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A Proposed Change In Arizona Family Law Statute Could Make It More Difficult For You To Move After A Divorce

Posted on: February 13th, 2013 by Kevin Jensen

Imagine you are a divorced single parent living in Mesa, Arizona and you get a great job that provides you and your children a good living and benefits but would require you to move to Scottsdale (see Tiffany Fina Law). Although that is not terribly far away, the move would require you to move further away from your children’s other parent. Or, imagine after several years of being a single divorcee’ you meet your soulmate and decide to get married. Your new spouse has a great house and a great job in Glendale and you decide that you want to move to his or her house that will have plenty of room for you and your kids. Now imagine that before you can make that move you will have to get the permission of your ex-spouse to move further away from him or her or get a court order allowing you to make that move before you can move anywhere with your children, including across town! I see this issue all the time as a family law attorney in Mesa AZ all the time.

This seems absurd, right? If a proposed change to Arizona’s Parenting Time and Relocation statute are passed, that is exactly what you will have to do. Under Arizona’s current law, a parent cannot relocate a child more than 100 miles from the other parent without either obtaining consent of the other parent or obtaining a court order. In a previous blog, I discussed Arizona’s 100-mile rule and the procedures that need to be followed to relocate children more than 100 miles from the other parent. The proposed changes in the law would require the moving parent to give the non-moving parent sixty days notice of his/her intent to relocate the child/children. There is no limitation on how far away the moving parent intends to move before the sixty-day notification is required.

In my examples above, if a parent wants to move from Mesa to Scottsdale or from Mesa to Glendale, regardless of the reason, he or she must give the non-moving parent sixty days notice of his or her intent to move with the children. The parent will then be required to provide the reason for the move, but must also file a copy of the notice with the family court and provide the court a reason for the move. Following proper receipt of the notice, the non-moving parent would have thirty days to object to the move. This also would require the filing of an objection with the court. If an objection with the court is filed by the non-moving parent, the moving parent then has to file a Petition to Relocate and the court gets to decide.

As with most statutory changes, there are pros and cons. Here, the clear design of the proposed changes is to make sure that non-moving parent’s parenting rights (including visitation) are disturbed as little as possible; at least not without the non-moving parent having a say in the decision to relocate. There are some good reasons for this. For example, a move across town can have implications for things such as parenting time and participation in activities by the non-moving parent. A trip across the Phoenix metro area can take an hour or more each way. This time can seriously impact a visitation schedule that involves one-week night per week with the non-custodial parent. It can affect the non-moving parent’s ability to take part in school events or extracurricular activities. The proposed changes favor a non-custodial parent’s rights and ability to participate as much as possible in the parenting of the children.

In this case, however, I think the negatives outweigh the positives. For one thing, the proposed statutory changes may limit natural life changes that can benefit the children. A mother who is struggling to provide for her children may find it cost prohibitive to spend two hours per day traveling across town for work. It may prohibit mothers and fathers from getting remarried, which in some instances can be a tremendous benefit to the children. Imagine finding Mr. or Mrs. right and telling them that you can only marry them if they agree to live near your ex. I think the most troubling possibility is that it places an ex in a position of power. I have had had many cases involving bitter ex-spouses who would love nothing more than to make life difficult for their ex-husband or wife. Here, a move even a few blocks or miles away would require the consent of the ex-spouse. An ex-spouse, who for no other reason than to be spiteful, could easily refuse consent and then the whole matter would have to go through the court system costing thousands of dollars. Moreover, the family court system does not always move quickly. In some cases, waiting for a court decision on relocation is not practical and could result in lost opportunity.

I think the 100-mile rule is as reasonable a solution to the problem of relocation as currently exists. Although a move across town may be inconvenient for the non-moving parent, it can be workable. Perhaps changes that require the moving spouse to incur more of the inconvenience, such as transportation to the non-moving spouse for parenting time would be more reasonable. I think there are a number of other solutions to the problem of protecting a non-moving parent’s visitation time than potentially locking a single parent into a geographical location that only benefits one person (the non-moving parent) in the family.

In my opinion, the proposed statutory changes have the potential to create far more problems than they solve. In the long run, SB 1072 will likely result in more fights, more legal expenses, and more court costs. I encourage anyone who may be affected by these statutory changes to make sure their state representatives know how you feel about these proposed changes. If you would like to review the text of the proposed changes to the statute, you can view them here.

What is a Divorce Hangover and How Do I Avoid One?

Posted on: February 6th, 2013 by Kevin Jensen

Truth be told, I don’t drink, so I have never had a hangover. I had plenty of friends in high school and college who had them. From my perspective, it always seemed to me that having a hangover was a mighty steep price to pay for an evening of “fun” that you couldn’t even remember the next day. What my friends could remember was the pain and headaches and misery that accompanied their hangover. Frankly, the hangover usually made my friends miserable to be around until after they got over it.

As a family law lawyer in Mesa, I have seen many people suffer from post-divorce hangovers. And, just like my friends who were unpleasant to be around while they were experiencing their drinking hangovers, people with divorce hangovers are unhappy and sometimes difficult to be around. This often extreme unpleasantness can result in unfortunate effects on other family members, particularly children who are often the biggest victims in divorces, as well as other family and friends who are really looking to offer support.

I think the best description of a divorce hangover is found in an article entitled “Taming the Divorce Hangover”. Here, the author talks about the pain and emotion, including anger that often accompanies a divorce. There is no shame in having those types of feelings. Divorce is difficult. It is, in reality, a death of sorts; the death of your marriage. For some people the death of their “happily ever after.” However, when those feelings of pain and anger are allowed to keep going on and on and don’t seem to subside, you are probably experiencing a divorce hangover.

There are numerous problems that can arise from a divorce hangover. One of the big problems I see is that some people just cannot let go. The anger and pain they feel is targeted toward their ex-spouse. In many cases, it is very understandable. But this unchecked, untreated anger leads to bigger problems. In my experience, the anger can lead to things such as a belligerent refusal to pay support (“I’m not giving that evil person my money”), refusal to cooperate with decisions regarding children, finding any reason to haul the ex-spouse back into court, damaged relationships with children and other family members and the list goes on. In some horrible extreme cases, violence occurs.

So how do you deal with a divorce hangover? That’s a difficult question to answer. I am a lawyer, not a counselor, so I’m not in the habit of giving that type of advice. However, counseling may be the very place to start. For many people, the hangover is occurring because they just can’t let go and move forward. As a family law attorney in Scottsdale my cases, I have dealt with involving people who I consider to be suffering from divorce hangovers, in most instances, the person with the hangover simply cannot let go and wants the ex-spouse to continue paying the price for what he or she perceives the ex-spouse has done to him or her. Of course, letting go and moving forward is easier said than done. Those who find a way to do this are able to have happier and healthier futures. Those who don’t wind up going back to court over and over and over. This results in more misery, more anger, and more legal expenses.

The author in the article referenced above provides some good ideas for recognizing and dealing with anger issues, which I recommend for your review and consideration. I believe the first step in overcoming any divorce hangover is to make a commitment to yourself to allow yourself to heal and move forward. Time heals all wounds if you allow it to do so. Like an alcohol hangover, the best remedy is time. After a while, the sickness, nausea and headaches pass and life is good again. A divorce does not have to result in long-term suffering. Be proactive in allowing yourself to move on as reasonably quickly as you can. Get professional help if necessary, there is no shame in doing so. The result of avoiding a divorce hangover is a healthier relationship with your ex (which really is a must if you have children together) and a healthier relationship with others in the future.

Deadbeat Parents: How to Enforce Your Arizona Child Support Order

Posted on: January 16th, 2013 by Kevin Jensen

I read an interesting article the other day about a man named Corey Curtis in Wisconsin. Mr. Curtis is the father of nine children with six different mothers. According to the news article, Mr. Curtis owes almost $100,000 in back child support. The fact that Mr. Curtis has multiple children by multiple women and is not paying child support is not what made this story newsworthy. What made this article interesting is that the family court judge, exasperated by Mr. Curtis’ failure to take responsibility for his children by paying his child support, ordered, as a condition of his probation, that he not procreate until he can demonstrate to the court that he can provide for his children. Under Wisconsin law, this type of legal restriction is permissible.

The problem with deadbeat parents is a nationwide problem, including in Arizona. Here in Maricopa County, Sheriff Joe Arpaio conducts an annual deadbeat parent roundup. These sweeps are aimed to locate and to arrest the parents (usually fathers) who are not providing court-ordered financial support for their children. Sheriff Arpaio points out that the purpose of his “Operation Don’t Be a Deadbeat” roundups is to send a message to parents to pay their child support. This is one of Sheriff Joe’s programs I can support.

The failure for a parent to pay child support can impact all of us. According to a 2011 Census Bureau Report, more than $35 billion dollars in child support was owed nationally in 2009. Among the more than 6.9 million custodial parents who were awarded child support in 2009, only 41.2% received the amount that was due. 29.2% of custodial parents nationwide received none of the child support money they were due. The lack of payment to support these children naturally results in the need for more government programs to assist single parents who do not get consistent support. Other government resources, such as courts and child support enforcement agencies spend millions each year to track down deadbeat parents.

In my experience as an Arizona family law attorney practicing in Mesa and the East Valley, the best strategy to enforce the non-payment of child support is to be aggressive and consistent. State and federal laws make it a crime to not pay child support. Too many single parents, mostly mothers, simply do not have the ability or resources to try to enforce child support orders. One good resource in Arizona is to contact the child support enforcement division of the Arizona Department of Economic Security. AZDES has many resources to assist in the enforcement of child support orders. Among the remedies available to AZDES is to seize assets of a non-paying parent, placing liens on the property, intercepting lottery winnings, suspension, and revocation of drivers’ licenses and reporting non-payment to credit bureaus.

Another option is to hire an experienced Arizona family law attorney to file a child support enforcement petition and/or motion for contempt. An enforcement or contempt action is brought before a family court judge, usually, the judge that handled the original divorce. The process includes filing a petition and serving it on the non-paying party. The court then sets an Order to Show Cause hearing and requires the non-paying parent to come into court and explain why he or she is delinquent in paying their child support obligation. The court can impose any number of remedies under Arizona law, including garnishment, attachment, liens, etc. Status conferences on frequently set so the court can continue to track the progress of the non-paying parent. More significant remedies can be imposed, including jail and criminal charges for failure to pay child support. I frequently hear some individuals threaten to file bankruptcy on back-child support. This is an idle threat because child support is non-dischargeable in bankruptcy court. A child support arrearages never will go away and just keeps accruing interest for years and years to come.

Any parent that is owed back child support should take aggressive measures to enforce the child support order. Making a non-paying parent stand before a judge and explain his or her failure to take care of his or her children is an uncomfortable thing for most parents. In many cases it is not a matter of ability to pay, it is a matter of motivation. With the proper motivation, many deadbeat parents begin working on the delinquency. Non-payment of child support is a serious matter with serious consequences that affect all of us. The answer to non-payment is not often going to be a court order prohibiting procreation (although it is not a bad idea). A better answer is more accountability and consequences. Aggressively enforcing your child support order with court action may be all the motivation your ex-needs to do the right thing.

Deadbeat Parents: How to Enforce Your Arizona Child Support Order

Posted on: January 16th, 2013 by Kevin Jensen

I read an interesting article the other day about a man named Corey Curtis in Wisconsin. Mr. Curtis is the father of nine children with six different mothers. According to the news article, Mr. Curtis owes almost $100,000 in back child support. The fact that Mr. Curtis has multiple children by multiple women and is not paying child support is not what made this story newsworthy. What made this article interesting is that the family court judge, exasperated by Mr. Curtis’ failure to take responsibility for his children by paying his child support, ordered, as a condition of his probation, that he not procreate until he can demonstrate to the court that he can provide for his children. Under Wisconsin law, this type of legal restriction is permissible.

The problem with deadbeat parents is a nationwide problem, including in Arizona. Here in Maricopa County, Sheriff Joe Arpaio conducts an annual deadbeat parent roundup. These sweeps are aimed to locate and arrest the parents (usually fathers) and criminals who are not providing court-ordered financial support for their children. Sheriff Arpaio points out that the purpose of his “Operation Don’t Be a Deadbeat” roundups is to send a message to parents to pay their child support. “As a Mesa Arizona criminal defense attorney this is one of Sheriff Joe’s programs I can support.” Says Mesa lawyer Dana Hogle

The failure for a parent to pay child support can impact all of us. According to a 2011 Census Bureau Report, more than $35 billion dollars in child support was owed nationally in 2009. Among the more than 6.9 million custodial parents who were awarded child support in 2009, only 41.2% received the amount that was due. 29.2% of custodial parents nationwide received none of the child support money they were due. The lack of payment to support these children naturally results in the need for more government programs to assist single parents who do not get consistent support. Other government resources, such as courts and child support enforcement agencies spend millions each year to track down deadbeat parents.

In my experience as an Arizona family law attorney practicing in Mesa and the East Valley, the best strategy to enforce the non-payment of child support is to be aggressive and consistent. State and federal laws make it a crime to not pay child support. Too many single parents, mostly mothers, simply do not have the ability or resources to try to enforce child support orders. One good resource in Arizona is to contact the child support enforcement division of the Arizona Department of Economic Security. AZDES has many resources to assist in the enforcement of child support orders. Among the remedies available to AZDES is to seize assets of a non-paying parent, placing liens on the property, intercepting lottery winnings, suspension, and revocation of drivers’ licenses and reporting non-payment to credit bureaus.

Another option is to hire an experienced Arizona family law attorney to file a child support enforcement petition and/or motion for contempt. An enforcement or contempt action is brought before a family court judge, usually, the judge that handled the original divorce. The process includes filing a petition and serving it on the non-paying party. The court then sets an Order to Show Cause hearing and requires the non-paying parent to come into court and explain why he or she is delinquent in paying their child support obligation and providing insurance. The court can impose any number of remedies under Arizona law, including garnishment, attachment, liens, etc. Status conferences on frequently set so the court can continue to track the progress of the non-paying parent. More significant remedies can be imposed, including jail and criminal charges for failure to pay child support. I frequently hear some individuals threaten to file bankruptcy on back-child support. This is an idle threat because child support is non-dischargeable in bankruptcy court. A child support arrearage never goes away and just keeps accruing interest for years and years to come.

Any parent that is owed back child support should take aggressive measures to enforce the child support order. Making a non-paying parent stand before a judge and explain his or her failure to take care of his or her children is an uncomfortable thing for most parents. In many cases it is not a matter of ability to pay, it is a matter of motivation. With the proper motivation, many deadbeat parents begin working on the delinquency. Non-payment of child support is a serious matter with serious consequences that affect all of us. The answer to non-payment is not often going to be a court order prohibiting procreation (although it is not a bad idea). A better answer is more accountability and consequences. Aggressively enforcing your child support order with court action may be all the motivation your ex-needs to do the right thing.

Attorney Sues Himself

Posted on: November 20th, 2012 by Kevin Jensen

I saw this and I couldn’t help but share: I hope you get a good laugh at this attorney.

 

 

Am I Entitled to Spousal Support in Arizona?

Posted on: November 15th, 2012 by Kevin Jensen

As a divorce attorney in Mesa AZ, an issue that frequently arises in an Arizona divorce case is whether one spouse is entitled to spousal maintenance (sometimes called Alimony) in Arizona. For many people, (in most cases the wife), divorce is not only an emotionally draining time period but a time of great uncertainty. One of the by-products of any divorce is the loss of income generated by the soon-to-be ex-spouse. Many wives/mothers are left wondering how they will make ends meet with the loss of income of their ex-spouse. In many cases, the wife is a stay-at-home mother with little or no education beyond a high-school diploma. Many women sacrifice a significant amount of time, money and effort supporting their husbands while they get their education and build their careers. They often sacrifice their own career ambitions to stay home and raise the children and support their husband’s careers. As a Mesa family law attorney, I have seen too many occasions when a divorce happens, the contribution of the wife in helping her husband get his education and build his career goes unrecognized and uncompensated. I have met with numerous women over the years who tearfully worry about what will happen to them after the divorce while their ex-husbands continue to earn good incomes as a result of the education and careers their ex-wives helped them build. While there are no easy answers to address these concerns in their entirety, there is some good news: Arizona law recognizes the need for ex-spouses to provide support in certain circumstances

In most cases, the amount of spousal support a spouse may receive may not be sufficient to completely support her (or him), it will often provide a reasonable supplement. The ex-wife will almost always need to find work to help support herself or to make up the difference. The spousal support may even provide enough of a cushion that the ex-wife can further her own education and work toward a profession of her own to better provide for herself. However, like any post-divorce support, it is rarely indefinite. Spousal support almost always ends when the spouse receiving support re-marries. Even if that does not occur, in most instances, spousal support will be for a definite period of time (typically a certain number of years). A wise recipient of spousal support will look for ways to better improve her (or his) situation so that when the spousal support ends, the spouse has a way to support herself.

Not every case in Arizona will result in a spousal maintenance award. Whether a spouse is entitled to receive spousal support payments after a divorce depends on a number of different factors under Arizona law. When determining whether a party qualifies for spousal support, the family court judge must consider the following factors found in A.R.S.25-319:

1. Does one spouse lack sufficient property to care for that spouse’s reasonable needs (this includes property awarded to that spouse as part of the divorce proceeding);

2. Does the spouse seeking support unable to be self-sufficient through employment, or the parent or custodian of a child whose age or condition is such that the spouse should not be required to seek employment outside the home or does the spouse seeking support lack the earning ability in the market to be self-sufficient;

3. What contribution did the spouse seeking support make to the educational opportunities of the other spouse (this does not include just financial contribution, but can include caring for children while one spouse went to school, caring for the home, etc.);

4. Was the marriage of long duration and/or is the spouse seeking the support of an age that may make it difficult to find adequate employment to be self-sufficient.

If the family court judge finds that any of the above factors apply, a spousal support award can be given. Next, the judge must consider how long the award should last and what amount of support should be awarded. The statute requires the judge to consider an amount and length of time as seems just without considering any marital misconduct that may have taken place. In making this determination, the court considers the following factors:

1. What was the standard of living during the marriage;

2. How long was the marriage;

3. The age, employment history, earning ability and the physical and emotional condition of the spouse seeking support;

4. The ability of the spouse who will pay support to meet that spouses needs while also meeting the needs of the spouse seeking support;

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.

As is probably obvious, whether or not a spouse is entitled to spousal maintenance is a fact-intensive analysis. A party seeking spousal support needs to make sure the attorney they hire knows how to aggressively pursue spousal maintenance for him or her by gathering the necessary evidence that addresses the factors discussed above. Spousal maintenance, unlike child support, is not determined by a set of guidelines and a calculator. An Arizona judge can award a spouse as much, or as little spousal support as seems reasonable given the factors outlined above. Likewise, a judge could find an award of spousal maintenance is not warranted.

One last word about spousal maintenance: I often have prospective clients who don’t want to pursue spousal support because they don’t want to be mean or difficult. Spousal support is really nothing more than a recognition of yourcontribution to the marriage. Just because you may not be the breadwinner in the family, you took care of the home and children and supported your spouse while he or she got their education and/or built his or her career. Your sacrifice and contribution should not be swept aside at the time of divorce. You supported your spouse as he or she built his or her career because that was your contribution to building the life you both wanted. Your spouse will get to continue to earn a living based in part, on your contribution. You deserve to be compensated for what you did to get him or her to where they are.

I Want to Leave Arizona, But Can I Take the Kids With Me? A Discussion About Arizona’s Relocation Statute.

Posted on: September 21st, 2012 by Kevin Jensen

Divorce and paternity cases are often very difficult and very emotional.  The most emotional and difficult issues in almost any divorce case, and certainly every paternity case are issues involving the children.  It has been my experience as a Mesa family law attorney, that both parents, no matter how much at odds they may be with each other, both love their children and want to do what he or she feels is best for them.  However, each parent’s idea of what is in the best interest of the child is often different and can lead to a great deal of contention.

I have observed over the years that once the emotion and difficulty of the divorce or paternity cases are over and the dust settles, life goes on for most people.  Over time, in many cases, the hard feelings that existed during the legal aspect of the case go away and most people find a way to tolerate each other and in many cases,s they get along rather well over time.  As life goes on for the parents, it is typical that one or both parents eventually find someone new in their life and re-marries.  As in any change in life, new relationships and some of the issues that come with them, often create new challenges that can impact the children.  In some instance,s the challenges that come with new relationships or other opportunities in life, such as work, can have a drastic impact on both the parents and the children.

A frequent challenge many former couples encounter; sometimes years after a divorce or paternity matter is resolved, is when one parent wants to relocate far from the other parent or even out of Arizona alltogether.  There may be a number of very good reasons for the proposed move.  In some cases, one parent may need the assistance of family members who are living out of state.  Another common reason for re-location is job opportunities that may arise for either a parent or his or her new spouse.  Regardless of the reason for the proposed move, the most obvious problem that arises when one parent wants to move far from the other parent is that the non-moving parent is likely to have his or her parenting time with the children reduced or significantly limited.  A drastic reduction in parenting time can be difficult and traumatic for both the non-moving parent and the children.

As a family law attorney, I have seen a parent who wishes to relocate his or her children more than 100 miles from the other parent must follow the procedure found in A.R.S. §25-408, Arizona’s relocation statute.  Under this relocation statute, if both parents are entitled to joint legal decision making or unsupervised parenting time and both parents reside in the State of Arizona, then, the parent who wishes to relocate must provide the non-moving parent sixty (60) days written notice before that parent will be allowed to: 1) relocate the child outside of the state or 2) relocate the child more than 100 miles within the state.

The written notice to the non-moving parent must be sent by certified mail return receipt requested.  This is very important because failure to follow this procedure exactly could result in a court invalidating the move because the moving parent failed to provide the non-moving parent proper notice of the prospective move that will surely impact his or her parenting time.  In fact, the Arizona legislature felt this notice requirement was so important that it authorized family court judges to sanction parents who do not comply with this notice requirement.

Once the moving parent has provided the required notification of the proposed move, the burden then shifts to the non-moving parent to take action, if he or she so desires.  According to the statute, the non-moving parent has thirty (30) days, after receiving the written notice as discussed above, to file a petition with the family court to prevent the relocation of the child.  This is an extremely important deadline.  A parent who files his or her petition after the thirty (30) day deadline has passed will only be able to prevent the relocation of the child by demonstrating to the court his or her reason for failing to timely file his or her petition to prevent the relocation.  This can often be a very difficult burden to meet.

If the non-moving parent does file a petition to prevent the relocation within the time allowed under the statute, the Arizona family law judge will set an evidentiary hearing (often many months after the petition is filed) to determine whether or not to allow the children to be relocated.  In some limited circumstances, a family court judge may allow a temporary relocation until the evidentiary hearing can be held.

When determining whether or not to allow one parent to relocate children out-of-state or more than 100 miles within the state, the judge must determine, as in any issue involving children, whether allowing the child to relocate is in the child’s best interest.  The parent who is seeking to move has the responsibility to provide evidence to the family court judge that the relocation is in the child’s best interest.  This evidence may include such factors as the age of the child, which parent the child/children have primarily lived with, where the children will be most comfortable living and even the child’s desires.  The family law court must also, where practicable, consider appropriate arrangements to ensure the continuation of a meaningful relationship between the child and both parents.

What is in the child’s best interest and how to ensure the continuation of a meaningful relationship between the child and both parents is what makes relocation cases so very complicated.   The distance between the child and non-moving parent is a very difficult bridge to gap.   A court can absolutely determine that allowing the moving parent to relocate with the children would not be in the children’s best interest and may prohibit the moving parent from relocating the children.  In other instances, depending on the specific circumstances of the case, the relocation is allowed and the court will try to create a parenting plan that will allow as much frequent and meaningful parenting time for the non-moving parent as possible.  This can include such things as increased parenting time during summer or other holiday vacations for the non-moving parent and a requirement that the moving parent share in the travel expenses related to the non-moving parent exercising parenting time.

Relocation with children can be very complicated.  Because there really is no middle ground in most cases the losing party can be deeply impacted and old wounds can be reopened.  A decision to move out of Arizona or more than 100 miles from another parent should not be taken lightly.  Because of the complicated issues involving relocation, consulting with an experienced Arizona family law attorney is very important.

Legal Custody in Arizona — Who Gets to Decide?

Posted on: August 28th, 2012 by Kevin Jensen

One of the most frequent questions I get as a Mesa Family Law Attorney is: can I get full or sole custody of my child or children?  It is my experience that many clients going through a divorce don’t entirely understand what legal custody is.  It is not uncommon for a client going through a difficult divorce to tell me that he or she wants the minor child or children to be with him or her the majority of the time… “I want full custody!”

The truth is, it is not an easy thing to get full or “sole custody” of a minor child in Arizona.  What I think most of my clients really want and are asking for, is for the court to award him or her, the majority of the parenting time with the child or children.  There is a big difference between legal custody and parenting time.  It is important to understand that, except for in specific circumstances, it is unlikely an Arizona family law judge will award one parent sole custody of a child.  It is not uncommon, however, for a judge to award one parent more parenting time than the other.  As in all cases, the specific circumstances of the case really do dictate what a family law judge may decide regarding these two very important issues.

Legal custody is really the ability of the parent or parents to make decisions regarding their minor child or children.  These decisions include such things as educational decisions; religious decisions and medical decisions.  A parent who is awarded sole custody of a child will have the legal authority to make all of these decisions on behalf of their child without input from the other parent.  Because sole custody deprives one parent of the ability to make decisions about his or her child, it is not taken lightly.  Almost every Arizona family court judge I have appeared before has shown a preference for a child to have both parents as actively involved as possible in their children’s lives.  For this reason, most Arizona family law courts will award parents joint legal custody.  This requires the parents to continue to make these important decisions jointly on behalf of their children.

When deciding legal custody or legal decision-making, Arizona family law judges are required to consider a number of factors.   These factors are found in A.R.S. 25-403 and include the following:

  • The relationship between the parent and child, past, present and future.
  • How the child interacts with each parent and the interrelationship of the child with other siblings or any other person (such as a grandparent) who affect the child’s best interest.
  • How the child adjusts to home, a school or a community.
  • The wishes of the child, if the child is of suitable age and maturity.
  • The mental and physical health of all individuals involved.
  • Which parent is the most likely to allow ongoing and meaningful contact with the other parent? ( Note that the court will not apply this factor if the court finds that one parent, in good faith, is trying to keep the child from a domestic violence or abuse situation)
  • Whether one parent tries to mislead the court or intentionally delay the proceedings to unnecessarily increase litigation costs.
  • Whether there has been domestic violence or child abuse.
  • Whether one party has used coercion or duress to obtain an agreement from the other parent.
  • Whether a parent was convicted of a false act of child abuse or neglect

Each of the factors must be carefully considered by the judge before making a decision regarding both custody (legal decision making) and parenting time.  In weighing each of these factors, the court must always consider what is in the best interest of the child.  The complexity of these factors makes custody fights some of the most difficult and emotional issues in any Mesa Arizona child custody case.  Because of the difficulty of this issue, having an experienced family law attorney in your corner can make all the difference.

I have long held the belief that knowledge is power in family law cases.  Clients who have an understanding of what the courts must consider before making these difficult and important decisions always have a leg up in the case.  This knowledge eliminates a lot of the fear and uncertainty and helps the client to focus on what is really important.  When it comes to issues involving custody, this approach may be the most important part of any case.

 

If you have any questions about a Child Custody case in Mesa, AZ Please give my office a call.

The Law Offices of Kevin Jensen

Family Law Attorney Mesa AZ

3740 E. Southern Ave.

Suite 210 Mesa, AZ 85206

Phone: (480) 999-2321

 

Talking About Children Before Marriage May Decrease Chance of Future Divorce

Posted on: August 21st, 2012 by Kevin Jensen

Mesa Arizona Divorce Attorney

For many couples children are the source of the greatest joy and happiness in their marriages. They can also be the source of the most pain. When a couple decides to divorce, children related matters such as custody, visitation and child support are often the most hotly contested issues in the divorce. The creation of children is the ultimate symbol of the love couples share for one another. However, can the failure to get on the same page regarding children before getting married increase the chances of a couple later getting a divorce, and this is no different with divorce in Mesa, AZ? Some family law attorneys and therapists think so.

In a recent Washington Post Article family law lawyers and therapists were asked how the failure to discuss the issue of children prior to marriage can impact the marriage. One family law attorney suggested that “talking about [whether or not to have children], at the very least, is a good idea before the rings are on.” As a family law attorney in Mesa, Arizona with more than a decade of experience, I have seen many couples struggle with this issue. One the problems that can arise when a couple does not see eye to eye on the issue of having children is that one spouse may resent the other for denying him or her something that is so important. On the other side of the coin, a spouse who is pressured into having a child or children may feel resentful toward his or her spouse this can be devastating to the marriage and the child.

There are many reasons some people do not want children. The financial commitment related to raising children is one of the biggest concerns. The cost of raising a child goes up every year. According to a recent U.S. Department of Agriculture report, a middle income family with a child born in 2011 will spend approximately $234,900 for food, shelter and other necessities to raise a child over 17 years. This amount will continue to rise.

The key to avoiding potential conflict on this issue is to communicate about the issue of children before marriage. Ramani Durvasula, a Los Angeles psychologist states that “being clear on parenting desires is crucial heading into marriage.” According to Dr. Durvasula, failure to discuss the issue of children prior to marriage “can actually be a backbreaking challenge for a relationship because of the high potential for ‘unfixable regret.’”

A successful marriage is the result of hard work, compromise and perhaps most of all good communication. Couples may increase their chances of living happily ever after by openly and honestly communicating about their desires regarding children before they ever say “I do.”

If you have questions about any Family Law Related issues in Mesa, AZ I invite you to contact my office:

The Law Offices of Kevin JensenFamily Law Attorney Mesa AZ

3740 E. Southern Ave.

Suite 210 Mesa, AZ 85206

Phone: (480) 999-2321

Divorce Can Destroy You At Tax Time

Posted on: July 23rd, 2012 by Kevin Jensen

We found this article at dailyfinance and thought that we would share it and give our thoughts.

 

Divorce is one of the hardest things you may ever go through — both emotionally and financially. But while you’re focused on your now-adversarial relationship with your ex, you shouldn’t forget to keep an eye on another entity that may be after a larger chunk of your assets thanks to your split: The IRS. Turns out, divorce has a huge impact on your taxes, and knowing what’s at stake can help you avoid major complications later on.

Here are some of the things to keep in mind as you go through the divorce process.

Filing Status

Checking the box for either married or single may seem like the simplest thing in the world, but it gets complicated with divorce. The IRS wants to know your legal marital status as of the end of the year you’re filing for. So even if you’ve filed your paperwork, if your divorce isn’t final by Dec. 31, then you’ll be considered married for the year.

However, there’s an exception that allows separated parents to claim the favorable head of household status, which gives you greater deductions. To qualify, you must have paid more than half your housing costs for the year, lived apart from your spouse during the last six months of the tax year, and your dependent child must have lived in your home for more than half the year.

Exemptions for Children

The question of who gets to claim exemptions for children can make a huge difference to your tax bill. Typically, the test depends on which parent the child lives with for more than half the year. But divorced or separated couples can essentially pick who gets the exemption for children by signing a written declaration. With the current write-off at $3,700 per child, the decision you make can determine which of you will get up to $1,300 in tax savings.

Alimony, Maintenance, and Child Support

Payments between former spouses under a divorce decree fall into different categories. Cash payments that qualify as alimony are deductible by the person who makes them and are counted as income for the person who receives them. But you can generally agree to reverse that treatment and avoid any tax consequences for payments if you prefer.

Child support, on the other hand, isn’t deductible by the payer or counted as income by the recipient or the child. So as you describe certain payments in your divorce agreement, be careful because the description can change the way those payments get taxed.

Retirement Accounts

As part of a property settlement, a spouse may be entitled to part of the other spouse’s IRAs or employer-sponsored retirement account. For 401(k)s and other employer plans, a qualified domestic relations order can allow you to get benefits from a spouse’s plan and treat them as if they’re your own, thereby avoiding potentially disastrous tax consequences. Under certain circumstances, you may be able to roll 401(k) money into an IRA of your own.

Property Transfers

In general, neither spouse will realize any capital gain or loss or other tax consequences from receiving or giving up property in a divorce decree. But if you later sell property that you received due to divorce, you’ll then have to pay taxes on gains, based on the original tax basis of the property you received.

To be treated as part of the divorce, a property transfer must be complete within a year of the date the marriage legally ended, unless it was specifically provided for under the divorce agreement. In that case, you have up to six years to make transfers, although later ones may still be valid if you can show valid reasons for the delay.

Community Property

Finally, most states treat each spouse’s income as his or her own, even when it’s jointly reported on a tax return. But in community property states, which include Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin, different rules may apply. As a result, you may be treated as having earned part of your former spouse’s income during the year in which you divorce.

Source: http://www.dailyfinance.com/2012/07/23/dont-let-divorce-destroy-you-at-tax-time/

 

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