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Arizona Is A No Fault Divorce State

Posted by on Aug 2, 2017 in Blog

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

Posted by on Oct 14, 2016 in Blog, Child Custody and Support

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. Follow me here:Thanks for following me! Please check back for new...

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