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

Posted by on Jan 13, 2017 in Blog

For 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...

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Are you entitled to spousal maintenance?

Posted by on Nov 29, 2016 in Blog

I 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,...

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