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Information on Family Law

Information on Family Law At Weingart Law Firm, our mission is to learn and understand our client’s needs and the external factors affecting them so that we may aggressively and profession lay represent them throughout the legal process. We clearly communicate our knowledge and experience, thereby enabling our clients to make well-informed decision for themselves.

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Divorce Pre-NuptialĀ Agreements Child Custody and Access Child Support Division of Community Property & Debts Spousal Maintenance Paternity Step-Parent Adoption Child Custody and Access

As a general introductory observation to custody and parenting time access, there is a strong institutional belief in the family law courts that children will benefit by having ongoing, meaningful and unrestricted relationship with both parents after the parent’s marriage is dissolved. To make a court depart from this belief, there must be some fairly convincing evidence that a parent presents a immediate and significant risk of physical or emotional danger to the children.

The courts also have a strong institutional belief that the children will benefit if the custody and parenting time access (visitation) issues can be settled can be without a court fight as this encourages future co-operation between the parents which creates a happier and less stressful environment for the child. The court will almost never reject a settlement agreement reached by the parents in respect to custody and access unless on it’s face it appears to involve some risk of harm to the children. Child custody has two components.

The first, normally referred to as legal custody , is concerned with decision making in respect to the children’s educational, medical, religious, and financial issues. It can be “sole custody” in which one parent gets to make all these decisions without the other having any say in the matters, or “joint legal custody” because this encourages both parents ongoing involvement with the children unless there are reasons, such as a documented history of significant domestic violence between the parents, which precludes the parents from being able to confer with on another.

The second component is “physical custody” which refers to the residential arrangement for the children. This can be set up to that one parent is designated as the “primary residential custodian” with the other being awarded “parenting time access (visitation)” or as “shared physical custody” in which the children reside for an essentially equal amount of time with each parent.

Most court’s do not favor “shared physical custody” as this stresses the children’s sense of stability. but will award it if the parents agree to such arrangements, or if there are older children who really want such an arrangement. Where one party is designated the “primary custodial parent”, the courts are granting more liberal access to the non-custodial parent than was in the past granted.

In cases where the parent’s cannot agree as to custody or parenting time access, the court is directed by statue and by previous appellate court’s interpretation of the statue to consider various factors in determining what arrangements it should order. The court is mandated overall to base it’s orders as a child custody and parenting time access on the best interest of the children.

Beyond that, the statute does not direct the court to give more weight to any one of the factors than to any other. The various factors include the following. The court can consider the wishes of the child, but varying weight will be given to such wishes depending on the child’s age and on how well they are able to express themselves. Little weight is given to the expressed wishes of your children as they are too susceptible to parental pressures.

More weight is given to the wishes of teenage children. Which parent is more likely to allowing the child to be a meaningful ongoing relationship with the other parent. As above stated, unless bad circumstances are shown to exist, the courts believes children benefit greatly from an ongoing relationship with both parents after the divorce. If one parent is attempting to alienate or withhold the children from the other, the court will look unfavorable towards that parent.

Whether one parent has made false allegation of child abuse or neglect against the other. This rarely happens, but if it has, it evidences a strong propensity by the parent making such false claims to impair the relationship between the child and the other parent.Who has been the primary care giver to the children. Who gets them up in the morning and puts them in bead at night.

Picks up after school outings and helps wit homework. Who takes to the children to the doctor, stays home with them when they are sick, Who cooks their meals, takes them shopping, does their laundry, gives them baths, takes them to their after school activities, coaches their teams, etc. If one parent has willing assumed this roll in the past, the court can have some assurance that such care will be extended in the future. The child’s contacts with their home, school and neighborhood.

Since divorce is emotionally traumatic for children, a parent who can or is will provide stability to child’s pre-divorce environment is looked upon favorable by the court.The relationship that historically exists between the respective parents and the child, the child and any siblings the child may have or extended family or family-like relationships. If one parent has extended family relationships which whom the children have been close historically, continuing such relationship by awarding primary residential custody to that parent enhances the children’s sense of stability and enlarges the children’s emotional safety net.

The mental and physical health of the parties. IF these would impair either parent’s ability to effectively parent children or create emotional or physical safety issues for the children, then the court will consider the parent’s health status. Be requesting custody or parenting time access, a parent for the most part waives any physical/patient relationship which that parent has with treating health care providers. There certain negative histories which will or may work against a parent seeking custody or parenting time access.

These include a fairly recent history of drug abuse or alcohol abuse. a recent history of domestic violence, a recent history of other criminal conduct. If one parent alleges that the other is using drugs or alcohol and requests that the other be tested for such substances, most court will offer that both parties, not just the one making the allegation, submit to same day urine and hair follicle testing at TASC.

At times one parent does believe that the other constitutes an immediate, significant danger to the children, if parental access is allowed, and that parent can request that the other parent’s visitation be ordered to occur only in the presence of a third party, normally a court recognized supervisory facility such as Parenting Skills.

Such allegations should not be lightly made, as they can backfire in for supported by objective evidence. If parenting time access is ordered supervised, such supervision is normally mandated by the court only for so longs as is needed to alleviate any danger presented. For example, if one party tests positive for controlled substances, that party may not be allowed unsupervised access with the children until that party has successfully completed a series of random drug tests. If that part can successfully complete such a drug testing regimen, such access will cease to be supervised.

CHILD SUPPORT

Child support must be paid in whatever amount, if any, is determined to be applicable for any child that is eighteen years of age or under or that is eighteen years of age and still attending high school. Once a child is both eighteen years old and is no longer attending high school, or once a child attains nineteen years of age without regard to whether the child is in high school or not, the obligation to pay child support ceases unless the child is disabled and is in need of such support because of such disability.

Courts are required by statute to follow the “child support guidelines” in calculating the amount of child support to be paid. The guideline is a formula which will yield a specific amount of support as a result of the inputs inserted into the formula. Controversies over the among of support to be paid normal involve disputes as to these inputs.

The inputs which the courts consider, and which parents may contest, include the following: the gross (before tax) income of each parent; if a parent is unemployed or underemployed the amount of gross income that should be imputed to that parent; the amount of spousal maintenance either parent pays or receives; the number of minor children who are common to the parents; the number of such children who are 12 years old or older; the cost of health care insurance and who pays such costs; the cost of day care and who pays such costs; any costs associated with the special needs of the children, whether “shared physical custody” or by way of “parenting time access” where one parent is designated a the primary residential parent.

The court will also determine the allocation of the children between the parents as tax exemptions on the parent’s respective post-dissolution tax returns. This allocation is normally made on the basis of each parent relative income percentages as determined on the child support worksheet prepared in accordance with the child support guidelines. The parties can by stipulation agree to support in an amount different than is calculated by the guidelines calculation, and the court will accept such stipulation if it is shown to be in the children’s best interest.

As a practical matter the court will usually adopt such stipulations with little critical scrutiny. The obligation to pay or the right to receive child support begins the first of the month immediately following the date the parents began to live separated and apart, without regard to when the Petition for Dissolution was filed or served. Child support is not normally ordered if the parents continue to live together even if a dissolution action is initiated.

If the parent owing support has been making such payments to the other spouse without a court order being first entered, the paying parent will normally be given credit for such payments if it is reasonably clear that the payments have been for child support rather than for some other reason. If the beginning date results in one parent owing child support which has been unpaid, the court will normally give the party owed such support a judgment against the other party in that amount. This judgment bears interest at the legal rate of 10% per annum, simple interest.

The parent owing on such judgment will normally be ordered to make monthly payment to the other party in addition to the ongoing monthly child support obligation in an amount sufficient to cover the interest accruing monthly and to make some payment towards reducing the principle. As a rule of thumb, this additional payment towards the arrearage will be in an amount roughly twice the monthly interest owed on judgment.

Child support is usually ordered paid by wage assignment against the payer’s employer and is paid through a court related agency, the Support Clearing House. This is primarily for the court’s convenience and constitutes no reflection on the character of the payer. Until the wage assignments come into effect, the payer is excepted to make such payments as are owed in the Support Clearing House.

Once the court orders that payments be made through the Support Clearing House, payments made directly to the payee are presumed to be gifts to the payee and not child support payments.

DIVISION OF COMMUNITY PROPERTY AND DEBTS

In Arizona there are two types of property, separate property and community property. In a dissolution action, the court has no power to award one party on portion of the other’s separate property. The court is required to divide the community property “equitably” between the parties. This normally means equally unless some good cause exists to split it unequally. Separate property is any property owned by either party before the parties’ married, or received by either party after marriage by gift or inheritance. All other property is community property is community property.

Community property in brief description essentially consists of any earnings by either party after the marriage or anything derived from or purchased by such earnings. It includes such things as bank accounts, savings accounts, investment accounts, money market accounts, stocks or bonds purchased during the marriage, 401(k) accounts, IRA accounts, deferred income accounts, stock options, cash value of insurance policies, residences, cars, boats, trailers, and all manners of tangible personal property.

The nature of property as either separate or community property is determined at the time of its acquisition. In some instances, separate and community property may be mixed up. For example some money may be paid into a 401 (k) before the parties marry and additional money added after the marriage. If the court can separate these mixed funds, it will do so, If adequate records have been kept or can be obtained, the court will normally make such as separation.

If it cannot sort out the property, then it will treat all such hopelessly co-mingled property as community property. In dividing community property, a court will not normally divide each asset individually, though it may do so in respect to large dollar items. Rather, it will try to divide the property so that each person receives assets having roughly an identical aggregate value.

The court normally will not deal with trivia, i. e. the knives one spouse wants is worth more than the spoons the other gets. In such cases, the court will order such disputes be resolved through a court ordered sale of the assets with the proceeds being divided. The court will consider an unequal division of assets if one spouse can evidence that an even division is unfair.

For example, if the court determines one spouse is hiding assets from the other or has wasted community assets. The term “waste” is a term of art and does not mean that community property was used unwisely. It means that the asset was used in a way that any reasonable person would conclude it did not benefit the community.

For example, a spouse has used community funds to take a boyfriend or girlfriend to Paris for a romantic interlude.

As this obviously did not benefit the marital community, but rather was detrimental to the communities’ ongoing existence. The other spouse can be compensated for this “waste”. Debts are likewise either separate of community. A court cannot order a spouse to pay the separate debts of the other spouse. Community debts are split equitably. Any debt incurred by either spouse before the marriage is the separate debt of the spouse which incurred the debt.

Debts incurred after the marriage are usually community debts. And equitable division of community debts normal requires an equal split of such debts. There are exceptions to this. IF a debt goes with an asset, for example a car payment is owned on a car which is awarded to a party, the party who gets the asset is responsible for its related debt. If a debt uniquely benefits one party post dissolution to the exclusion of the other, for example a school loan, the party realizing the benefit may have to pay the debt.

If a debt arises out of the waste of community assets, for example the trip to Paris with the girlfriend or boyfriend was put on a credit card, the person wasting the community property by incurring such debt may have to pay the debt. It is important to realize that even though the court can order one party to a pay a particular debt, the court does not have the power to forgive the other party that debt.

If the one ordered to pay the debt does not pay it, then the creditor can pursue the other party of if chooses to do so. If the other party has to pay the debt, the other party can get a judgment for reimbursement against the one ordered to pay the debt.

SPOUSAL MAINTENANCE

Spousal maintenance is awarded for one of two purposes. The first purpose is “Rehabilitative”. The second is “Permanent”. Rehabilitative spousal maintenance is awarded in marriages of intermediate duration. This normally refers to marriages of over three years in duration but less thank twenty. It is awarded to a spouse who lacks assets or an earning capacity sufficient to meet the spouse’s reasonable needs and is designed to give that spouse the opportunity to develop such and earning capacity. It is awarded as a fixed monthly payment for a fixed period of time.

Permanent spousal maintenance is may be awarded in marriages of long duration, that is, over twenty years, where one spouse has little if any work experience ad is of such and age, usually over 50 years, that there is little realistic chance that the recipient spouse will ever be able to accumulate the assets or achieve an earning capacity sufficient to meet that spouses reasonable needs. If may be awarded in other circumstances, for example, where the spouse seeking maintenance has no assets and is completely disabled from any employment whatsoever.

Permanent spousal maintenance is awarded as a fixed monthly payment for an “indefinite” period of time. The term “reasonable need” is especially important. It is not a fixed or presumed amount, and does not suggest that spousal maintenance is to be awarded in the bare minimal amount need by an ex-spouse to just barely get by. It term is defined by reference to the standard of living enjoyed by the spouses during the course of their marriage. Thus the “reasonable needs” of the spouse of a person who earns $100,000 per year are different than the “reasonable needs” of the spouse of a persons who earns $20,000 per year.

At the same time, as least in respect to rehabilitative spousal maintenance, the primary purpose of such award is enable the recipient’s entry into the work force, and it should not bee awarded in an amount or for such a period as to thwart this purpose. The determination of spousal maintenance is a two step process.

First the court determines whether any one of the following applies: the spouse seeking such maintenance lacks sufficient property to provide for that spouses reasonable needs (in respect to the property criteria, the court looks to the earning capacity, real or imputed, of the property and the spouse seeking maintenance is not required to spend down the principle to support himself or herself); or, the spouse is unable to provide for such reasonable needs through appropriate employment or cannot work because of the age or condition of minor children in that spouse’s custody; or, the spouse contributed to the educational opportunities of the other, or, the marriage is of long duration and the spouse seeking maintenance is of an age that may preclude the possibility of the spouse’s gaining employment sufficient to meet that spouse’s reasonable needs.

Once a determination is made that a spouse qualifies for spousal maintenance, the court then must determine the amount and duration of such award. The court by statutory directive must consider thirteen factors, as applicable, in making this determination.

These include:

the standard of living established during the marriage;

the duration of the marriage; the age, employment history, earning ability and physical and emotional condition of the spouse seeking maintenance;

the funds that will be left available to the spouse paying maintenance after the award to meet that spouse needs;

the comparative financial resources of the spouses, including earning capacity; the contribution of the spouse seeking maintenance to the other earning capacity (includes enabling conduct such as staying home and caring for children and residence to lift this burden from working spouse, attending or hosting promotional functions, frequent relocation, actual work in working spouse’s business, etc.);

the extent that the person seeking maintenance has given up career opportunities to further the spouse’s opportunities;

the ability of parties to further children’s future educational costs;

the earning capacity, actual or imputed, of the financial resources available to the person seeking maintenance;

the time needed for the person seeking maintenance to develop a sufficient earning capacity;

excessive expenditures or waste of community assets by the spouse against who maintenance is sought;

the future cost of health care and health care insurance which will be incurred by the spouse seeking maintenance and any reduction in cost that will be realized by the personal against whom maintenance is sought;

any actual damages or judgments suffered by or awarded to the spouse seeking maintenance, or the parties minor child, against the other spouse as a result of conduct which results in the criminal conviction for the spouse against whom the award will be entered.

Court decisions have held that several of these factors are intended to allow the recipient spouse to share in the financial success that the spouse helped create, so that the award of maintenance is not limited just to the “reasonable needs” of the spouse seeking such and award. Spousal maintenance is not usually awarded in marriages of short term duration, that is, a term of less than three years.

The statutory factors as to amount and duration are for the most part not present in such cases, though if a unique circumstance exist there is no absolute prohibition against a court ordering spousal maintenance in short term marriages. If you spousal maintenance is not awarded in the original decree, it cannot be later awarded. Spousal maintenance, if awarded by the court in a contested case, and without record to whether the award is for a fixed period of time or “indefinite” is always modifiable both as to its amount and duration should future circumstances make such modification equitable, provided that such modification is requested prior to the expiration of the term for which it is set.

Modifiable spousal maintenance terminates with the death or remarriage of the recipient if either occurs during the term established. The parties can by stipulation agree to make spousal maintenance “un-modifiable”. This means that regardless of what future circumstances occur, the spouse maintenance award cannot be changed either in amount of duration.

The benefit to the payer of an “un-modifiable” award is that there is a definite amount, beginning and end to the spousal maintenance award around which the payer can plan. The detriment to the payer is that the payer will continue to owe such award without regard to any changes in the payer’s earning capacity, health or evolving needs. The benefit to the recipient of an “un-modifiable” award is that it continues without regard to the payer’s ability to pay.

The determent to the recipient is that it cannot be modified if unforeseen future circumstances preclude the recipient from attaining self sufficiency. In general, all thins equal, payer’s often prefer awards to be “un-modifiable” and recipients prefer that they be “modifiable”. Each case is unique.

Spousal maintenance is an adjustment to (i.e. a deduction form) the gross income of the payer. It is taxable income to the recipient. If child support is also at issue, it decreases the income attributable to the payer and increases the income attributable to the recipient. Thereby, payment of spousal maintenance can decrease the amount of child support owed, though the decrease is proportional and is not a dollar for dollar decrease.

There is no guideline providing for the calculation of spousal maintenance as exits in respect to child support. There is a formula which has never been formally accepted by the courts that can be applied to give a rough “rule of thumb” estimation of the amount and duration of such an award. It is as follows.

The number of years of marriage is multiplied by 1-1/2% to yield a percentage called the “duration factor”. The difference between the earning capacity of the respective spouses is then determined, and this difference is multiplied by the “duration factor”. This calculation yields a rough estimation of the amount of spousal maintenance. The duration of spousal maintenance would be for a period of time between 1/3 and 1/2 of the duration of the parties marriage.

PATERNITY

A paternity action is an action to establish a father/child legal relationship whenever the child is born out of wedlock. This usually occurs under circumstances where the mother and the putative father were never married, but also may occur when the parties marry after a child is born. In the latter situation, paternity can be established in a subsequent dissolution action, should one ensue, without having to file a separate paternity action.

If a dissolution action is not involved, a father might wish to have paternity established if there are subsequent children born in wedlock to make certain the child born out of wedlock has co-equal rights with those children. Paternity actions may be initiated by the natural mother, the putative father, or by the Arizona Attorney General.

The Arizona Attorney General will initiate this action of the natural mother has been the recipient of benefits from the state relating to the minor child. This is done to minimize the state’s financial obligations or to recoup benefits paid by the state. Paternity can be established in several ways, first voluntarily by the execution of a notarized or witnessed statement acknowledging paternity that contains the social security number of both parents and is signed by both parent’s, or by two separate statements complying with the stated criteria.

A statement that is witnessed must contain the printed name and address of the witness. The witness must be an adult who is not related to either party by marriage. It can also be established by an agreement of the parties to be bound by genetic testing, if such testing is done by a certified laboratory using a test accepted by the court, or any combination of testing agreed upon by the parties, and the laboratory certifies by affidavit that the tested father has not been excluded by the test from being the father.

The documents arising out of these voluntary actions must be filed with either the clerk of the superior court, department of economic security or department of health services. The filing of such document establishes paternity and has the same force and effect as a court order.

A voluntary acknowledgement of paternity can be rescinded in writing within 60 days after the last party signs the acknowledgement by filing the written rescission with the department of economic security. Otherwise, the establishment of paternity cannot be set aside unless the person seeking to set the establishment aside can show that the acknowledgement of paternity was obtained by fraud, duress or material mistake.

If there is no voluntary acknowledgement of paternity by the parties, either the mother or the putative father may initiate a paternity action in court to establish paternity. The party initiating the action alleges that the putative father is in fact the natural father of the child in the petition. If the other party fails to respond to this petition in a timely manner after being served with a summons, paternity will be established by “default”.

If the person being served admits in the response that the putative father is the natural father of the child, paternity is thereby established by judicial stipulation. A man is presumed to be the father of a child if both he and the mother sign the birth certificate of a child born out of wedlock. This presumption does not “legally” establish paternity.

This must be done by filing an action for paternity with the court requesting that a court order be entered based on the birth certificate. This presumption is an evidentiary presumption, and it can be rebutted by clear and convincing evidence. A genetic test that excludes the man from being the father will normally constitute such evidence. If a party to an action for paternity denies that the putative father is the natural father of a child, the court will order the putative father and child to submit to genetic testing.

This is a non-invasive procedure requiring only the swipe of a cotton swab in the mouth of the subjects. Genetic testing by a certified lab using commonly accepted procedures is practically unimpeachable as the odds against a false positive are astronomical. If the test indicates that the putative father is the natural father of the child, the court will find paternity unless the party objecting to the result can show by absolutely indisputable evidence that it was physically impossible for the putative father to have fathered the child.

If a party is ordered to participate in genetic testing and fails to do so, paternity can be established by “default” in the same manner it would be if the party fails to respond to a petition to establish paternity. Once paternity is established, the father has all the legal rights and obligations which the father of a child born in wedlock would have. That is custodial and parenting time access (visitation) rights and child support obligations.

The nature and extent of those rights and obligations is determined using the same legal standards and guidelines as would be used in a dissolution action, except in a paternity action child support can be made retroactive in time back to the birth of the child, but for no more than a maximum of three years unless special circumstances exist which would make it equitable to make the award retroactive for a longer period.

The determination of these issues does not occur automatically. Either the mother, father or the Arizona Attorney general must request a hearing from the court to determine these issues.

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