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MARITAL WASTE

Posted by on Nov 8, 2017 in Blog | Comments Off on MARITAL WASTE

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

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Dividing Retirement Accounts Upon Divorce

Posted by on Oct 26, 2017 in Blog | Comments Off on Dividing Retirement Accounts Upon Divorce

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

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HOW IS INHERITANCE TREATED DURING A DIVORCE?

Posted by on Aug 29, 2017 in Blog | Comments Off on HOW IS INHERITANCE TREATED DURING A DIVORCE?

Inheritance and Last Will And Testament, Arizona Divorce Lawyer-Dan SiegelPeople 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.

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Parenting Time: When Does A Child Get To Decide Where They Want To Live?

Posted by on Jan 13, 2017 in Blog | Comments Off on Parenting Time: When Does A Child Get To Decide Where They Want To Live?

Daniel J. Siegel, P.C., parenting time, child choosing between divorced parentsFor most couples going through a divorce or paternity case, the most important issue they face is determining a parenting time (formerly known as “custody”) schedule for their child or children. Who has the child when? Some parents want the child to be able to decide where they want to live. If the parents are unable to agree on a parenting plan, then that decision is ultimately decided by the judge.

In Arizona, parenting time is governed by A.R.S. §25-403(A). That law reads as follows:

A. The court shall determine legal decision-making and parenting time, either originally or on petition for modification, in accordance with the best interests of the child. The court shall consider all factors that are relevant to the child’s physical and emotional well-being, including:

1. The past, present and potential future relationship between the parent and the child.

2. The interaction and interrelationship of the child with the child’s parent or parents, the child’s siblings and any other person who may significantly affect the child’s best interest.

3. The child’s adjustment to home, school and community.

4. If the child is of suitable age and maturity, the wishes of the child as to legal decision-making and parenting time.

5. The mental and physical health of all individuals involved.

6. Which parent is more likely to allow the child frequent, meaningful and 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.

7. Whether one parent intentionally misled the court to cause an unnecessary delay, to increase the cost of litigation or to persuade the court to give a legal decision-making or a parenting time preference to that parent.

8. Whether there has been domestic violence or child abuse pursuant to section 25-403.03.

9. The nature and extent of coercion or duress used by a parent in obtaining an agreement regarding legal decision-making or parenting time.

10. Whether a parent has complied with chapter 3, article 5 of this title.

11. Whether either parent was convicted of an act of false reporting of child abuse or neglect under section 13-2907.02.

Factor number four states, “If the child is of suitable age and maturity…”. There is no magical age when a child gets to decide. The “wishes of the child” is just one of the factors that the court will consider. A child’s voice can be heard, but it is not up to the child. The reasons are fairly simple. Children (as well as some adults) do not always make the best decisions. Children are often easily influenced and parents going through a divorce might try and influence a child’s decision by offering bribes, e.g. a new puppy, a car, no curfew, etc.

In conclusion, if parents are unable to agree on a parenting time schedule it is not up to the child to decide. Yes, the court can consider the child’s wishes, but that is not the end of the inquiry and the court will consider other factors as well.

Daniel J. Siegel is a Certified Specialist in Family Law by the State Bar of Arizona. For help with divorce, parenting time, paternity, child support or any other legal matter, call Daniel J. Siegel, P.C. at 602-274-1099.

This information is provided to inform our clients and friends about important issues in divorce and family law.

The content on this site is for informational purposes only. This site and the information contained within it is not legal advice, nor is it intended to be. Internet users should not act upon information contained on this site without first seeking advice from an attorney.

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Are you entitled to spousal maintenance?

Posted by on Nov 29, 2016 in Blog | Comments Off on Are you entitled to spousal maintenance?

Daniel J. Siegel, P.C., spousal maintenance, married couple divorcing with moneyI am often asked,

“If my spouse files for divorce, will I get spousal maintenance?”

“How much spousal maintenance will I get and how long will I get it?”

These questions are understandable for anyone facing a divorce. However, the first question to ask is: Does that spouse qualify for an award of spousal maintenance?

Arizona Statutes

The law governing spousal maintenance is set forth in A.R.S. §25-319(A). That part of the statute states as follows:

A. In a proceeding for dissolution of marriage or legal separation, or a proceeding for maintenance following dissolution of the marriage by a court that lacked personal jurisdiction over the absent spouse, the court may grant a maintenance order for either spouse for any of the following reasons if it finds that the spouse seeking maintenance:

1. Lacks sufficient property, including property apportioned to the spouse, to provide for that spouse’s reasonable needs.
2. Is unable to be self-sufficient through appropriate employment or is the custodian of a child whose age or condition is such that the custodian should not be required to seek employment outside the home or lacks earning ability in the labor market adequate to be self-sufficient.
3. Contributed to the educational opportunities of the other spouse.
4. Had a marriage of long duration and is of an age that may preclude the possibility of gaining employment adequate to be self-sufficient.

The typical spousal maintenance recipient usually qualifies pursuant to A.R.S. §25-319(A)(4), meaning the couple has been married for a long time and one spouse was out of the work force for most of the marriage and will not be able to find employment to be adequately self-sufficient. In that situation, unless the parties’ marital community has amassed significant assets that will provide for that spouse’s “reasonable needs” that spouse will typically be entitled to spousal maintenance.

What’s Next?

Once it is determined that a spouse qualifies for spousal maintenance pursuant to A.R.S. 25-319(A), then the court must determine the amount of maintenance and for how long.

A.R.S. 25-319(B) sets forth some of the factors that the court will consider in determining how much spousal maintenance to order and for how long.

A.R.S. 25-319(B) states as follows:

B. The maintenance order shall be in an amount and for a period of time as the court deems just, without regard to marital misconduct, and after considering all relevant factors, including:

1. The standard of living established during the marriage.
2. The duration of the marriage.
3. The age, employment history, earning ability and physical and emotional condition of the spouse seeking maintenance.
4. The ability of the spouse from whom maintenance is sought to meet that spouse’s needs while meeting those of the spouse seeking maintenance.
5. The comparative financial resources of the spouses, including their comparative earning abilities in the labor market.
6. The contribution of the spouse seeking maintenance to the earning ability of the other spouse.
7. The extent to which the spouse seeking maintenance has reduced that spouse’s income or career opportunities for the benefit of the other spouse.
8. The ability of both parties after the dissolution to contribute to the future educational costs of their mutual children.
9. The financial resources of the party seeking maintenance, including marital property apportioned to that spouse, and that spouse’s ability to meet that spouse’s own needs independently.
10. The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment and whether such education or training is readily available.
11. Excessive or abnormal expenditures, destruction, concealment or fraudulent disposition of community, joint tenancy and other property held in common.
12. The cost for the spouse who is seeking maintenance to obtain health insurance and the reduction in the cost of health insurance for the spouse from whom maintenance is sought if the spouse from whom maintenance is sought is able to convert family health insurance to employee health insurance after the marriage is dissolved.
13. All actual damages and judgments from conduct that results in criminal conviction of either spouse in which the other spouse or child was the victim.

In Arizona, it is clear the award of spousal maintenance is a discretionary decision that is left up to the sound discretion of the assigned trial court judge.

In the Arizona Court of Appeals decision of Hardin v. Hardin 163 Ariz. 501, 788 P.2d 1252 (Ariz.App. 1990), the Arizona Court of Appeals explained as follows:

“The trial court’s grant of spousal maintenance is governed under A.R.S. § 25-319. An award of spousal maintenance is within the sound discretion of the trial court. Our review is limited to determining whether the trial court abused its discretion in awarding spousal maintenance.”

When it comes to the issue of spousal maintenance, there is no easy equation or formula to determine how much or for how long.  Anyone facing a spousal maintenance claim should seek the advice of an experienced family law attorney.

Daniel J. Siegel is a Certified Specialist in Family Law by the State Bar of Arizona. For help with spousal maintenance issues or any other legal 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.

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How Is Child Support Affected By Re-Marriage or Cohabitation?

Posted by on Oct 14, 2016 in Blog, Child Custody and Support | Comments Off on How Is Child Support Affected By Re-Marriage or Cohabitation?

How Is Child Support Affected By Re-Marriage or Cohabitation?

When a divorced parent enters into a second marriage or cohabitation arrangement, the question that often arises, as a result of the new arrangement, is whether or not the new spouse or cohabitant’s income is relevant for calculating a new child support amount.

The Arizona Child Support Guidelines address this situation as follows:
Section 5. F. Only income of persons having a legal duty of support shall be treated as income under the guidelines. For example, income of a parent’s new spouse is not treated as income of that parent.

However, that is not the end of the inquiry. Additionally, the definition of “gross income” in the Arizona Child Support Guidelines includes “recurring gifts”.

Legal Cases

There are two main cases in Arizona that deal with this issue. The first case is Cummings v. Cummings, 897 P.2d 685, 182 Ariz. 383 (Ariz.Div. 1, 1994). In Cummings, the Mother lived in a house owned by her parents and they made the monthly mortgage payment of $973.00 on Mother’s behalf every month. The Father asked that the court consider the mortgage payments as gifts to Mother and include the $973.00 as income to her. The court agreed with Father and included the $973.00 as part of Mother’s monthly income for purposes of calculating the child support.

The other case is In Re The Marriage Of Colleen Pacific, 815 P.2d 7, 168 Ariz. 460 (Ariz.App. 1991). In the case of In Re Pacific, both parents were remarried and the trial court attributed one-half of their new spouse’s income to each of the parents when determining their incomes for purposes of calculating the child support. The Court of Appeals ruled that the trial court erred, but indicated that the trial court “was entitled to consider the extent to which Father’s living expenses were defrayed by his wife’s income…”.

Although the Arizona Child Support Guidelines indicate that income of a parent’s new spouse should not be considered as income of that parent, that is not the end of the inquiry. As we learned from the court rulings in Cummings v. Cummings and In Re Pacific, the court can consider recurring gifts as income and the extent to which a new spouse’s income defrays the expenses of the parent.

These types of cases can be very fact intensive and involve a fair amount of discovery and investigation. Like most legal matters, it comes down to the evidence and what you can prove. If you are paying child support and the other parent is remarried or cohabitating, call Daniel J. Siegel, 602-274-1099, to discuss how that new relationship could affect your child support.

Daniel J. Siegel, is a Certified Specialist In Family Law by the State Bar of Arizona. For help with child support or any family law matter, call Daniel J. Siegel, 602-274-1099.

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