Archive for the ‘General’ Category

Why Do I Need A Lawyer for My Uncontested Divorce?

Posted on: May 24th, 2013 by Kevin Jensen

I frequently provide a free thirty minute consultation to individuals who are contemplating getting a divorce in Mesa AZ. Many of my consultations involve individuals who believe their spouse will agree on everthing and that the divorce will be uncontested. Most people who think their case will be uncontested usually ask the question “do I even need a lawyer for this divorce?”

In most cases, the answer is yes! You are probably thinking “what do you expect a lawyer to say!” However, most divorce cases are not as simple as they might seem on the surface. There are some divorces that probably don’t need a lawyer. These are usually cases where the parties have been married for a short amount of time, do not have any minor children together and have accumulated few, if any assets or debts. In that particular circumstance, because there is so little to divide or argue about the couple can probably get a divorce without an attorney’s assistance. These types of cases are frankly few and far between.

A more typical scenario is a case where the parties have been married five years or more, have one or more minor children and have purchased a house and/or have some substantial debts or assets that need to be divided. These types of cases include a number of potentially complicated legal issues that require a family lawyer’s expertise to properly navigate. Regardless of whether your divorce is contested or uncontested, you should always have an criminal defense attorney mesa az when dealing when your case involves the typical scenario described above and especially when the case involves minor children.

An uncontested divorce is one where you and your spouse have reached an agreement on all of the issues in the case and you submit a Consent Decree (settlement agreement) to the judge to sign. This is the preferable way to resolve any divorce case. An uncontested divorce can be finalized in a matter of a couple of months and both parties get to have a say in the outcome of the divorce instead of letting a judge decide for them. However, even if you and your soon-to-be ex-spouse agree on every issue in your case you should still involve a lawyer for a few reasons.

First, an experienced family lawyer can point out legal issues you may not have even considered. One of the primary reasons you settle your case is to avoid having to ever go to court. An experienced family law attorney will help point out typical issues that arise in many divorce cases so you can come up with a long-term plan to avoid disputes down the road. This is especially important in any case involving children.

Second, At a minimum, you will need a lawyer to make sure your settlement is documented correctly. There are free forms that are provided by the court that many people use when they do not use a lawyer. These are simplified forms that do not include many of the issues that experienced family law attorneys address when drafting settlement documents. The common result of drafting your own settlemnt is future return visits to court to address issues that were not properly addressed at the time of the divorce. I have had many cases where parties have hired me after the divorce to help address issues that could have been resolved when the parties were initially divorced and that probably would have been addressed had they hired a lawyer.

Finally, even if you think you can settle your case without the assistance of a lawyer, it may be well worth your while and expense to at least have an experienced family law attorney review your settlement before you submit it to the court. There are some people who try to take advantage of their spouses in divorces. I have had some very sad cases where one spouse has convinced the other to do a quick settlement just to “get it over with” or “so we don’t drag this out.” While that may sound like a good idea, oftentimes there may be an ulterior motive. I have had cases where some spouses signed away their rights to compensation for businesses, or retirement accounts or spousal maintenance. In other words, they agree to a very one-sided settlement. In most cases once a settlement is reached and the judge signs off on the settlement, it is too late. Some people think that the family court judge will look out for them. That may be true when it comes to issues involving minor children, but rarely any other types of issues. Most judges will sign off on any agreement that is put in front of them. The majority of family court judges will take the very reasonable position that the parties know best and will not upset an agreement they have reached on their own. A family law attorney can point out pitfalls in your agreement. At a minimum, you will at least be educated and understand what you may be signing away. You may even decide to hire the lawyer to represent you for the rest of the case to assure you are not being taken advantage of.

There is an old saying that says an ounce of prevention is worth a pound of cure. In other words, spending a little money now may save you a lot of money later on. In an uncontested divorce case, spending a little money at the time of the divorce to make sure it is done correctly and documented correctly may allow you to get your divorce much more quickly and, more importantly, may save you thousands of dollars in future litigation.

Am I Entitled to Spousal Support in Arizona?

Posted on: November 15th, 2012 by Kevin Jensen

An issue that frequently arises in any 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 meets 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 career. They often sacrifice their own career ambitions to stay home and raise the children and support their husband’s career. 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-hsubands 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 supplment. The ex-wife will almost always needs 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 recepient 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 selfsufficient;

3. What contribution did the spouse seeking support make to the education 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 a long duration and/or is the spouse seeking 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 maintence for him or her by gathering the necessary evidence that address 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 bread winner 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.

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 make 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

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