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/.