Recent Blog Posts

Alimony and Social Security

Phoenix Divorce Lawyer — Tue, 31 Jan 2012 04:25:00 GMT

In a divorce case where spousal support is ordered, how are Social Security benefits addressed? The Arizona Court of Appeals addressed this issue in Leathers v. Leathers, a 2007 case.

A federal statute, 42 U.S.C. § 407(a), prohibits the transfer or assignment of rights to Social Security. So it can't be garnished, like wages can be, and it can't be divided in the property division as community property, the way a pension ordinarily can be. See generally Kohler v. Kohler, a Court of Appeals 2005 case.

In Leathers, though, the trial court ordered the husband to pay the wife, as indefinite spousal maintenance, one-half of the value of any Social Security benefits that he received in the future. The husband argued that such an order is either an illegal attachment of his federal old age pension or an illegal award of Social Security as community property. But the Court of Appeals disagreed.

The trial court had ordered indefinite spousal maintenance. Because the exact amount of husband's eventual income Social Security was unknown at trial, the trial court ordered half of the amount husband received to be the amount of maintenance. But the trial court specifically awarded the "value of one half" rather than attaching the husband's Social Security itself. Therefore, the Court said, the award was legal.

However, the Court of Appeals said that to ensure an equitable award, a trial court must take into consideration that the wife would likewise be drawing Social Security benefits in her own name. It was not clear that the trial court in Leathers had done that. So for that reason (among others), the Court of Appeals sent the case back for further consideration.

The Leathers case illustrates why it is vitally important to have a hard fighting, straight talking Phoenix divorce lawyer in your corner if you are facing divorce, spousal maintenance, property division, child support, or child custody issues. So contact us right away for a free consultation.

Alimony: "Romantic Cohabitation"

Phoenix Divorce Lawyer — Mon, 30 Jan 2012 00:20:00 GMT

Unless otherwise specified, spousal maintenance lasts until one party dies or the dependent spouse remarries. Sometimes, the dependent spouse--typically the wife--will cohabitate with someone rather than marrying him, simply to preserve spousal mantenance. The 2010 case of Chopin v. Chopin illustrates the difficulty this poses.

The parties had specified in their spousal maintenance agreement that spousal support would terminate immediately upon the wife’s remarriage or "romantic cohabitation." But what did that phrase mean? The Court of Appeals decided that it meant living together and behaving as a married couple. Although the ex-wife and her fiancé were formally engaged, they each maintained separate residences and never lived together, and because they were not living together, the Court of Appeals found they were not “romantically cohabitating,” within meaning of the spousal maintenance agreement. Further, the Court of Appeals concluded that the ex-wife’s fiancé spent one out of every six days at ex-wife’s house, he did not keep clothing at her house and, at best, he was a guest at her house about once a week. Therefore, the Court held that the trial court erred in terminating the ex-wife’s spousal maintenance.

Obviously, if you are facing divorce, spousal maintenance, child support, or child custody issues in the Phoenix metro area, you need an aggressive Phoenix divorce lawyer fighting for you. Contact us right away for a free consultation.

Alimony: Termination of the Award

Phoenix Divorce Lawyer — Sat, 28 Jan 2012 10:30:00 GMT

How long must you pay alimony/spousal support? Forever, if you are not careful. Much less, if you have a good lawyer.

Under proper circumstances, future maintenance payments may be terminated by court order
or by certain events, or after a given length of time. Under a 1973 law, unless otherwise agreed in writing or expressly provided in the decree, the obligation to pay future maintenance is terminated upon the death of either party or the remarriage of the party receiving maintenance.

Arizona courts have had difficulties with modification of maintenance awards specifying periodic installments for a limited time. In a case decided before the 1973 law, the Arizona Supreme Court had held that an award of $75 per month for six months was a lump sum award and was not subject to modification. After the 1973 law, Division Two of the Court of Appeals ruled that all future maintenance payments, both periodic and lump sum, are subject to termination and modification unless otherwise stated. On the other hand, post-1973 Division One cases have adhered to the previous Supreme Court position that awards of fixed installments for a fixed period are not terminable or modifiable in the absence of an express provision therefor. To further complicate the matter, a 1987 law provides that the court maintains continuing jurisdiction over the issue of maintenance for the period of time maintenance is awarded. It seems likely that the Legislature intended this provision to adopt the Division Two position--otherwise, there would not be much point in it.

The annulment of a second marriage which terminated spousal maintenance from the first marriage does not revive maintenance frm the first spouse.

Under the Maricopa County advisory guidelines, the duration of the award is calculated by applying a factor of 0.3 and 0.5 to the length of marriage to determine the range of the duration of the award. So if the couple was married for 15 years, the guidelines suggest an award lasts anywhere from 4.5 to 7.5 years.

Alimony: The Maricopa County Guidelines

Phoenix Divorce Lawyer — Fri, 27 Jan 2012 21:40:00 GMT

Arizona has statewide guidelines for child support, partly because federal law requires us to. But federal law requires no spousal maintenance guidelines. Maricopa County, though, enacted spousal maintenance guidelines in 2000; they were subsequently reviewed and re-approved in 2002. These guidelines contain a mathematical formula for calculating spousal maintenance. However, as the guidelines state, the "do not change or create public policy." They also do not constitute a presumption nor are they intended "to replace the trial court’s obligation to consider specific evidence as well as all applicable statutory factors." The guidelines are simply intended to be a starting point for determining spousal support, by providing helpful examples as well as references to relevant statutes and caselaw.

The Guidelines, which have never been officially adopted by court rule, provide a method of calculating the amount and duration of a spousal maintenance award by way of a formula derived from an historical review of randomly selected prior spousal maintenance awards. They have been used by family law attorneys as a useful estimate of the possible spousal maintenance award in a given case and, indeed, some Maricopa County Superior Court judges have incorporated them into their spousal maintenance awards. The formula is calculated by taking the difference between each spouse’s gross monthly income and multiplying that result by a factor of .015, then multiplied by the years of marriage. For example, suppose husband and wife have been married for 15 years. If the husband earns $5,000.00 gross per month and the wife earns $1,500.00 per month, the difference of $3,500.00 is multiplied by .015 and then by 15 (years) , then under the Guidelines calculation, and assuming the relevant statutory factors for an award of spousal maintenance are met, wife would be entitled to an award of $787.50 per month. The duration of that award is then calculated by applying a factor of 0.3 and 0.5 to the length of marriage to determine the range of the duration of the award, in this case from 4.5 to 7.5 years.

In considering the income of the spouses, the Guidelines state that non-obligatory deductions and fringe benefits enjoyed by the spouse should be considered in determining ability to pay. Such things as employer-furnished auto, meal-expense reimbursement, and the like, should be considered. Consideration should also be given to benefits available to the receiving spouse, as for example, where the receiving spouse retains the family residence which has a monthly payment far below the average monthly payments in the area.

The Guidelines are not intended as a guide in determining temporary (i.e. pendente lite) spousal maintenance. It is the policy of the court to recognize that, under Arizona law, community property rights do not terminate until the entry of the final decree of dissolution. Generally speaking, community income earned during the pendente lite state of the proceedings-and the obligation to pay community debts pendente lite-should be divided equally. While each case may be different, a spouse who is capable of employment has an obligation to seek and become employed.

The Guidelines also provide that the supporting spouse shall not be required to pay more than one-half of his or her net income as child support and maintenance, on the theory that requiring payment of more than one-half of a spouse’s net income would remove that spouse’s incentive to work.

These Guidelines were the subject of a 2006 Court of Appeals case. In Cullum v. Cullum, the husband appealed from a superior court order awarding his wife spousal maintenance in the amount of $500 per month for 72 months. On appeal, the husband argued that the superior court erred in awarding his wife spousal maintenance. He also argued that the court did not consider the relevant factors for the amount and duration of the spousal maintenance pursuant to A.R.S. § 25-319(B), but instead relied upon the Guidelines. The Court of Appeals first determined that the wife was entitled to an award of maintenance on the basis of several statutory factors. Specifically, the wife was working on obtaining her master’s degree, she needed more education in order to increase her income, she was the primary care-giver of the children, she did not work full-time outside of the home for many years during the marriage, and her expenses exceeded her income. The Court of Appeals further found that the superior court did not abuse its discretion when it used the Guidelines to determine the wife’s maintenance award. The Court reasoned that the Guidelines allowed the court to consider the evidence and the statutory factors, and they established the general principles of spousal maintenance. Therefore, the superior court reviewed the statutory factors for awarding maintenance and then used the Guidelines to calculate the duration and amount of the maintenance. The Court said this was perfectly fine.

Yet the Guidelines have never been uniformly applied by judges and as a practical matter seem to have lost much of their significance in the maintenance analysis. In the 2007 case of Leathers v. Leathers, the Court of Appeals said that the trial court does not have to consider the Guidelines at all if it does not want to. That means it is unlikely that maintenance orders coming from the bench will ever be consistent and predictable. Which in turn means that it is vitally important that you have a knowledgeable and experienced attorney in your corner.

The 2010 case of Ramsay v. Ramsay illustrates this point. There, the husband contended on an appeal of a spousal support award that the trial court erred because it's award was significantly more than what would have been awarded under the Guideline formula. The appellate court disagreed with the husband:

"There are no legally authoritative 'guidelines' governing spousal maintenance in Maricopa County or any other Arizona county. A.R.S. § 25-319(B) vests the trial court with broad discretion to determine the amount and duration of spousal maintenance awards after due consideration of the factors that the Legislature articulated. The statute does not direct the court to refer to any set of guidelines, and the court's disregard of any such informal reference materials cannot give rise to a finding of abuse of discretion."

In Ramsay, the Court of Appeals held that since the family court properly considered the 13 statutory factors as required, the award was proper, even when the Guidelines provide a significantly different result.

Alimony: Enforcement

Phoenix Divorce Lawyer — Thu, 26 Jan 2012 18:15:00 GMT

How is an award of alimony enforced? Once again, it pays to have an aggressive and knowledgeable attorney on your side.

First of all, the award of spousal maintenance needs to be in the decree. That way, it's a court order. Language in the decree for spousal support directly commands the defendant to pay, whereas an agreement not included in the decree merely results in an ordinary judgment for money.

The words “support and maintenance” do not necessarily have be used in the decree. But the order should clearly and separately specify child support vs. spousal maintenance.

The court may order that maintenance payments be made to the clerk of the court. By special order, a court can impose a lien on the paying spouse’s separate property or on the community property awarded to that spouse to secure payment of maintenance. The court may not require the husband to post a bond to discharge the maintenance payments. Some courts have ordered trusts to secure alimony payments. Voluntary payments of the dependent spouse’s health care bills will be considered gifts and cannot be credited against maintenance, unless the dependent spouse consents.

A.R.S. § 25-551 permits the clerk of court to provide services to assist a person to collect spousal maintenance. These services initially include, among other things, providing information on collection and enforcement procedures, assistance in the preparation of documents and instructions on how to initiate an enforcement action. The clerk of court may also intercept a taxpayer’s state income tax refund for collection purposes.

The superior court maintains jurisdiction to establish, enforce or modify spousal maintenance. Such legal actions have priority over all other civil actions, except for child support actions or judicial authorizations.

The deadline to file a request for a judgment for spousal maintenance arrearages is not later than three years after the date the spousal maintenance order terminates. There is no bar to establishing a money judgment for all of the unpaid spousal maintenance arrearages. Judgments for spousal maintenance and for associated costs and attorney’s fees are exempt from renewal and are enforceable until paid in full.
It is now a class 1 misdemeanor to willfully and without lawful excuse fail to comply with the terms of a spousal maintenance order.

New amendments to A.R.S. § 33-1103 eliminate the homestead exemption when a judgment lien is in place because of unpaid child support or spousal maintenance payments. However, alimony only constitutes a lien when the debt is recorded as a judgment by the dependent spouse, or the court assigns a specific security interest of the property for alimony. At a contempt proceeding for not paying alimony, a court may consider payment of the unpaid child support or spousal maintenance with homestead monies.

Alimony: The Factors

Phoenix Divorce Lawyer — Thu, 26 Jan 2012 03:35:00 GMT

Once the court finds the existence of one or more of the four statutory reasons for awarding alimony (spousal maintenance), the amount and duration of spousal support is left to the "sound discretion" of the court. This is a tough standard to overturn on appeal, which is why you need a knowledgeable attorney helping you from the beginning. The court must consider all relevant factors, including:

1. The standard of living established during the marriage.

2. The duration of the marriage.

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

4. The ability of the spouse from whom maintenance is sought to meet his or her needs while meeting those of the spouse seeking maintenance.

5. The comparative financial resources of the spouses, including their comparative earning abilities in the labor market.

6. The contribution of the spouse seeking maintenance to the earning ability of the other
spouse.

7. The extent to which the spouse seeking maintenance has reduced his or her 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 such party, and such party’s ability to meet his or her 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 seeking maintenance to obtain health insurance and the reduction in the cost of health insurance in the event the spouse from whom maintenance is sought is able to convert family health insurance to employee health insurance after the marriage is dissolved.

13. Actual damages and judgments from conduct that resulted in a criminal conviction of either spouse in which the other spouse or a child was a victim.

The court maintains continuing jurisdiction over the issue of maintenance for the duration of the award. This means the court can modify the award if the court determines it is appropriate to do so; it also means the court can enforce the decree.

In a 1974 case the Court of Appeals stated: "While the length of the marriage is an important consideration, its importance stems from two underlying and related considerations: The contribution of the spouse to be supported and judicial resistance to awarding spousal maintenance to a 'gold-digger.'"

The court may consider a spouse’s misrepresentation as to income as well as the parties’ standard of living established during marriage in determining the amount of maintenance. The financial needs of a wife can be measured by the social position into which the marriage has placed her. But a wife is not entitled to be kept in a style to which she is accustomed if it is beyond the means of the parties. Nor is a spouse entitled to support above his or her usual standard of living.

Marital fault or misconduct can only be considered to the extent that there have been excessive or abnormal expenditures, destruction, concealment, or fraudulent disposition of marital property.

Nationally courts are divided on the validity of basing support payments on future salary increases. Arizona has indicated that such escalator clauses are improper.

Alimony: The Basics

Phoenix Divorce Lawyer — Wed, 25 Jan 2012 02:55:00 GMT

In a divorce case, the court is authorized to order spousal support for either spouse. Most people use the term "alimony," but Arizona law uses the phrase, "spousal maintenance" instead. Either spouse can be required to pay maintenance.

The parties may agree in writing as to maintenance, subject to a finding by the court that the maintenance agreement is not unfair. In the absence of an agreement, the court has authority to award maintenance in an appropriate case in such amounts and for such periods of time as it deems just. The court will NOT take marital misconduct into consideration, except damages and judgments from conduct that resulted in a criminal conviction of either spouse in which the other spouse or a child was a victim. But the court will consider a variety of other relevant factors.

A valid maintenance award requires a valid marriage and a valid divorce decree--Arizona courts do not award "palimony."

By statute, maintenance may be awarded to a spouse meets any one of the following conditions:

1. The spouse acks sufficient property, including property apportioned to such by the divorce decree, to provide for his or her reasonable needs, or

2. The spouse is unable to be self-sufficient through appropriate employment or is the custodian of a child whose age or condition is such that the custodian should not be required to seek employment outside the home or lacks earning ability in the labor market adequate to be self-sufficient, or

3. The spouse contributed to the educational opportunities of the other spouse, or

4. The marriage was of long duration and the spous is of an age which may preclude the possibility of gaining employment adequate to be self-sufficient.

Determination of the need (or now other new statutory reason) for maintenance is in the discretion of the trial court. Maintenance may be awarded for any of the reasons listed above. The duty to provide support is not satisfied because the other spouse is being cared for by a child. An obligation to pay spousal maintenance cannot be avoided by voluntarily reducing the ability to pay.

Prior to the 1987 changes in the maintenance statute, the spouse requesting support had to establish lack of sufficient property to provide for his or her reasonable needs and inability to support himself or herself. Under the 1987 changes, the Court of Appeals stated that the purpose of the statute delineating the standards for awarding spousal maintenance was to encourage the court to provide for the financial needs of spouses by property division rather than by the award of maintenance.

Unless otherwise agreed in writing or expressly provided in the decree, the obligation to pay future maintenance continues until either the death of either party or the remarriage of the party receiving maintenance.

A court cannot reject a prenuptial waiver of spousal maintenance unless the court inquires into the circumstances of the agreement and finds that there was some sort of problem with the formation of the agreement (which is a topic unto itself).

In 2002, the Legislature slightly amended the reasons a court may award maintenance. Specifically, the Legislature chose the term to be self-sufficient"; previously, the statutory language was "to support him or herself". There were cases under the prior language holding that a spouse can be awarded maintenance without showing a total inability to support him-or-herself. The appellate courts have not ruled on whether the 2002 amendment changes this. Generally speaking, however, the courts assume that a statutory amendment was intended to make some sort of difference.

When determining an award of spousal maintenance, the court must not consider any federal disability benefits awarded to the other spouse for service-connected disabilities when determining whether to award spousal maintenance or the amount of any award of spousal maintenance.

Divorce, child support, and child custody cases can be very traumatic. Don't go it alone; get a hard fighting, straight talking, agressive Phoenix divorce attorney on your side. Contact us for a free consultation

The Automatic Prelminary Injunction

Phoenix Divorce Lawyer — Sun, 15 Jan 2012 01:25:00 GMT

In an Arizona divorce, several matters are handled prior to the hearing on the divorce petition by a preliminary injunction and temporary orders. A preliminary injunction is issued by the superior court clerk against both parties in every action for dissolution of marriage or for legal separation upon filing the petition. It enjoins (prohibits) each party from domestic violence or harrassment against the other party or the children, disposing of any property (except in the usual course of business or for necessities of life), or taking the children from Arizona. The latter two actions can be taken with prior written consent of the parties or the permission of the court. The injunction against disposing of assets helps insure that a fair property division can be made.

The preliminary injunction is issued automatically, whether requested or not.

The petitioner is deemed to have actual notice of the preliminary injunction by filing the action, so it is effective against the petitioner once the petition is filed. It isn't effective against the respondent until the respondent is served with a copy of the order. The order is usually served upon the respondent with a copy of the summons and petition. When service is by registered mail, the injunction is effective when received by the respondent.

The injunction remains in effect until the court changes or revokes it, or until a final decree is entered or until the action is dismissed. The provisions of the injunction do not prejudice the rights of any child or of the parties at a later hearing.

The automatic preliminary injunction has the force and effect of an order signed by the judge. So it is enforceable by all available remedies, including contempt. If either party disobeys any provision of the official order, he or she may be arrested and prosecuted for the crime of interfering with judicial proceedings. Either party may file a certified copy of the preliminary injunction with the local law enforcement agency.

If you are facing a divorce, child custody, or child support action in the Phoenix area, you need an experienced and aggressive Phoenix divorce lawyer on your side. So contact us right away for a free consultation.

Separation Agreements--Merger and Enforcement

Phoenix Divorce Lawyer — Tue, 13 Dec 2011 14:55:00 GMT

property divisionIn a divorce action, the separation agreement is usually merged into the Court's dissolution decree. That means the terms of the agreement are set forth in the decree, and become a court order. This is called a merger . At that point, your obligations are no longer contractual obligations imposed by the separation agreement; your obligations are now to the Court, to obey its order. This means the judge can hold you in contempt for not following the decree, which means fines and even jail. That can be very useful if the decree calls for your ex fails to pay certain debts as obligated by the decree; your ex is now answerable to the judge.

When merger occurs, the separation agreement is then superseded by the court decree. Consequently, a contractual provision that is set out in the separation agreement but not in the decree is superseded. Once the separation agreement has been merged into and become part of the court's decree, property division provisions cannot be modified.

Merger is not mandatory; sometimes the parties wish to keep the terms of their agreement private, and may therefore not want them set out in the decree (which is a public record). The decree may reference the agreement without disclosing its terms. This is not a merger. Accordingly, if the separation agreement is violated, a contract lawsuit must be brought; enforcement by contempt is not available.

If you are facing divorce, child custody, child support, visitation, property division, or other issues, you need a hard fighting, straight talking Phoenix divorce lawyer on your side. So contact us today for a free consultation.

Separation Agreements

Phoenix Divorce Lawyer — Tue, 13 Dec 2011 04:10:00 GMT

Arizona encourages amicable settlement of marital disputes. A.R.S. 25-317A authorizes separation agreements by spouses anticipating separation or divorce (which in Arizona is called dissolution of marriage). The written agreement may make provision for child custody, visitation (i.e. parenting time), child support, spousal maintenance (i.e. alimony), and property division. The agreement as to maintenance and property division are binding upon the Court, unless the Court finds the agreement to be unfair or inequitable; the Court has a statutory duty to impose a property division that is fair and equitable.

In most such agreements there are actually two agreements. First, there is the separation agreement, which deals with child custody and support, as well as alimony. Second, there is is the property settlement, which address the division of marital assets and liabilities.

Separation agreements can be drafted even if the parties only intend to separate, not divorce. If the parties intend to divorce, the separation agreement may be made either before or after the action is filed. As long as the agreement does not tend to induce divorce or separation, it is enforceable even if no divorce is contemplated. But the Court will refuse to enforce any agreement if there was fraud or undue influence.

It is a good idea to record either the agreement and/or the divorce decree incorporating its terms be recorded in each county in which real property affected by the agreement is located. Notarization allows the agreement to be recorded, and permits it to be admitte4d into evidence.

If you are facing these issues in Maricopa County, you need a hard fighting, straight talking Phoenix divorce lawyer on your side. So contact us today for a free consultation.

Military Divorce and the Survivor Benefit Plan: Election Options

Phoenix Divorce Lawyer — Fri, 23 Sep 2011 19:15:00 GMT

In a military divorce, the Survivor Benefit Plan (SBP) can play a major role. To protect a surviving former spouse's share of military retirement, divorce courts can require a servicemember to elect former spouse SBP coverage.

Without SBP, if the retiree dies, the military retirement stops as well. You can think of the SBP as an insurance policy, focused on protecting a survivor's income flow from the military retirement if the retiree dies first. It has a premium, and a payout in the form of a monthly payment from DFAS.

This post will discuss the basic outline of the program; later posts will discuss its applicability in divorce proceedings.

First, we need to answer some questions about eligibility and election: What categories of persons are eligible for coverage under SBP, and how is the decision made?

The following are eligible to receive SBP are spouse; spouse & children; children only; former spouse, former spouse and children; or persons with an "insurable interest." Grandchildren eligible for coverage under the SBP Program, but only if documentation can be provided that substantiates that the grandchildren live with and are supported by the military grandparent (this situation can become very technical). A person with an insurable interest is someone whom an unmarried retiree might want to provide for, i.e. a relative (including dependent children) or other person who could be hurt financially if the retiree dies.

Your nonmilitary spouse can veto your election should you elect to not participate in SBP or elect not to participate at the maximum level. Every retiring member is automatically enrolled in SBP for full coverage unless the spouse consents in writing to reduced coverage or no coverage.

The election you make prior to retirement is irrevocable after you retire. So if, as an eligible SBP participant, you elect not to participate (with your spouse's consent), you cannot participate at a future date subsequent to retirement. Similarly, if you choose children-only coverage. you cannot change your mind and elect spouse coverage in the future. Even if your spouse predeceases you and you remarry, the new spouse can never be covered under the plan. And the reverse is also true: if you choose spouse-only coverage, you cannot elect child(ren) coverage in the future, even if your spouse predeceasesyou. If, however, you did not have any dependents when you retired, but have married since then, your spouse is eligible for SBP coverage. Application must be filed with your DFAS within one year of the date you were married.

What if you and your spouse are a double military retirement couple, and both of you are (or soon will be) eligible for retirement? If you have children, generally, you should elect child-only coverage. However, each situation in this category of marriage must be considered individually.

Another tricky situation arises when you have elected SBP coverage for a mentally incapacitated child. Generally speaking, you should have a court-appointed guardian designated (this can be your spouse/former spouse). It is not strictly speaking required, but it will greatly facilitate dealing with the bureaucracy, because federal policy strongly prefers a court appointed guardian. The Comptroller-General consistently has held such SBP payments should be made only to a court-appointed guardian when he annuitant is incapable of managing his or her personal financial affairs. However, Section 654 of P.L. 102-190, enacted on Dec. 5, 1991, authorizes the Department of Defense, like other federal agencies, to pay an annuity due to a minor or incompetent survivor of a military retiree under the RSFPP or the SBP to a representative payee, without requiring the payee to be appointed by a court. Guidance from the DFAS implementing this law includes (but is not restricted to) the following:

An annuity may be paid to a third party on behalf of an incapacitated annuitant only if the third party has been appointed as guardian, custodian or other fiduciary pursuant to a state court order or has been designated a representative payee.
The SBP/SSBP annuity due a minor, mentally incompetent or otherwise legally disabled person for whom a guardian or other fiduciary has not been appointed may be paid to a representative payee who, in the judgment of the service secretary concerned, is responsible for the annuitant's care. The representative payee is required to spend or invest the amount paid on behalf of the annuitant solely for the benefit of the annuitant. This includes any SBP/SSBP payable to the spouse or former spouse annuitant. The representative payee must certify that SBP (and SSBP, if applicable) payments received on the annuitant's behalf are used for the annuitant's benefit.
An annuitant is determined to be incompetent if the service secretary concerned receives an actual determination of incompetence made either by a state court or by a physician or psychologist. A representative payee will not be established solely on the basis of a letter request from a third party that an annuitant is incapable of handling financial affairs.
If a court order provides for payment of a fee to the representative payee or if the service secretary concerned determines that payment of a fee is necessary in order to obtain the fiduciary services of a representative payee, a monthly fee will be allowed. In such circumstance, a fee of 4 percent of the monthly SBP/SSBP annuity will be allowed, unless a court order dictate a less fee. In the case of a spouse or former spouse annuitant, the fee will be no more than 4 percent of the adjusted annuity - gross annuity less any DIC or Social Security offset reduction. Any court order that provides for a fee in excess of 4 percent shall be limited to 4 percent.
In cases where it appears necessary to protect the annuitant, the service secretary concerned may require the payee to provide a surety bond in an amount sufficient to protect the interest of the annuitant. The representative payee may pay for such bonds out of the SBP annuity.
The representative payee shall be required to maintain and, upon request by the service secretary concerned, provide a periodic accounting of expenditures and investments of amount give to the payee. If the representative payee is a close family member or a government or financial institution, this periodic accounting will not be required.

If you are facing these issues, get an experienced and aggressive Phoenix divorce lawyer on your side. Contact us today for a free consultation.

The Arizona Child Support Guidelines

Phoenix Divorce Lawyer — Thu, 22 Sep 2011 23:25:00 GMT

In a divorce case, child support is often an issue. Each state has adopted guidelines setting automatic rates of child support. The support is based on specific criteria relating to income and the number of children in the household. In this state, child support payments are based on the Arizona Child Support Guidelines; the current version became effective on January 1, 2005. In every child custody case there will a determination of child support. Under our guidelines, support payments are in an amount calculated to meet the reasonable needs of the child for health, education, and maintenance.

The Arizona Child Support Guidelines serve four fundamental purposes, as follows:

-- To "establish a standard of support for children consistent with reasonable needs of children and the ability of parents to pay."

-- To "make child support orders consistent for persons in similar circumstances."

-- To "give parents and courts guidance in establishing child support orders and to promote settlements."

-- To are designed to "comply with state... and federal law..."

The guidelines include seven premises predicating their application to every child support case:

--The guidelines apply to all children. Whether adopted or born out of wedlock, it makes no difference for child support purposes. Every child is covered under the guidelines.

-- Child support is a priority financial obligation. A parent's other debts are not considered in determining his or her share of support.

-- The duration and amount of spousal support, if any is to be awarded, is determined by the judge before the parents' respective child support obligations are established.

-- Every parent has a legal duty to support his or her natural or adopted child. Support of a step-child is purely voluntary.

-- Under certain circumstances, the custodial parent will pay child support.

-- Child support is calculated on a monthly income basis. Adjustments to the support are annualized to achieve a monthly figure. This allows for an equal monthly distribution of the cost item over the course of a year.

-- The basic child support owed is capped when the parents' combined adjusted gross income reaches $20,000 per month. Also, the basic child support obligation is capped with the sixth child.

In any action involving child support, the amount calculated under the guidelines is presumed to be the amount the court shall order paid. The court can make an exception if the result using the guidelines would be unjust or inappropriate under the circumstances. In that situation, the court may deviate from the guidelines by increasing or decreasing the amount of support.

The total support approximates what the parents would have spent on the child if they were living together as one family. Under the guidelines' shared income model, each parent contributes a proportionate share of his and her income. Typically, the noncustodial parent is ordered to pay a percentage of his or her gross monthly income to the custodial parent for child support.

The amount of support to be paid is calculated by considering many factors, including the parents' gross incomes, the child's necessary expenses, extraordinary medical expenses, work-related daycare expenses, and the number of children residing in the home, among other things.

The judge will set a termination date in the child support order. Child support is presumed to terminate on the last day of the month of the youngest child's 18th birthday, that is, the youngest child covered by the support order. If the youngest child won't graduate from high school before his or her 18th birthday, then support ends the month of anticipated graduation or on the child's 19th birthday, whichever is first to occur.

Parents may include child support provisions in their separation agreement which exceed the legal presumptions under the guidelines. They may agree to continue child support for a longer period, or may agree to increase the amount of support per month. For example, the parents may include additional support payments sufficient to provide for private school, college, travel, or summer camp.

When the parents share custody equally, there will still typically be a payment from one to the other. The exception to that would be if, over a sustained period, both parents earned identical incomes and spent identical hours with their child. Although that is a possibility, it is rare.

There is an important circumstance when the court may order child support to continue beyond that child's age of majority and into adulthood. For the court to order such support, the adult-child must have a significant mental or physical disability that prevents him or her from living independently. The controlling Arizona statutory provision is found in A.R.S. § 25-320(E)

For this provision to apply in any given case, the adult-child must have manifested the disability during minority. The court may order support to be paid to the adult-child or to the parent who provides for the care. The parent seeking support need not be the adult-child's legal guardian or legal custodian before the court can order such support. In the event the adult-child has no guardian or custodian, he or she should be joined as an indispensable party to the support proceedings.

If you are facing any of these issues in Phoenix, you need an experienced Phoenix divorce lawyer on your side. So contact us for a free consultation.

Parent Information Program (PIP)

Phoenix Divorce Lawyer — Wed, 21 Sep 2011 22:35:00 GMT

In every Arizona divorce or family law case in which a party has asked the court to determine child custody, child support and visitation (parenting time), both parties must complete the Parent Information Program, known as the Parent Education Program in other counties. The applicable statute is A.R.S. § 25-35. It doesn’t matter whether the child was adopted or the natural offspring of the parent (note: when a new spouse adopts the step-children, the adoptive parent is treated on an equal legal footing as the biological parent).

The program is designed to help parents understand the impact that their separation, divorce, or paternity case might have on the emotional well-being of the child. A child’s life will be profoundly affected by the court proceedings which will restructure his or her family.

Although the class is required in all cases in which the court is asked to determine matters of child custody, visitation, and child support, the court has discretion to order parental participation in the program in other cases, too, including a modification or enforcement of child support, custody or visitation.

This parent education class is three hours long and must be completed within 45 days of the initial court filing. There is a modest fee, but most people find that the benefits of program participation are well worth this expense. When the participant has completed the course, he or she is issued an official Certificate of Completion. The original certificate must be filed with the court before any final orders over custody and parenting time will be issued.

The course is scheduled with court-approved providers available through each county. In Maricopa County, an online Parent Information Course is also available at the same fee. The online course is there for parents who are residing outside the county or outside the state, who are in a domestic violence shelter, who are disabled, or who are in jail or prison. Sometimes the judge specifically orders that a parent complete the online course.

Some of the topics covered are:

A child’s adjustment to a changed family.
How divorce or separation emotionally affects a child.
How parental conflict and violence affects a child.
Importance of positive communication.
Improved co-parenting techniques.
Parental responsibility.
Recognizing the warning signs of a child in distress.
Parental behaviors.
Responses and reactions to court proceedings.
Emotional stages of separation and divorce.

You may be wondering why you need to attend a parent education class at all. The reason is fairly simple: it is mandatory. More importantly, many people find that the classes really help; there are statistics to back that up. There isn’t any experience like a divorce or separation, and the process affects everyone in the family. Statistics bear out that parents who attend the classes are more capable of cooperating for their child’s benefit. The classes also help minimize returns to court to resolve future parenting disputes.

Before you go, here are a few tips for mothers and fathers who are going through a divorce or separation:

Make sure to listen carefully to your child’s language and “hear” clues to the child’s emotional state in those words.
Make sure your child understands that he or she is not to blame for the parents’ breakup. All experts agree that this is crucial.
Make sure your child understands that he or she is not being divorced from the parents, and that both parents still love the child and will still be there for him or her.
Make sure to comfort your child when he or she needs emotional support. Children need assurances that they are loved and will be taken care of.
Make sure that disagreeable conversations with your ex occur out of sight and hearing of your child.
Make sure that you are not so distracted with your family law case that you forget to praise your child for good works.
Make sure that you and your child continue to have good times together. Life goes on, and fun-filled afternoons can make a world of difference in relieving stress for everyone.

Here is the link to the Maricopa County PIP: http://www.theparentinformationprogram.com/Contact_Us.aspx

You can call the program at 1.866.778.3349.

If you are facing family law issues anywhere in the Phoenix area, you need an experienced Phoenix divorce lawyer on your side. So contact us right away for a free consultation.

The Resolution Management Conference

Phoenix Divorce Lawyer — Tue, 20 Sep 2011 22:15:00 GMT

Early on in a divorce or child custody case, often a party will request a Resolution Management Conference (RMC). In addition, the court may decide on its own initiative to schedule an RMC. Before the RMC, the parties must discuss any possible settlements (unless there is an Order of Protection in place) and be prepared to discuss those options at the conference.

Each party files a “Resolution Statement” with the court before the RMC is held. This gives the court a preview of what the issues are and the legal positions each party will take on the issues. The RMC procedure encourages early settlement by requiring the parties to take reasonable positions early on, without argument. The parties’ statements cover every remaining issue in the case, including custody, support, spousal maintenance, asset and debt division, attorneys’ fees, name changes, and any other additional issues that the parties have relevant to the family law case.

The purpose of the RMC is to settle issues before trial. The RMC also helps the court manage any unresolved custody and child support issues, evaluate the need for any requested Temporary Orders over matters of pre-trial custody and child support, and also to initiate referrals and services in preparation for trial. At the end of the conference, a case is either finalized with a Consent Decree avoiding trial, or scheduled for a trial or future event to decide the remaining issues in the case. If there is no settlement agreement on all the issues at the RMC, then the judge will automatically set the case for trial.

The conference is beneficial in many ways. If there are pending requests for Mediation or for an Alternative Dispute Resolution settlement conference, the RMC judge can expedite referrals to these services. Filing the parties’ Resolution Statements advises the judge of the contested issues and assists both parties in flushing out the major areas of their disagreements. If after the RMC no settlement is reached, then the court sets a trial date. With a firm trial scheduled, the parties are frequently more intent on settling issues between themselves, rather than leaving life-changing decisions to the judge.

The conference will take between one and two hours to complete (including the attorneys meeting beforehand), at which time any of the following may result:

Consent Decree: The case is fully resolved and finalized with a Consent Decree.

Partial Settlement and Trial: The parties reach a final partial agreement; a trial will still be scheduled to decide the remaining unresolved issues, but it will be shorter than it would have been otherwise.

Trial: The parties do not reach any agreement at all and a trial date is scheduled.

Temporary Orders: Requests for Temporary Orders are managed or issued.

If you are facing divorce, child custody, or child support issues in the Phoenix area, you need an experienced Phoenix divorce lawyer on your side. So contact us today to schedule a free consultation.

Temporary Orders

Phoenix Divorce Lawyer — Mon, 19 Sep 2011 21:55:00 GMT

In a divorce or other family law case, the parties often want a temporary court order prior to trial. When there are no court orders yet in place, problems tend to surface quickly. These “Temporary Orders” govern the parties’ actions while the case is pending. Temporary Orders may address parenting time, child support, spousal support, access to personal items, and many other aspects of the family law case.

To request temporary orders, a Motion for Temporary Orders is filed with the court. The court may schedule a 15-minute return hearing. At a return hearing, the court is advised of the issues requiring Temporary Orders. An evidentiary hearing is then scheduled to allow the parties to produce evidence and witnesses in support of their respective positions. The other possibility is that a Resolution Management Conference will be set.