military Retirement System, Civil Service Retirement System, the Federal Employees Retirement System and the Railroad Retirement System. It is obviously important to understand the type of retirement plan you are dealing with and know the laws that govern it. Dividing retirement accounts can be a complicated and time consuming process. It is crucial to make sure the QDRO is done properly and in compliance with the plan’s requirements.  Hiring a qualified person to deal with the plan administrator and prepare the QDRO can make things a lot easier. Daniel J. Siegel is a Certified Specialist in Family Law by the State Bar of Arizona.  For help with any family law related matter, call Daniel J. Siegel, P.C. at 602-274-1099. This article is for informational purposes only. The information contained herein is not legal advice, nor is it intended to be.  Readers should not act upon information contained herein without first seeking the advice of a qualified attorney. Please contact Daniel J. Siegel, P.C. with any questions, 602-274-1099 Follow me here:Thanks for following me! Please check back for new...

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HOW IS INHERITANCE TREATED DURING A DIVORCE?

Posted by on Aug 29, 2017 in Blog

People going through a divorce often wonder if they have to share money or property they received from an inheritance. The answer is a qualified “no”. The reason it is “qualified” is because the inheritance must be kept separate from other marital assets. As an example, if you receive a sum of money, let’s say $10,000.00, from Grandpa Joe, that money, by definition is your sole and separate property. The definition of separate property is contained in A.R.S. §25-213(A) as follows: A spouse’s real and personal property that is owned by that spouse before marriage and that is acquired by that spouse during the marriage by gift, devise or descent, and the increase, rents, issues and profits of that property, is the separate property of that spouse. In our example, if you put that $10,000.00 in a bank account that contains salary, bonuses, commissions or other earnings earned during the marriage, there is a strong likelihood that the $10,000.00 has lost its character as sole and separate property. Once it is deposited with marital community money and commingled together, it becomes community property. So as long as you keep your inheritance separate, you can keep it as your sole and separate property in the event of a divorce.   Daniel J. Siegel is a Certified Specialist in Family Law by the State Bar of Arizona. For help with any family law related matter, call Daniel J. Siegel, P.C. at 602-274-1099.  This article is for informational purposes only. The information contained herein is not legal advice, nor is it intended to be. Readers should not act upon information contained herein without first seeking the advice of a qualified attorney. Please contact Daniel J. Siegel, P.C. with any questions, 602-274-1099. Follow me here:Thanks for following me! Please check back for new...

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Arizona Is A No Fault Divorce State

Posted by on Aug 2, 2017 in Divorce

Arizona is a no-fault divorce state. In Arizona, like most states, you do not need to prove anything to be granted a divorce. It is not necessary to prove abandonment, abuse, neglect or anything else to get divorced. If one spouse denies the marriage is irretrievably broken, the court will hold a hearing to consider that issue. As long as one of the spouses believes the marriage is irretrievably broken and testifies that there is no reasonable prospect of reconciliation, the Arizona Superior Court will grant the divorce. Follow me here:Thanks for following me! Please check back for new...

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