Wednesday, December 15, 2010

GRANDPARENTS' RIGHTS - Are You Being Deprived of Visitation With Your Grandchildren?

There is nothing more heartbreaking than a grandparent who is not allowed to have contact with the grandchildren, especially during the holidays.  The relationship between a child and his or her grandparent is a special kind of bond, one that cannot be replaced.  For a grandparent to be unfairly “cut out of the picture” can be devastating for both the grandparent and the child. 

Arizona law provides that grandparents do have a legal right to visitation with their grandchildren under certain circumstances.  Arizona Revised Statutes, Section 25-409 spells out the criteria that the courts use to determine whether grandparent visitation would be appropriate in a particular case; and the appellate courts have published cases which interpret the statute and provide guidance to help the trial judge make a decision.

There is a presumption that a fit parent’s decision to deny or limit visitation was made in the child’s best interests.  However, that presumption can be rebutted by evidence to the contrary.

A.R.S., Section 25-409(A) provides that “The superior court may grant the grandparents of the child reasonable visitation rights . . . on a finding that the visitation rights would be in the best interests of the child and any of the following is true:

1.                  The marriage of the parents of the child has been dissolved for at least three months.
2.                  A parent of the child has been deceased or has been missing for at least three months . . .
3.                  The child was born out of wedlock.

Section (C) of the statute provides that “In determining the child’s best interests the court shall consider all relevant factors, including:

1.                  The historical relationship, if any, between the child and person seeking visitation.
2.                  The motivation of the requesting party in seeking visitation.
3.                  The motivation of the person denying visitation.
4.                  The quantity of visitation time requested and the potential adverse impact that visitation will have on the child’s customary activities.
5.                  If one or both of the child’s parents are dead, the benefit in maintaining an extended family relationship.

To obtain court-ordered visitation over the objection of a parent, the grandparent must fall within one of the three categories listed in Section A of the statute, above; and the grandparent must be able to prove that visitation would be in the child’s best interests.  If the grandparent can demonstrate that he/she has maintained regular contact and has a loving and appropriate relationship with the child, then the prospect of obtaining visitation is greatly enhanced.  When one of the parents has died, the Court will give special consideration to protecting the relationship between the child and the deceased parent’s family. 

The Arizona courts have ruled that while a trial judge has considerable discretion in shaping a grandparent visitation order, the court is not free to simply second-guess the decision of a fit parent as to visitation rights.  Where a parent has agreed to allow some reasonable contact between the grandparents and the children – even if it is not as much time as the grandparents would like – the courts will usually not interfere with the parent’s decision.  On the other hand, where a parent refuses to allow any contact at all, the Court has the power to step in and order the parent to let the grandparents spend time with their grandchildren on a regularly scheduled basis.

These are difficult and complex cases.   If you are in need of a grandparents’ rights attorney – or if you are a parent who believes that contact with a grandparent would be potentially harmful to your child – then do not hesitate to contact the law firm of Gary J. Frank P.C. for a consultation.  You can reach us by telephone at 602-383-3610 or by email through our website at http://www.garyfranklaw.com/.   Contact us today.



    

GRANDPARENTS' RIGHTS - Are You Being Deprived of Visitation With Your Grandchildren?

There is nothing more heartbreaking than a grandparent who is not allowed to have contact with the grandchildren, especially during the holidays.  The relationship between a child and his or her grandparent is a special kind of bond, one that cannot be replaced.  For a grandparent to be unfairly “cut out of the picture” can be devastating for both the grandparent and the child. 

Arizona law provides that grandparents do have a legal right to visitation with their grandchildren under certain circumstances.  Arizona Revised Statutes, Section 25-409 spells out the criteria that the courts use to determine whether grandparent visitation would be appropriate in a particular case; and the appellate courts have published cases which interpret the statute and provide guidance to help the trial judge make a decision.

There is a presumption that a fit parent’s decision to deny or limit visitation was made in the child’s best interests.  However, that presumption can be rebutted by evidence to the contrary.

A.R.S., Section 25-409(A) provides that “The superior court may grant the grandparents of the child reasonable visitation rights . . . on a finding that the visitation rights would be in the best interests of the child and any of the following is true:

1.                  The marriage of the parents of the child has been dissolved for at least three months.
2.                  A parent of the child has been deceased or has been missing for at least three months . . .
3.                  The child was born out of wedlock.

Section (C) of the statute provides that “In determining the child’s best interests the court shall consider all relevant factors, including:

1.                  The historical relationship, if any, between the child and person seeking visitation.
2.                  The motivation of the requesting party in seeking visitation.
3.                  The motivation of the person denying visitation.
4.                  The quantity of visitation time requested and the potential adverse impact that visitation will have on the child’s customary activities.
5.                  If one or both of the child’s parents are dead, the benefit in maintaining an extended family relationship.

To obtain court-ordered visitation over the objection of a parent, the grandparent must fall within one of the three categories listed in Section A of the statute, above; and the grandparent must be able to prove that visitation would be in the child’s best interests.  If the grandparent can demonstrate that he/she has maintained regular contact and has a loving and appropriate relationship with the child, then the prospect of obtaining visitation is greatly enhanced.  When one of the parents has died, the Court will give special consideration to protecting the relationship between the child and the deceased parent’s family. 

The Arizona courts have ruled that while a trial judge has considerable discretion in shaping a grandparent visitation order, the court is not free to simply second-guess the decision of a fit parent as to visitation rights.  Where a parent has agreed to allow some reasonable contact between the grandparents and the children – even if it is not as much time as the grandparents would like – the courts will usually not interfere with the parent’s decision.  On the other hand, where a parent refuses to allow any contact at all, a judge has the power to step in and order the parent to let the grandparents spend time with their grandchildren on a regularly scheduled basis.


These are difficult and complex cases.   If you are in need of a grandparents’ rights attorney – or if you are a parent who believes that contact with a grandparent would be potentially harmful to your child – then do not hesitate to call the law firm of Gary J. Frank P.C. for a consultation.  You can reach us by telephone at 602-383-3610 or by email through our website at http://www.garyfranklaw.com/.   Contact us today.

Tuesday, December 7, 2010

WITH AN ATTORNEY, YOU HAVE AN ADVANTAGE IN FAMILY COURT -- If You Can't Afford One, There Are Options

Imagine walking up to bat in a baseball game – and you don’t know the rules.  You don’t know the difference between a “ball” and a “strike.”  You don’t know that three strikes is an “out,” or that three outs ends the “inning.”  You are aware that you’re supposed to swing at the pitch, but once you hit the ball, you don’t know which way to run.  No matter how hard you try or how athletic you are, the fact that you don’t know the rules of the game puts you at a huge disadvantage.

If you decide to represent yourself in a divorce, custody, or other Family Law case – especially if there is an attorney on the other side – then you may find yourself at a similar disadvantage, one that is hard to overcome. When you step into the courtroom as a litigant, you are expected to know the rules of procedure and the rules of evidence.  That you are a layman and not a lawyer is no excuse.  Your lack of knowledge can prevent you from being able to properly question a witness, or present evidence, or tell your side of the story in court.  In a matter involving custody or parenting time, the end-result can be devastating.

Attorneys go through years of schooling and training, followed by continuing education, in order to be able to understand the nuances of the law and the rules of court.  They know how the game is played.  This is why, in the courtroom, a person representing himself is no match for a trained-lawyer.

Obviously, hiring a qualified attorney in a Family Law case gives a party the best chance of obtaining a favorable outcome.  But what happens if you simply cannot afford ongoing legal representation?  Thankfully, there are a number of options:

1. LEGAL CONSULTATION WITH AN ATTORNEY:

If you cannot afford to hire an attorney to represent you on an ongoing basis in your Family Law dispute, then at least you may be able to pay a lawyer to provide a one-time legal consultation.  Much important information can be obtained from a one or two-hour meeting with a lawyer.  For instance, in a consultation at the law office of Gary J. Frank P.C, I will carefully listen to the client’s concerns and ask questions about the client’s family history, so that I can identify the issues that apply to that particular case.   Once I have sufficient background information, I will discuss the applicable law and help the client understand his or her legal rights.  Then I will talk about how the court process works, and I’ll give the client a “game plan” and tips on how to present his/her case in the best possible light. 

If you are representing yourself in a contested custody or other family law matter, then during the course of the case you may wish to return to the attorney’s office from time to time for additional consultations.  Although the attorney is not representing you in the legal action, additional consultations will provide you with updated information and a better understanding of what you need to do at various stages of the proceeding.  For someone who cannot afford an attorney, a legal consultation can be a useful tool to help navigate the difficult terrain of litigation.

2. LIMITED SCOPE REPRESENTATION:

In Arizona, a person who does not have the resources to retain an attorney on an ongoing basis in a Family Law litigation can now hire an attorney to perform a particular, and limited, task.  This is called Limited Scope Representation.  For instance, you might need an attorney to prepare a written motion or some other legal document for you; or appear and represent you at a single court hearing; or maybe attend and conduct a deposition.  This type of limited representation requires a written agreement, signed by both the party and the attorney, which describes in detail the task to be performed.  The attorney will file a Notice of Limited Scope Appearance with the court before performing the task.  When the task has been completed, the attorney will file a Notice of Withdrawal and the representation is terminated.  Thereafter, you will continue representing yourself.  If you need further assistance later on in the litigation, a new Limited Scope Agreement must be signed before the attorney can work on your behalf.

Of course, you can always obtain a consultation with an attorney at any time without having to sign a Limited Scope or an Attorney-Client Agreement

3. MEDIATION:

Mediation is the “peaceful path.”  It is a voluntary and confidential process in which the parties to a dispute sit down with a neutral 3rd party (the mediator) who helps them negotiate a settlement that is acceptable to everyone.  While litigation can be adversarial and expensive, mediation is more collaborative and less expensive.  So, it is worth a try.  If, after using their best efforts, the parties are unable to reach a settlement in mediation, then they can still litigate the matter in court.  Attempting to mediate a Family Law dispute is good alternative for everyone, but for someone who cannot afford an attorney, it may provide the best shot at a fair and inexpensive resolution of the problem.


 I have represented people, and provided strong advocacy, in all types of Family Law disputes for nearly thirty years.  For almost twenty of those years, I have acted as a Family Law Mediator, helping people to negotiate the terms of their own settlement.  I do my best to assist people who cannot afford to retain a full-time attorney by providing legal consultations and Limited Scope Representation.  If you are in need of help and would like to set up an appointment with an attorney, you can contact us by telephone at 602-383-3610 or through our web site at www.garyfranklaw.com.

Saturday, November 20, 2010

The Definition of "Family" Is Changing - Family Law Must Change, Too

The definition of "Family" is changing.  According to a recent study by the Pew Research Center, about 29 percent of children under 18 now live with a parent or parents who are unwed or no longer married.  This is a five-fold increase from 1960.  This statistic does not merely reflect a higher divorce rate -- it is also the result of a rising number of couples who have decided to live together without ever marrying.  In fact, U.S. census data released in September, 2010 shows that marriages have hit an all-time low of 52% for adults 18 and over.  In 1978 just 29% believed that marriage was becoming obsolete.  Today, that figure has grown to 39 percent.  According to the Census Bureau, opposite-sex unmarried couples living together jumped 13 percent this year, to 7.5 million.  Experts speculate that the sharp increase is a result of both changing societal values and the current economic woes.

Whereas "Family" was once defined as a married man and a woman, and children born in wedlock, that definition is becoming much broader in today's society.  It now includes "blended families" with step-parents and children from different relationships; single-parent families; families in which the parents are cohabiting; families in which the children are being raised by grandparents; and gay relationships with or without children.  Our definition of "Family" is morphing and growing, and it is becoming more accepting and inclusive.       

What hasn't changed much is the laws relating to divorce and Family Law.  In order to provide protection for people in non-marital relationships, our laws need to change.  For instance, a spouse who has given up her or his career to care for children throughout a long marriage is entitled to spousal maintenance after a divorce; but a person who has done the same thing in a long-term cohabitation arrangement is not.  Unlike California Arizona has no "palimony" law to protect that person.  And while a spouse in a marital relationship has community property rights, and rights of inheritance under the law, a person in a cohabitation relationship has no such protection after a break-up or a death.  Arizona has no "common law marriage" statute.

For these reasons, a person entering into a committed relationship must think long and hard about what form that commitment should take.  Marriage or Cohabitation?  There is a significant difference from a legal perspective, with a spouse in a marital relationship having far more protection.   

Some recent changes have been made in Arizona, especially in the area of protecting children.  Grandparents, step-parents, and other non-parents now have a legal right to visitation and, in some cases, custody of children with whom they have had a close bond.  Single people and gay couples are now allowed to adopt children who are in need of a loving family.  Custody laws have become more realistic and fair in guiding judges to make determinations of joint vs. sole custody.  New Parenting Time Guidelines have been enacted, and the existing Child Support Guidelines are in the process of being revamped. 

Changes are occurring in how we, as a society, view and define “Family.”  The law must continue to evolve in order to accommodate those changes.

Gary Frank has practiced Family Law in Arizona for almost thirty years, acting in the capacity of a counselor, a litigator, a mediator, and a judge pro tem.  He is a committed advocate for families and children.  If you are in need of advice or representation, contact our office at 602-383-3610 or email us through our website at http://www.garyfranklaw.com/.

Friday, November 5, 2010

ATTORNEY FEE AWARDS – Restoring the Balance of Power

If you are involved in a divorce and/or custody case and are afraid that you don’t have the financial resources to stand up and fight for your rights, here’s the good news -- Attorney Fee Awards, under Arizona law, are the great equalizer.

It is not uncommon, in a divorce or custody case, for one party to have a much higher earning capacity than the other party.  Sometimes the party with the greater earning ability will use that power as a hammer, bullying the poorer party with threats or making her/him spend money on litigation until those resources are exhausted.  “You don’t have the money to fight me, so you might as well take what I’m offering.”  That's a familiar refrain in Family Court cases.  But know this:  If you are the party with the lesser resources in a divorce or custody matter, you do not have to allow yourself to be “steamrolled.”  Arizona has laws that can help you level the playing-field, so that you can assert your legal rights.

Arizona Revised Statutes, Section 25-324 provides that “The court from time to time, after considering the financial resources of both parties and the reasonableness of the positions each party has taken throughout the proceeding, may order a party to pay a reasonable amount to the other party for the costs and expenses of maintaining or defending (the litigation).”

What this means is that the judge can force the party with the greater resources to pay the poorer party a reasonable amount to cover his/her attorney fees and litigation expenses.  The poorer party can file a motion for an award of attorney fees at the beginning of the case, or at any other stage of the proceeding.  It can be done more than once, if necessary.  The judge will set a hearing date and the party will be able come into court to explain why she or he is in need of help paying attorney fees.  If there is a significant disparity of income or resources between the parties, or if one party has been bullying the other or acting unreasonably, then the judge has the authority to make an attorney fee award.

Another statute, A.R.S., Section 403.08, provides that “(A) In a proceeding regarding sole custody or joint custody, either party may request attorney fees, costs and expert witness fees to enable the party with insufficient resources to obtain adequate legal representation and to prepare evidence for the hearing; (B) If the court finds there is a financial disparity between the parties, the court may order payment of reasonable fees, expenses and costs to allow adequate preparation.”

This statute is similar to A.R.S., 25-324 but applies to non-divorce cases involving custody, such as Modification of Custody actions, Paternity, Grandparent, and Non-Parent custody matters, etc.

The Arizona Courts have explained that the purpose of the statutes allowing the court to make an attorney fee award is to provide a remedy for the party least able to pay; and to insure that the poorer party has the means to litigate the action free of the other's hold on the family finances.

By making an award of attorney fees in a divorce and/or custody case, the court can place the parties on a level playing-field and restore the balance of power.

If you are in need of help in your divorce or custody case, contact our office today.  You can call us at 602-383-3610 or email us through our web site at http://www.garyfranklaw.com/.

Monday, October 25, 2010

Exciting Things Happening In Education

Squaw Peak Traditional Academy, in the Creighton School District, is a superstar school in the making.  Its rebirth started with a local attorney, Renee Sandler Shamblin, and a very enthusiastic group of parents.  They had a vision of a stellar neighborhood traditional school in the heart of Phoenix with a Spanish Immersion Program as its centerpiece -- and they made it happen.  This school, located in the Biltmore area of Phoenix, near 32nd St. and Camelback Rd., has everything:  a great facility, student diversity, active and involved parents, excellent and committed teachers, a caring and competent Principal, and a district Superintendent who actually listens to parents and cares about their viewpoint.  It's a public school with a private school sensibility.  The school's boundaries run north and south from Lincoln Dr. to Indian School Rd.; & east and west from 32nd Street to 40th Street.  There's a groundswell of excitement about the new Squaw Peak Traditional Academy.  Families are returning to their neighborhood school, knowing that their children will receive a top-notch education.  What started as a trickle is becoming a flood, with waiting lists for the popular Spanish Immersion Program.  Parents can now take the private school tuition they used to pay, and put the money away for their kids' college education.

A Creighton Override is on the ballot this November.  A "Yes" vote will help maintain small class sizes and fund critical programs such as art, music, and P.E.  Educating Arizona's children should be our number-one priority.  That's why I'm voting "Yes" on the Creighton Override.

Gary J. Frank
http://www.garyfranklaw.com/

Saturday, October 16, 2010

To Marry or Not to Marry -- That is the Question.

Today, more and more people are deciding to live together before marriage.  Many couples live together with no intention of ever marrying.  People frequently ask me: "Is it better to marry or to just live together without legal ties?"  My answer is always the same: "That's a decision that is best left to each couple, after giving the matter careful consideration."  There are pros and cons to each arrangement.  On the one hand, if there is no marriage then there will be no need for a divorce if the couple should ever break up.  On the other hand, the law does afford a married person certain protections, and there are often legal consequences when a relationship ends, even if the cohabiting couple never married.

The longer a couple has lived together, the more "things" they typically acquire.  For instance, a couple may pool their money to buy a home, or a car, or a houseful of furniture.  They may have a joint bank account, or mutual investments.  How are these things divided if and when the relationship ends?  And what happens if the parties can’t agree on a division? 

There is no "common law marriage" in Arizona.  When the cohabitation is over, the concepts of divorce and community property do not apply.  If the couple owns property or bank accounts together – and if they are fighting over them – then they may wind up in a lawsuit, even if they never married.  Rather than using a "community property theory" of division, the Court will likely use a “partnership” theory to divide these assets.  A problem may arise where the parties bought a house together but one of them paid all the mortgage payments with his/her separate income from work.  In a divorce scenario this would be an easy call and the value of the house would be split equally, since income earned by a spouse from employment during the marriage is considered “community property” (and both the husband and wife have an undivided 50% interest in all community property).

Spousal Maintenance is a statutory right that is afforded only to a married person in Arizona.  The parties may have lived together for many years, and one of them might have given up a career to be a homemaker or a stay-at-home parent, but if the parties were never married there is no right to spousal maintenance when the relationship ends.  This could put the non-married, stay-at-home partner in a real bind and make his or her life unnecessarily difficult following the break-up.

When people have children together and then separate, they may still end up in court over the issues of custody, parenting time, and child support.  The court will make custody and parenting time decisions based on the best interests of the children regardless of whether or not the parents are married.  Child support decisions will be made based on the parents’ incomes and the needs of the children, pursuant to the Arizona Child Support Guidelines.  Whether the parents were ever married is not a factor.

If the parents are not married and the father is not on the child’s birth certificate, then before being given the rights of a parent, the father will have to take the extra step of obtaining a paternity order.  Only then can he ask the court for an order spelling out his custody and parenting time rights.

There are valid reasons for deciding to marry, or live together without marrying.  However, given the fact that this is an important decision with long-term consequences, it would be a good idea to consider the legal ramifications before making a final decision.

Gary Frank has practiced Family Law in Arizona for almost thirty years and has handled cases for both married, and unmarried, persons.  Contact us today for a consultation by calling our office at 602-383-3610, or email us through our website at http://www.garyfranklaw.com/.

Wednesday, October 13, 2010

RELOCATION / MOVE-AWAY CASES - The Most Difficult Matter In Family Court

Relocation and move-away cases are the most emotionally difficult matters in Family Court today.  There’s so much at stake.  It pits a parent’s right to improve his or her quality of life against the other parent’s right to maintain frequent and meaningful contact with the children.  When a written agreement, or court order, for custody of children is in place, then Arizona Revised Statutes (A.R.S.) Section 25-408 is controlling.  Failure to abide by the requirements of the statute could result in disastrous consequences.  Therefore, whether you are thinking of relocating to another city or state with your children – or whether you are opposing the other parent’s attempt to move – you would be wise to consult a qualified family law attorney for advice. 

In deciding whether or not to allow the relocation, the Court is required to determine whether the move would be in the “best interests” of the children.  In arriving at his or her decision, the judge must consider “all relevant factors,” including:

(1)        The factors listed in A.R.S., Section 25-403 as to custody;

(2)        Whether the relocation (or opposition) is being made in good faith and not to interfere with or frustrate the relationship between the child and the other parent;

(3)        The prospective advantage of the move for improving the quality of life for the custodial parent and/or the child;

(4)        The likelihood that the parent with whom the child will reside after the relocation will comply with parenting time orders;

(5)        Whether the relocation will allow a realistic opportunity for parenting time with each parent;

(6)        The extent to which moving or not moving will affect the emotional, physical or developmental needs of the child;

(7)        The motives of the parents and the validity of the reasons given for moving or opposing the move including the extent to which either parent may intend to gain a financial advantage regarding continuing child support obligations; and

(8)               The potential effect of relocation on the child’s stability.   

See A.R.S., Section 25-408(I).

The burden of proving that the move is in the children’s best interest is on the parent wishing to relocate.

A parent wishing to move must provide a “60 Day Notice” of intent to relocate as spelled out in A.R.S., Section 25-408(B) and (C).  The notice can be a letter stating that you intend to move with the children.  You should also include the prospective date of the move, the place you are going, and the reason for the move (i.e., a new job).  The letter must be sent by certified mail return-receipt requested, or served by a process server.  If your ex-spouse wishes to contest the move, he or she must file a petition to prevent relocation within thirty days after the notice is made.

Providing the proper notice is critical.  Relocating without sending a timely notice can result in the moving parent losing custody of the children.  Failing to object to a move in a timely manner can result in the relocation being allowed.  Whether you wish to move -- or if you are opposing a move – preparing a strong case for presentation to the Court is of the utmost importance. 

Relocation / Move-Away cases can be among the most highly contested cases in Family Court.  Gary Frank has nearly thirty years of experience as a litigator dealing with Relocation / Move-Away cases.  To schedule an appointment for a consultation regarding an issue of custody or relocation, call our office today at 602-383-3610 or contact us through our website at www.garyfranklaw.com.  

Saturday, October 9, 2010

ASK THE LAWYER – Helpful Hints on Divorce & Custody Issues from a Phoenix Family Law Attorney

My purpose in writing this blog is to give you, the reader, some useful information on topics related to Family Law.   Contemplating divorce, or running into problems involving custody or parenting time after the marriage has been dissolved, can be stressful and even frightening.  It is often hard to know where to turn for information – and without good, solid information, it is hard to make an intelligent decision.  Hopefully, this blog will provide some of the important information you need and point you in the right direction.

On my web site, I have a section entitled “Ask the Lawyer.”  In that section, you will find questions that clients and others have asked me concerning a wide range of Family Law problems, along with my answers.  The topics include everything from custody and parenting time, to relocation, child support, spousal maintenance, property division, and many other issues that arise when a marriage comes apart.  Some of those issues may apply to your own situation. 

If you are interested in looking at my answers to Family Law questions, check out our website at http://www.garyfranklaw.com/ and click the “Ask the Lawyer” link.

Wednesday, September 29, 2010

Divorce Lawyer or Mediator? -- You Can't Have It Both Ways

A friend recently told me about what a bad deal she got in her divorce.  She entered into a mediated settlement but the terms turned out to be very unfair.  When I asked whom she used to conduct the mediation, she told me that her husband’s attorney acted as the mediator.  No wonder the settlement was one-sided!  It certainly wasn’t my friend's fault.  How was she to have known that it is improper and unethical for an attorney who represents one party to also act as a mediator for both sides in a divorce?  She trusted the lawyer when he said that he could act as an impartial mediator.  But, in actuality, that lawyer had a serious conflict of interest.  He was retained to represent the husband and, as such, his job was to act as a zealous advocate for his client - to take his client’s side and fight for him, if necessary.  A mediator, on the other hand, must be completely impartial.  He or she must act as a neutral third party; someone who doesn’t take sides.  The job of the mediator is to help the parties negotiate an agreement that is as fair to everyone as possible.

It is unethical for a lawyer to represent both parties to a divorce, or to act as a mediator while he is representing one of the parties.  The attorney is allowed to meet with both sides and discuss the issues, or even try to settle the case, but he must make it clear that he is acting in the best interests of his client and that he is not a neutral third party.

I have represented clients in divorce cases for almost thirty years.  As an attorney, I am a zealous advocate for my client's best interests.  My family law practice also includes mediation; and as a mediator, I am a compassionate, impartial professional who works hard to help the parties fashion a fair settlement.  But we can’t wear two hats at once:  We can act as an advocate -- or a mediator -- but not both.  Don’t be fooled by any lawyer who tries to tell you differently. 

If you have a family law question, contact by email, call us at 602-383-3610, or just check out our website at http://www.garyfranklaw.com/     

Tuesday, September 14, 2010

Spousal Maintence vs. Property Equalization Payment - Which is Best?

When negotiating a settlement agreement in which a monthly payment is to be made following a divorce, parties are sometimes faced with a decision:  Should we designate the payment as spousal maintenance -- or should it be considered a property equalization payment?  There are pros and cons to both options. 


The purpose of Spousal Maintenance is to provide financial support for a former spouse who qualifies under A.R.S. §25-319.  Under Arizona law, spousal maintenance payments are taxable to the spouse who receives the payment and deductable to the payor.  Since the person on the receiving end will have to pay income tax on the payment, she or he will wind up with something less than the full amount.  On the other hand, there is a measure of security since it is very difficult to avoid one’s obligation to pay spousal maintenance – especially if it is designated as “non-modifiable.”  Under 11 U.S.C. 523(a)(5) the Bankruptcy Court has no power to discharge a debt for payment of spousal support.  Knowing that the spousal maintenance award cannot be discharged in bankruptcy provides a level of safety that may be important.


A “property equalization payment” is intended to equalize the final division of property between parties to a divorce.  It can be paid in a lump sum or by installment payments.  Unlike spousal maintenance, a property equalization payment does not result in a taxable obligation.  Thus, the receiving party “pockets” the entire amount.  However, if the person obligated to pay a property equalization payment files for bankruptcy, the entire unpaid balance could be discharged under 11 U.S.C. 523(a)(15), and the party on the receiving end could wind up with nothing.

In our struggling-economy, I've handled a growing number of cases in which a former spouse threatens to cut off his or her spousal support obligation by filing for bankruptcy.  Current bankruptcy law makes that an idle threat.  However, if the payment is determined not to be spousal support but, rather, a property equalization payment, then there is a danger that the debt could be discharged in bankruptcy.

The decision whether to structure a payment as spousal maintenance or an equalization payment should be made only after a careful and thorough examination of all relevant factors.  Once that decision is made, the provision must be worded precisely in order to assure that there will be no confusion about the parties’ intent.  Gary J. Frank has over 25 years of experience in handling complex divorce and property division matters.  If you have questions or concerns about your own situation, please do not hesitate to call for a consultation.  Our phone number is 602-383-3610.  For more information, contact us be email or check out our web site at www.garyfranklaw.com.

Wednesday, September 1, 2010

OUR INITIAL CONSULTATION - WHAT TO EXPECT

When you come in for an initial conference at the Law Office of Gary J. Frank P.C., what you get is a real legal consultation. Not a one-hour sales pitch, like you get from some other lawyers. In our first meeting, I will give you a solid understanding of your legal rights and how the court system works – and at the end of the meeting I will give you a "game-plan," so that you will know what you must do to reach your goals. Unlike most firms, I do not limit the initial consultation to one hour.  Instead, I will take as much time as is necessary to:



• Learn about your family history and the background facts of your matter;


• Obtain important information that can be used to help you with your case in court;


• Listen to your concerns and answer your questions;


• Talk to you about the law pertaining to your case;


• Explain your legal rights under the Arizona statutes and appellate court caselaw;


• Discuss the court process - how it works, how long it takes, what documents must be filed; what information must be disclosed; what hearings are held, and how the judge looks at the dispute;


• Discuss options for peaceful resolution of your dispute outside of the court-system, such as Mediation, Conciliation Services Conferences, Settlement Conferences using a judge pro tem, round-table negotiations between the parties and their attorneys; and other healthy alternatives;


• Talk about legal fees and a range of how much your matter might cost; and


• I'll give you a "game plan" tailored to your needs and the specific facts of your matter.  The "game plan" is my recommendations and advice regarding what must be done in your case and the steps that you can take to reach your goals.


An initial conference with an attorney is a critical step in the process of finding a solution to your problem. This is where you begin, for the first time, to put together a “road map” of where you want to go and how to get there.


By the time you leave my office after your first consultation, you should have a much better understanding of your legal rights; of how the court process works; of what your options are; and of what you will need to do to reach your goals and resolve your problem.  Many people walk into our office timid and afraid, and leave armed with knowledge and a sense of renewed confidence.


If you are in need of a legal consultation regarding a divorce, custody, or other family law matter, please check out our web site: http://www.garyfranklaw.com/ .  You can always call us at 602-383-3610 or contact us by email.   I look forward to meeting you.


Sincerely,

Gary Frank

Saturday, August 21, 2010

Domestic Violence Precludes Joint Custody

Under Arizona law, where there is an incident of significant domestic violence, or a significant history of domestic violence, the Court is prohibited from making an award of joint custody to the offender. The law is outlined in Arizona Revised Statutes, Section 25-403.03; and it was reiterated in a recent ruling handed down by the Arizona Court of Appeals in the case of Hurd v. Hurd, 1 CA-CV 07-0342, (2009). In custody matters, the Court is charged with protecting the best interests of the children. A parent who has a history of significant domestic violence, or who has committed a significant act of domestic violence, is deemed incapable of protecting the children’s interests. Therefore, he or she will not be given the responsibility, or the privilege, of acting as their joint custodian. Gary J. Frank has over 25 years of experience litigating high conflict custody matters, including domestic violence cases. Check out our web site at http://www.garyfranklaw.com/.  You can always contact us by email or call our office at 602-383-3610.



A.R.S. §25-403.3, DOMESTIC VIOLENCE AND CHILD ABUSE, states, in pertinent part:


A. “ . . . joint custody shall not be awarded if the court makes a finding of the existence of significant domestic violence pursuant to §13-3601 or if the court finds by a preponderance of the evidence that there has been a significant history of domestic violence.


B. The court shall consider evidence of domestic violence as being contrary to the best interests of the child. The court shall consider the safety and well-being of the child and of the victim of the act of domestic violence to be of primary importance. The court shall consider a perpetrator’s history of causing or threatening to cause physical harm to another person.


C. To determine if a person has committed an act of domestic violence the court, subject to the rules of evidence, shall consider all relevant factors including the following:


1. Findings from another court of competent jurisdiction.


2. Police reports.


3. Medical reports.


4. Child protective services records.


5. Domestic violence shelter records


6. School records.


7. Witness testimony.


D. If the court determines that a parent who is seeking custody has committed an act of domestic violence against the other parent, there is a rebuttable presumption that an award of custody to the parent who committed the act of domestic violence is contrary to the child’s best interests . . . “











Tuesday, August 17, 2010

Welcome

Welcome to my new blog.  In the days, weeks, and months to follow, I will be posting articles of interest; new laws handed down by the legislature; important cases decided by the Arizona Supreme Court and Court of Appeals; tips for clients and readers; and my thoughts on matters pertaining to Family Law in Arizona.  I hope you find this blog to be interesting and helpful.  Please let us know your thoughts.


Gary Frank


 Check out our web site at www.garyfranklaw.com.