Tuesday, December 27, 2011

OUR MISSION STATEMENT FOR 2012


Here is our mission statement for the new year: 

Gary Frank is a Family Law Attorney who cares about his clients.  Whether they are going through a divorce, or dealing with contested custody or other family law issues, we understand that our clients are in the midst of a difficult period in their lives.  By accepting their case, we have made a commitment to be there for our clients; to help them, to support them, and to fight for them.  We will apply the legal knowledge, litigation skills, and powers of persuasion, gained over thirty years of Family Law experience, to tenaciously protect our clients' interests.  Mr. Frank will work with each client to creatively explore options for settling the dispute in a healthy, amicable, and inexpensive manner if possible.  These options could include the use of mediation, settlement conferences, collaborative divorce, or other dispute resolution measures.  However, if a fair settlement cannot be achieved,  then Mr. Frank can always be counted on to aggressively assert his clients' rights, utilizing the skills he has honed over his many years as a courtroom litigator.  Our goal is to protect our clients; to preserve their relationship with their children; to assure that they receive a fair division of assets; and, when necessary, to obtain the financial support they need to provide for a secure future.   Gary Frank will continue to be a caring, compassionate attorney, and a fierce advocate for the best interests of his clients.


Gary Frank is a Family Law Attorney with over 30 years of experience in the areas of domestic relations, divorce, custody, division of property, support, modification actions, enforcement actions, Grandparents and non-parents rights, and all other matters pertaining to families and children.  If you are in need of a consultation, please do not hesitate to call our office at 602-383-3610; or you can contact us by email at gary.frank@azbar.org, or through our website at www.garyfranklaw.com.   We look forward to hearing from you.

Friday, December 16, 2011

HOLIDAY SURVIVAL GUIDE FOR DIVORCED PARENTS

It takes courage. 
Making it through the holidays can be stressful for any family.  But for newly divorced couples, or those who are in the midst of a divorce, it can feel almost traumatic.  The thought of not having your children throughout Christmas, or of being alone on the holidays, can cause feelings of anxiety and despair.  The disruption of what has become a family tradition can cause sadness.  Worries about how the children will fare while in the care the other parent (especially when that other parent was not the primary caregiver) can lead to panicky emotions.  Dealing with the loss of a marriage, and concerns about your children and your uncertain future, can be a recipe for fear and anger.  All too often, these are the types of emotions that come to the forefront during the holidays.  And the result can be arguments, disagreements . . . Conflict.  It is important for you to be able to acknowledge the emotions you are feeling, and decide to take control of them (rather than allowing them to control you).  It takes courage.  But by rising to the challenge, you will be taking your first steps toward building a healthy future for yourself and the children.   
It takes patience.
Not surprisingly, family law attorneys are busy during the holidays.  When communication between parents shuts down, fear takes over.  When moms and dads become unwilling to discuss and compromise, anger flares.  That’s when people turn to their lawyers and the courts.  Sometimes emergency motions and court appearances are necessary, however, in many cases they are caused by a knee-jerk reaction to a perceived slight or threat; something said in the heat of the moment which neither party really intended to turn into an expensive legal skirmish.  In these instances, a little patience can go a long way.  When conflict occurs during the holidays, rather than jumping right in and engaging in a war of words, it helps to sit back, take a deep breath, and consider the alternatives.  This doesn’t mean giving in.  It simply means not “taking the bait” and escalating an already volatile situation.  It means keeping your composure and calmly examining your options before reacting.  Most problems can be worked out when people are able to think clearly and rationally. 
It takes faith.
Statistics show that the vast majority of family law disputes are resolved out of court, before trial.  And following the divorce, most people will eventually settle into a time sharing routine that works for both the parents and the children.  If you can control the panicky emotions now, and make an effort to communicate respectfully with your ex (or soon-to-be ex), then you will be setting the stage for better communication in the future, and a healthier way of handling problems when they do arise.  Try to have a little faith that things will work out.

Here are ten tips for handling the stress and making sure that the children will enjoy the holidays:
1.         Allow yourself to grieve:
If this is your first holiday having to share the children, it doesn’t help to pretend that it isn’t difficult.  You can’t deny your emotions, but you can look for healthy ways to deal with them.  This might include talking to a friend or family member, finding some alone time, looking for a support group, or even seeking the help of a good therapist.
2.         Make time for social activities and exercise:
There will be times when you do not have the children over the holidays.  So, make the best of it.  Spend more time with friends and family.  Look for activities that you enjoy, and do them.  Take time to exercise -- it will get your endorphins pumping and help you to feel good physically and mentally.
3.         Plan ahead:
Planning early for how time with the children will be shared during the holidays reduces the chances for miscommunication, and it allows you time to iron out potential problems before they occur. 
4.         Put the needs of the children first:
When putting together a time-share schedule, make sure to consider the age of the children, as well as their developmental and social needs.  The goal is for the children to be able to enjoy the holidays, and this takes precedence over the convenience of the parents.  For very young children, it may be necessary to set up short periods of time with each parent.  For older kids and teens, longer time periods with each parent (such as a week with one, followed by a week with the other, during the school break) may be the best alternative.
5.         Be flexible:
If there is one thing I’ve learned about the holidays, it is to “expect the unexpected.”  It happens every year:  A favorite aunt, uncle, or cousin decides to visit at the last minute; a kid gets sick; plans for a family dinner get changed to an earlier, or later, time, etc.  Despite our best planning, these things happen.  So, be willing to be flexible.  It will not only make the holiday more fun for the children, and reduce conflict between parents, but it will make things less stressful (and more enjoyable) for you.  
6.         Allow for open communication:
Lack of communication between children and a parent is a frequent cause of conflict during the holidays.  “I haven’t been able to speak to my kids for a week, and their mom won’t pick up the phone when I call.” -- “Whenever Meagan calls me, I can hear her dad listening on the other line.” --  “My kids told me that my ex won’t let them talk to me on the phone.”   When children are in the home of a parent, they should be allowed to have reasonable telephone contact with the other parent, especially during the holidays.  This eases the children’s fears and shows them that their parents are willing to work together for their best interests. Problems can be avoided if the parents are willing to discuss this issue prior to the holidays and work out a reasonable schedule for phone calls – and, of course, it is important to be flexible.
7.         Don’t try to outdo the other parent:
There is sometimes a tendency for divorced parents to try to outdo each other during the holidays . . .  More fun.  Bigger gifts. Later bedtimes.  Less discipline . . .  Of course, this type of competition is understandable, but it is a trap.  Not only does it make life unnecessarily stressful for the parents, but it is certainly not in the best interests of the children.  Your children love you.  You don’t need to buy their affection.  If you want the kids to enjoy being with you, all you need to do is to give them your love and attention.
8.         Keep the children out of the middle of your dispute:
One sure way to ruin the holidays for your children is to make them feel as though they are in the middle of a battle between their parents.  Don’t make children choose.  Don’t complain to them about the other parent.  Don’t use them as messengers to communicate with your ex.  Don’t let them hear their parents arguing about issues involving them.  They are children, so let them be children.  They deserve to have a nice holiday and, as their parent, it’s up to you to make sure they do.
9.         Allow the children to love the other parent:
Children of divorce can feel torn.  They not only love each of their parents, but they often feel an allegiance and a responsibility to each.  The parents divorced each other, but they did not divorce the children.  Therefore, the children have a right to continue to love both parents after the divorce.  To deny them that right can lead to long term psychological problems.  You are the adult and it is up to you to let your kids know that, despite the divorce, it is ok for them to love the other parent.  You can do that by not badmouthing the other parent; by not interrogating the kids after visits; and by not putting them in the middle of your dispute.  Just taking these simple steps can help assure that your children will grow up to be healthy, well-adjusted adults, and that they will always look forward to the holidays with their family.      
10.       Start a new tradition:                                
One of the hardest things for parents to bear following a divorce is the loss of a beloved holiday tradition with their children.  So, start a new tradition: a party with family and friends; baking holiday goodies together; a fun trip; working with a charity.  The holidays are all about family, and giving.  You can sit down with your children and let them help choose a new activity that will become a beloved family tradition – something they will always remember.

Gary Frank is a Family Law attorney with more than thirty years of experience as a litigator, a mediator, a judge pro tempore, and a children’s advocate.  His practice includes divorce; custody; parenting time disputes; child support; spousal maintenance; actions to enforce and/or modify orders; grandparents’ and non-parents’ rights; move-away cases; division of property and debts; and all other matters pertaining to families and children.  We have offices around the Valley to better serve our clients.  If you would like a consultation, please do not hesitate to contact us by telephone at 602-383-3610; by email at gary.frank@azbar.org; or through our web site at www.garyfranklaw.com.

Friday, December 2, 2011

A MOVIE STARLET'S GREATEST SIN

Judy Lewis died of cancer last week, and the secret came spilling out.  She was the daughter of movie star Loretta Young and acting legend Clark Gable.  That was the secret, one which Loretta Young kept from the world -- and even from her own daughter.
In the 1930’s Loretta Young and Clark Gable starred together in the movie “Call of the Wild.”  During the filming of that movie, the two had what would have been considered a lurid affair. Gable was married.  Young was a single woman and a devout Catholic.  When she discovered that she was pregnant, Young went to great lengths to hide the pregnancy in order to avoid a scandal.  A baby born out of wedlock to a Hollywood starlet would have been front-page news.
Loretta Young fled to Europe.  After the baby girl was born, she was kept sequestered with a nurse for months and then turned over to an orphanage.  When baby Judy turned two, she was adopted – by Loretta Young.  The child was never told that she was actually her mother’s biological daughter.  In fact, it was not until 1966, when Judy was 31 years old, that her mother divulged the secret to her -- and Loretta Young insisted that her daughter keep quiet about her parentage.  By that time, Gable had died.  Twenty years later, during a heated argument between mother and daughter, Young threatened to sue Lewis if a book ever came out that revealed the truth.  The exchange ended with Young shouting, “Leave this house.  I never want to see you in my house again!”  
But Judy did write her memoir, which was finally published in 1994.  In it, she speaks of “all the years of hurt and abandonment, all the feelings of not belonging, of being an outsider in my own family, years of repressed emotions that couldn’t be contained any longer.”
While Loretta Young was alive, her daughter asked her if she would “ever acknowledge to the world that I am your child and that Clark Gable is my father?” 
The mother replied.  “No. I will never acknowledge what I consider a mortal sin – my mortal sin.”
But which was Loretta Young’s greatest sin?  A baby born out of wedlock – or thirty years of lying to, and deceiving, her own child?  

Gary Frank is an Arizona Family Law attorney with more than 30 years of experience in handling divorce, child custody, and all matters pertaining to children and families.  If you are in need of expert advice in the area of Family Law, please feel free to contact our office by phone at 602-383-3610; or by email at gary.frank@azbar.org; or you can reach us through our website at http://www.garyfranklaw.com/

Monday, November 28, 2011

HOW DOES DIVORCE AFFECT SOCIAL SECURITY BENEFITS?

We work throughout our entire adult lives and, during that time, most of us are required to pay into the Social Security System.  The payoff comes when we hit retirement age and are able to start receiving Social Security benefits.  But what happens when a person gets divorced?  "How will the divorce affect my Social Security?"  "Do I lose half of my benefits?"  "Am I entitled to my husband's social security?"   These are questions I frequently hear from my clients.

The answer is that you do not lose half of your Social Security when you divorce -- but after that, the matter can get complicated.  If you are widowed, then you may be entitled to social security payments as a survivor spouse.  If you are divorced (not widowed), and you are of retirement age, then you could be entitled to spousal benefits, or to your own benefits.  If you had multiple marriages, then you might have to choose between several different options.

I recently came across a Los Angeles Times article which sheds some light on the subject.  In the March, 2011 article, entitled "Divorce can complicate Social Security claims; Knowing the rules involving spousal and survivor benefits can prevent costly errors," author Kathy M. Kristof makes the following points:

"If you were married for at least 10 years to someone who paid into the Social Security system, you are entitled to a spousal benefit, even if you are divorced from that person.  Eligibility does not depend on whether or not you also worked and paid into the system."

"Spousal benefits, if claimed at your full retirement age, usually amount to 50% of the wage earner's full benefit.  If you claim benefits early, the amount you get is reduced."

"If you worked for 10 years and paid into the Social Security system, you also may be entitled to benefits on your own work record.  In that case you must choose -- you cannot claim both your own and spousal benefits.  You can, however, claim the one that gives you the most money."

"If you remarry before age 60, you lose your ability to claim spousal or survivor benefits based on a former spouse . . . If you remarry after age 60, all of your rights to spousal and survivor benefits based on your former spouse's record are retained for your lifetime." 

"If you are single now but were married to more than one person for more than 10 years each, you may be eligible for spousal benefits based on the earnings records of each of those former spouses . .   You don't get to add up all the benefits, of course, but you do get to choose the benefit that's best.  So, if one spouse was an executive with maximum Social Security earnings, the next spouse was a low-wage earner, and the third worked in a job that didn't earn Social Security credits, you can claim the benefit from the first spouse, which is likely to amount to the most money."

"But what if spouse No. 2 died before you claimed Social Security benefits?  Then you would be entitled to spousal benefits on spouse No. 1 or survivor benefits on spouse No. 2.  Because survivor benefits are 100% of the working person's entitlement and spousal benefits are just 50%, the survivor benefits may be more generous, even if spouse No. 2 didn't earn as much.  You can claim the one that pays the most."


Social Security is an important part of your long-term planning for retirement.  In the event of a divorce, you are given choices, but those choices aren't always easy.  Having the assistance of a legal counselor and/or a financial expert can go a long way in helping you to properly plan for your future.


Gary Frank is a Family Law Attorney with over 30 years of experience in handling division of property, retirement assets, and all other matters arising out of divorce and/or legal separation.  If you are in need of a consultation, please do not hesitate to give us a call at 602-383-3610, or you can contact us by email: gary.frank@azbar.org; or through our website at http://www.garyfranklaw.com/.

Tuesday, November 22, 2011

CO-PARENTING IS A TOUGH CHALLENGE, BUT IT'S WORTH THE EFFORT

Co-parenting is often the most difficult challenge that parents face following a divorce.

Poor co-parenting can not only be a source of extreme and ongoing stress for the parents but, worse yet, it can be emotionally devastating to the children.  It can lead to repeated trips back to the courthouse, and many thousands of dollars in legal fees.  But it doesn't have to be that way.

Disagreements over discipline, supervision, parental involvement, or parenting styles are factors which contribute to countless divorces.  So, it is not surprising that, in many of those cases, the problem only gets worse when the divorce becomes final.  After all, if the parents could not agree on parenting issues when they were married, why would they expect things to get better after they divorce and are living apart?

Co-parenting is essential, but it is not easy.  It requires placing the best interests of the children ahead of your own needs.  It requires managing your emotions, and finding a way to deal with your fear, anger, and negative feelings in a healthy and positive manner.  Finally,  it requires a commitment to always take the "high-road," even when the other parent is refusing to cooperate or co-parent.

Taking the high-road is not a sign of weakness.  It doesn't mean giving in or compromising the safety of your child.  What it means is not "taking the bait" when the other parent is pushing your buttons.  It means not "defending yourself" by badmouthing the other parent to your children when the other parent may be playing that game.  It means not putting your children in the middle of the dispute by forcing them to witness angry or violent arguments.  It means not making a child choose one parent over the other.  It means not using children as messengers or spies, or as weapons to hurt the other parent.  It means not sabotaging your child's relationship with your ex-spouse, even though he or she might not be such a great parent.  It also means never allowing yourself to become so emotionally needy that your child feels that it is his or her responsibility to take care of you.  Taking the high-road is a sign of strength.  It is something you can do to assure that the child whom you love so much can grow up to be happy and well-adjusted.

The first step in learning to co-parent is realizing that, after the divorce, there will be times when your children are with your ex- and, during those times, you will no longer have control.  Therefore, it is not only in your children's best interest -- but it is to your own advantage to make sure that you and your ex- are communicating when it comes to parenting.

Co-parenting doesn't mean that you and your ex- need to be friends.  You just need to be able to communicate in a business-like manner for the purpose of making decisions affecting your common children.  Your communication should be direct and to the point.  No sniping.  No angry comments meant to hurt the other's feelings.  Stick to the matter at hand.  Don't bring up tangential issues that have little or nothing to do with the children.  By focusing on the issue before you, and keeping the children in mind, you will be able to communicate effectively, and the children's needs will be met.  Eventually, all of the emotion arising from the divorce will fade and you will find it much easier to deal with each other -- but the time to start working on communication is now.  It's hard, I know, but it is certainly worth the effort  The end result will be children who feel safe, secure, happy, and loved.

An important part of successful co-parenting is sharing information about the children with the other parent:  "Sally came home from school today with a fever";  "Billy is in a play next week in Ms. Hollister's classroom";  "Meagan has a dentist appointment on Thursday"; "Justin's high school report card came out yesterday - here's a copy."  Sharing information is easy.  If you don't feel comfortable talking on the phone, then you can do it by mail, email, or a text message.  Sharing information allows parents stay on the same page, and it helps to assure that the children have two parents who are both involved in their lives. 

One of the biggest challenges of co-parenting is when a divorcing couple has very different parenting styles.  This is not only a common problem, but I'd venture to say that it is the case in the majority of divorces (and marriages, too).  "She's too strict."  "He's a Disneyland dad."  "He doesn't supervise the children like I do."  "She's too controlling with the children."  "He won't let the children be children."  "She doesn't set limits."   The fact is that there is no one right way to parent.  You will have to get used to the idea that when the divorce is final, there will be blocks of time when the children are alone with the other parent.  Co-parenting does not mean imposing your will on the other parent.  Attempting to do so will lead to disagreements and anger, and will likely be futile in the end.  But by communicating respectfully and effectively, you can share ideas and avoid many misunderstandings and problems.  Co-parenting may sometimes involve respecting the other parent's right to do things her/his way when the children are in her/his care.  Obviously, if your child is being abused or neglected in the home of the other parent, then it is your duty to take the necessary measures to stop it.  But where the issue is simply differing parenting styles, you should try to cooperate to the best of your ability and be as consistent as possible; and you may need to let the children know that the rules at Dad's house are slightly different from those at Mom's. 

Over the years, I have found that "Post-Divorce Counseling" can be very helpful.  This is not marital counseling, and it is not therapy.  Rather, post-divorce counseling consists of both parents meeting together with a counselor (such as a child psychologist or child-development specialist) on a quarterly basis, or every six months, or once a year, or only as-needed -- in order to discuss issues involving the children.  In the sessions, the parents can bring up any concerns they may have, discuss any problems the children are experiencing, and examine different solutions with the help of an expert.

Co-parenting after divorce is an ongoing process.  It can be difficult and sometimes frustrating.  As much as you might like to put the relationship with your ex-spouse behind you and move on following a divorce, you have to realize that the two of you share a child.  You always will.  And by communicating and co-parenting, you will increase the odds that your child -- this person whom you both love -- will grow up to be  a happy, productive, and well-adjusted adult.



Gary Frank has been a well-respected Custody and Family Law Attorney, and a Family Mediator, in the Phoenix, Arizona for more than thirty years.  The Law Office of Gary J. Frank P.C. handles a wide array of family law issues, including divorce, custody, modification actions, paternity and maternity cases, and other matters involving children and families.  If you would like a consultation, please do not hesitate to call our office at 602-383-3610; or you can contact us by email at gary.frank@azbar.org or through our web site at www.garyfranklaw.com.

Friday, November 11, 2011

FAILING TO PROTECT CHILDREN FROM ABUSE IS WRONG

The news came this week that Penn State coach Joe Paterno, the winningest coach in college football, has been fired for failing to call the police when he learned that one of his assistant coaches had molested a young boy.  The news was shocking.  Paterno, who is known not only for winning but also for the high percentage of his players who graduate, is among the most respected coaches in the history of football at any level.  After he was fired, football experts and fans across the country came to his defense.  Students at Penn State came out by the thousands to show their support and rioted in the streets.  And I'm thinking:  "Has the world gone crazy?" 

Paterno leaned of the sexual abuse from a graduate student and former football player who witnessed the assistant coach raping and sodomizing a young boy in the locker room shower.  The graduate student never called the police.  Instead, he walked away.  It was not until the following day that he reported the incident to coach Paterno.  Paterno listened to the eye-witness account, and he never called the police.  He merely reported the matter to his superior; and that person ultimately reported the sexual abuse to the University President.  Unbelievably, the President never contacted the police.  Nobody did.  And the criminal was allowed to walk free.  Not surprisingly, he continued to molest children.  In the end, more than eight young boys were his victims, and many more will likely come out of the shadows in the months to come. 

I am a football fan.  I am also a parent.  Penn State's reaction to a first-hand account of sexual abuse sickens me.  From the graduate student, to coach Paterno, and all the way up the food chain to the University President, people who might have helped save a child elected not to do so.  Instead, they callously turned away.  While innocent young boys' lives were being ruined, each and every one of these people were too concerned with their own selfish interests to really care.  As a result, the abuse continued and more lives were destroyed.  Would Paterno have looked the other way if it was his own grandchild being raped in the shower?

Children are incapable of protecting themselves from adult predators.  Each of us has a duty to act decisively when we believe that a child is being abused.  You do.  I do, too.  We all do.  Once Joe Paterno learned that his assistant coach had molested a child, he had an affirmative duty to contact the police.  Not to pass.  Not to punt. Now his stellar 61 year career is over and his reputation is sullied.  There are hoards of people across the country who are rushing to come to his defense.  But who will defend the children?


Gary Frank is an attorney and a children's advocate with over thirty years experience in handling custody and child abuse cases.  He was an appointee to the Governor's Task Force for Prevention of Child Abuse; and he received a Volunteer Attorney award from the Maricopa County Bar Association for his efforts to protect an abused child, after having been asked by a judge to step in and represent the child in a Superior Court custody and dependency case.  If you are in need of a consultation, please do not hesitate to call our office at 602-383-3610; or email us at gary.frank@azbar; or to contact us through our web site at http://www.garyfranklaw.com/.

Tuesday, November 8, 2011

GRANDPARENTS HAVE A LEGAL RIGHT TO VISITATION UNDER ARIZONA LAW

The United States Supreme Court has held that parents have a fundamental constitutional right to control child rearing. Under Arizona law, a fit parent is presumed to be able to make decisions which are in his/her child's best interests, and the courts will stay out of the decision-making unless it is clear that the parents' decisions could be damaging to the child.

However, Arizona Revised Statutes, Section 25--409 gives a judge the right to intervene and order visitation between a child and her/his grandparents (or great-grandparents) -- even over the objection of the parents -- so long as the grandparents can meet the standards delineated in the statute. Basically, a grandparent must be able to prove that visitation rights would be in the best interests of the child and that 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 (i.e., the parents location has not been determined and the parent has been reported as missing to a law enforcement agency); or

3. The child was born out of wedlock.


In determining the child's best interests the court shall consider all relevant factors, including:

a.  The historical relationship, if any, between the child and the person seeking visitation;

b.  The motivation of the requesting party in seeking visitation;

c.  The motivation of the person denying visitation;

d.  The quantity of visitation time requested and the potential adverse impact that visitation will have on the child's customary activities; and

e.  If one or both of the child's parents are dead, the benefit in maintaining an extended family relationship.


If you are being unfairly deprived of contact with your grandchild and would like to learn more about your rights, then please do not hesitate to call our office for a consultation.


Gary Frank is a Family Law Attorney with over thirty years of experience in dealing with grandparents visitation / custody matters, and advocating for the rights of children.  You can reach us by telephone (602-383-3610), email (gary.frank@azbar.org), or through out website (http://www.garyfranklaw.com/).  We'd be happy to hear from you.


Wednesday, October 19, 2011

"DO'S" AND "DON'TS" FOR DIVORCING PARENTS


I think most divorcing parents would agree that the children are their number one priority.   But, in the midst of a marital break-up – when it feels like your life is coming apart at the seams – keeping the children out of the middle of your dispute can be a real challenge.   Your anger toward your partner may be justified.  Your fear of the future may be real.  But how do you keep those emotions from seeping into the minds of your children and coloring the way they view the world?  Children whose parents are divorcing are frightened and anxious enough as it is, without having to be burdened by the complex emotions that their parents are going through – emotions that the children may not be mature enough to process in a healthy manner.  Children need reassurance.  It is certainly alright to let them know that you are sad, but they need to know that you will be able to deal with your sadness and that things will be ok.  They need to know that their parents still love them and will be there for them.    

Here are a few important “Do’s” and “Don’ts" for divorcing parents –

Don’t:

1.              Don’t put down or badmouth the other parent to the children;

2.              Don’t grill the children for information about the other parent;

3.              Don’t use the children as messengers to deliver information to the other parent;

4.              Don’t ask the children to choose between  parents (“Who would you rather live with, me or your mother?”); and

5.              Don’t make the children feel as though they are responsible for taking care of you.


Do:

1.              Tell the children that the divorce is not their fault;

2.              Let the children know that they are loved by both parents;

3.              Talk to the children about the divorce in an age-appropriate way, being careful not to share information that would hurt, pressure, or cause them to fear;

4.              Assure the children that although some things (like the living arrangement) may be changing, they can still count on their parents to take care of them and make important decisions for them; and

5.               Let the children know that it is ok for them to love the other parent.

Children can survive a divorce and grow up to become well-adjusted, productive adults; or they could suffer long-term negative consequences.  Much will depend upon your approach to parenting during this difficult time.  Even in the midst of a divorce, your love and reassurance will go a long way in giving your children the gift of a happy childhood and a healthy life.


Gary Frank is an Arizona Family Law Attorney with over 30 years of experience in handling divorce, custody, and all other matters relating to children and families.  If you are in need of a consultation, please contact us today by calling 602-383-3610; through our website: www.garyfranklaw.com; or by email at: gary.frank@azbar.org.
 

Tuesday, August 23, 2011

A ONE-TIME CONSULTATION WITH AN ATTORNEY CAN REALLY HELP

Filing for divorce on your own can be overwhelming.  Wading through the court-approved forms may be confusing and is often an exercise in futility.  What are my legal rights? What should I ask for? How does the court process work?  How do I know I'm doing this correctly?  There is so much at stake:  Division of property and debts, custody, parenting time, child support, spousal maintenance.  Handling any one of these issues improperly could mean the difference between a future of relative comfort or years of suffering.  When the divorce is done, it's done.  You have one chance to get it right.  Undoing a mistake is difficult and, sometimes, impossible. 

Document preparers can help you fill out paperwork but they're not trained in the law.  They're prohibited from providing legal advice.  Lawyers, on the other hand, have the benefit of many years of legal training and continuing education.  They are well-versed in the law; they understand the divorce process and can help you understand what is best for you.


But what if your divorce is simple, or you just can't afford ongoing legal representation?  Even if you've decided to represent yourself, you can still benefit from an attorney's advice -- and chances are that the expense is less than you imagined.  You can use an attorney as a counselor, an adviser, a guide to help you through the legal process.

A one-time consultation with an attorney is relatively inexpensive, and it can help tremendously.  In a single meeting, the lawyer can assist you in filling out the paperwork.  He or she can help you understand your legal rights, and explain what you need to do to request a hearing, obtain financial information, or get a trial date.  The lawyer can formulate a game plan, answer your questions, and help you navigate through the sticky and sometimes complicated issues involved in a Family Law case.  Don't just assume that you can't afford legal advice.  Call for a one-time consultation.  You may be surprised at how affordable it is -- and how much it helps.




Gary Frank is an Arizona Family Law Attorney with more than 30 years of experience in handling cases involving divorce, custody, parenting time, child support, spousal maintenance, division of property, grandparent and non-parent rights, and all other matters relating to family law.  If you would like a consultation, feel free to contact us at 602-383-3610 or by email at gary.frank@azbar.org.  To find out more about our firm, take a look at our website at www.garyfranklaw.com.

It's easier than you may think, and less expensive, too.  

Friday, July 22, 2011

WHY IS IT SO HARD TO DETERMINE SPOUSAL MAINTENANCE?

I’ve said it before, and I’ll say it again: Spousal Maintenance is the greyest of grey areas in Family Law.  If you ask an attorney “How much alimony will I get in my divorce?” and he gives you a definitive answer – get up and run out of his office – and don’t look back! 

The fact is that Arizona law does not provide any definitive answers or formulas that the courts can use to determine spousal support.  Rather than a formula, Arizona Revised Statutes, Section 25-319 contains a list of factors that a judge can consider in deciding the amount and duration of spousal maintenance – or whether it should be paid at all.  But not one of those factors tells you “how much” or “how long.”

For child support, the courts use a standard set of guidelines which makes calculation a relatively simple matter.  Plug in the numbers, and the child support calculator will pop out a child support amount.  However, there are no generally accepted guidelines for spousal maintenance.  When such guidelines did exist most judges refused to use them (and for good reason - they just didn't seem to make sense).  Ultimately they were thrown out altogether.  Now, in determining the amount and duration of spousal maintenance the Court looks to the factors contained in the statute.  As a result, decisions can vary widely depending upon the numbers, the facts and circumstances, and even the jurist who is deciding the issue.

The prevailing view in Arizona is that spousal maintenance is intended to promote transition to financial independence.  This is called “Rehabilitative” spousal maintenance.  In most cases in which spousal maintenance is awarded, support will be ordered for a specific period of time so that the receiving-spouse can obtain the education, training, or experience necessary to increase her/his income to a level which will enable that person to be self-sufficient. 

Under certain circumstances, the Court may award spousal maintenance for an indefinite period of time, instead of a fixed term.  Some people refer to this as “lifetime” spousal maintenance.  But these cases are the exception rather than the rule.  They are generally limited to situations involving long-term marriages in which the spouse seeking support lacks a work history and/or is of an age where she/he can never be expected to become self-sufficient.  An indefinite award of spousal maintenance may also be justified if a spouse is disabled and incapable of working after the divorce. 

Where one spouse has sacrificed by working to help support the other while he/she obtained a professional degree (such as in law or medicine), and the marriage ends before the economic benefit is realized, it is not uncommon for spousal maintenance to become an issue.  The Arizona courts have held that an education is not community property subject to division in a divorce.  However, the supporting-spouse’s sacrifice, the other spouse’s educational degree attained during the marriage, and the potential for greater earning capacity can all be considered as factors, along with the others in the statute, in determining spousal maintenance.

With no guideline for calculating spousal maintenance, a judge is left to base her/his decision on the factors contained in the Arizona statute.  In determining how much support is appropriate, the courts often employ a “needs-based analysis” by looking at the requesting-spouse’s budget and examining the extent to which the monthly expenses exceed income.   A determination of how long the payments should be made will depend on the length of time the parties were married, their standard of living, how long it will take the spouse receiving maintenance to become self-sufficient, and the other factors listed in the statute.

There is no hard-and-fast rule for determining the amount or duration of spousal maintenance.  The Court makes that decision on a case-by-case basis using the list of factors contained in Arizona Revised Statutes, Section 25-319.  Because this is one of the greyest areas in Family Law, a proper presentation of evidence in the courtroom is essential -- in fact, it can be the difference between years of financial security . . . or no support at all.


Gary J. Frank, is an Arizona Family Law Attorney and former Judge Pro Tem with over thirty years of experience in dealing with spousal support and property division issues in divorce cases.  He also has many years of experience as a Family Law Mediator.  If you are in need of a consultation, please do not hesitate to contact us by telephone (602-383-3610) or by email through our website.  We look forward to hearing from you.


ARIZONA REVISED STATUTES, SECTION 25-319:

A.    In a proceeding for dissolution of marriage or a legal separation, or a proceeding for maintenance following dissolution of the marriage by a court that lacked personal jurisdiction over the absent spouse, the court may grant a maintenance order for the following reasons if it finds that the spouse seeking maintenance:

1. Lacks sufficient property, including property apportioned to the spouse, to provide for his or her reasonable needs;
2. 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;
3. Contributed to the educational opportunities of the other spouse; or
4. Had a marriage of long duration and is of an age that may preclude the possibility of gaining employment adequate to be self-sufficient.

B.    The maintenance order shall be in an amount and for a period of time as the court deems just, without regard to marital misconduct, and after considering 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 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 own 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 divorce to contribute to the future educational opportunities of their mutual children;
9. The financial resources of the party seeking maintenance, including marital property apportioned to that spouse, and his or her ability to meet his/her own needs independently;
10. The time necessary to acquire sufficient education or training to enable the party to find appropriate employment, and whether such education or training is readily available.
11. Excessive or abnormal expenditures, destruction concealment or fraudulent disposition of community, joint tenancy and other property held in common.
12. The cost for the spouse who is seeking maintenance to obtain health insurance and the reduction in the cost of health insurance for the spouse from whom maintenance is sought if the spouse from whom maintenance is sought is able to convert family health insurance to employee health insurance after the marriage is dissolved; and
13. All actual damages and judgments from conduct that results in criminal conviction of either spouse in which the other spouse or a child was the victim.

C.    If both parties agree, the maintenance order and a decree of dissolution of marriage or of a legal separation may state that its maintenance terms shall not be modified.

D.    Except as provided in subsection C of this section or § 25-317, subsection G, the court shall maintain continuing jurisdiction over the issue of maintenance for the period of time maintenance is awarded.

Monday, May 30, 2011

WHY FEAR & ANGER ARE YOUR WORST ENEMY IN FAMILY COURT

In my thirty-plus years as a Family Law attorney, I have found that the predominant and most destructive emotion among parties to a divorce or custody case is FEAR

Fear is a primal human emotion.  It comes into play when we feel threatened – and when a marriage is crumbling and people are considering divorce, there is plenty to feel threatened about:  “How am I going to survive without my spouse’s income?  Do I have to give her half of my money and property?”  “Will he be able to take proper care of the children when I am no longer there to supervise?”  “Who gets to stay in the house?”  “What will happen when my spousal support ends?” . . .   

It’s no wonder why people are fearful – when a marriage is unraveling, both the husband and wife face a scary and uncertain future, and so do the children.  Add to that the adversarial nature of a court proceeding, and you have a very combustible mix.  All it takes is one little spark to ignite a raging fire.

When people are feeling out of control and not communicating (as is the case with most divorcing couples), the fear that is building up inside them can easily morph into another human emotion – ANGER – and that anger can manifest itself in any number of ways:  Discussions can deteriorate into shouting matches; a spouse can “shut down” and become unwilling to talk; a person can become obstinate and unreasonable; or one spouse may seek to hurt or punish the other.  Anger can lead to territorial battles over money or property, or even time with the children. 

We are all human, and these responses to fear are certainly understandable, but they are unhealthy and can lead to contentiousness and long-term problems.  I’ve seen it a thousand times:  An angry spouse runs out and gets an attorney to use as a “hired-gun,” with the goal of inflicting maximum damage. -- The other spouse retaliates by bringing in their own “hired-gun.” -- And before they know it, the parties are waging an all-out litigation war, with money spilling to the ground like water from a barrel shot full of holes.  In a war like that, nobody wins.  Often, given the parties’ seething anger and lack of communication, the stage is set for a series of future battles, where the former husband and wife return to court over-and-over again, during the course of many years, to re-litigate issues involving custody of children, or parenting time, or support.  Hard-earned money that could have been used for retirement, or the kids’ college education, now goes to pay attorneys in an endless war of attrition.

A divorce may include very complicated issues, such as custody; parenting time; child support; alimony; division of property and debts; appraisal of real estate; or valuation of businesses, stock options, and retirement plans – just to name a few.  Working through these types of issues takes patience and emotional intelligence.  It takes a willingness to put aside fear and anger and address the needs of the parties and the children in a calm, business-like manner.

As I see it, the job of the attorneys in a divorce case is to help the parties carefully untangle the twisted web of issues involving custody, support, property division, and finances without ripping the fabric of "family" (the children will still have two parents, even after the divorce is finalized).  Where children are involved, the lawyers’ primary responsibility is to help the parents build a bridge so that when the divorce is over they will be able to communicate effectively for the benefit of the children.  If the divorce does not involve children, then our job is to find a way to divide assets and debts in a manner that leaves both parties as financially intact as possible.  Obviously, the lawyers cannot accomplish these goals without a buy-in from both parties.  If their actions are ruled by fear and anger, then they will be unable to make responsible decisions, and settlement discussions may be out of the question.  In representing clients over the years, I have seen instances where a party or his attorney elects to take a “slash-and-burn” approach.  When that happens, my job is to aggressively protect and defend my client’s interests.  That means getting tough.  However, even in the midst of the most hotly contested legal dispute, it is in everyone’s best interest to keep the door open to reasonable settlement negotiations – because, in the end, it is the client’s life, and the client’s future, that are at stake – and, in too many cases, when the battle is over and decisions were dictated by fear and anger, the only winners are the lawyers.  But that doesn't have to happen.  Take charge of your emotions.  Keep your cool.  And approach divorce as if it were a business negotiation.  If you can do that, then you are in control.


Gary J. Frank, is an Arizona Family Law Attorney and former Judge Pro Tem with over thirty years of experience in dealing with divorce, custody, parenting time, support, and all other issues in Family Court.  He also has many years of experience as a Family Law Mediator.  If you are in need of a consultation regarding divorce, child custody, or any other area of Family Law, please do not hesitate to contact us by telephone (602-383-3610) or by email through our website.  We look forward to hearing from you. 

Monday, May 2, 2011

ALIMONY IS A TWO-EDGED SWORD -- IT CUTS BOTH WAYS

Not long ago, the notion of a wife being ordered to pay spousal maintenance (alimony) to her husband in a divorce case would have been laughed at.   Men paid alimony, not women.  But that was then, and this is now.  Things are changing fast.

Throughout most of our country’s history, opportunities for women were limited.  No matter how bright, talented, or motivated they might be, women were allowed only one socially acceptable career path – motherhood.  Society was rife with prejudice against women, and barriers were firmly established everywhere -- in education, in the business world, and in the social structure – to keep them in their place.  With these massive societal obstacles, it took almost a superhuman effort for any woman to obtain an education and forge a successful career.  Most women in the 1950’s and 60’s were stay-at-home mothers, and not always by choice.  If a woman wanted to work, she was likely to be offered a low-paying job, at best.  Not many careers were open to women.  They could become a nurse, a teacher, or a secretary – but a career as a doctor, a school principal, or a business executive was almost unattainable, regardless of the woman's intelligence, experience, or qualifications.  A “glass ceiling” was erected and any individual woman who tried to break through it did so at her own peril – she was likely to get sliced to pieces in the effort.

The concept of alimony grew out of a society in which men had the freedom to work and women were bereft of opportunities.  When a divorce occurred, it was common that the wife found herself with little education, training, or work experience, and no means of providing for herself financially.  Without spousal support, a divorced woman could fall from a high standard of living to a life of abject poverty - and many did.  Laws providing for spousal support (referred to as alimony or spousal maintenance) were enacted to help soften the blow. The purpose of the law was to give a spouse sufficient time in which to obtain the education, training, or work experience necessary to be able to adequately support herself.  In rare instances, a spouse was awarded “lifetime” support, but this was usually limited to cases in which there was a long-term marriage, an unusually high standard of living, and/or a disability.  

Until fairly recently, the concept of a man being awarded spousal maintenance was almost unheard of -- but society is changing, and so are our laws.

Arizona's spousal maintenance statute can be found at A.R.S., Section 25-319.  It is purposefully worded in a manner which is gender-neutral, stating:

"In a proceeding for dissolution of marriage or legal separation . . . the court may grant a maintenance order for either spouse . . . "

While the "glass ceiling" hasn't been completely shattered, it is coming down quickly.  Women have made great strides in business, education, politics, sports, and in the social structure at large.  In fact, in 2010 more than 57% percent of college students in the U.S. were women.  This means that the economic and political clout of women is growing and will continue to grow.  Equality for women in every facet of our American society is now a foregone conclusion.  (If you are the parent of a daughter -- or a son -- you should welcome this change.)

In 2011 it is not uncommon for a wife to be earning as much, or more than, her husband.  It is not strange anymore to see a "stay-at-home father" taking care of the children while his wife goes off to work to support the family.  And, as a result, it is no longer unheard of for the Court to order a wife to pay alimony to her husband following a divorce.

A.R.S. 25-319 provides a list of factors that the Court is required to consider in determining the amount and duration of spousal maintenance. Some of those factors are:
  • The length of the marriage;
  • The family's standard of living during the marriage;
  • The comparative financial resources of the spouses, including their earning abilities in the labor market;
  • The contribution of the spouse seeking support to the earning ability of the other spouse;
  • The extent to which the spouse seeking support has reduced his or her income or career opportunities for the benefit of the other spouse;
  • The age of the spouse seeking support;
  • The physical and emotional condition of the spouse seeking support;
  • Whether a spouse lacks sufficient resources to provide for his/her reasonable needs;
  • Whether the spouse seeking support is able to be self-sufficient or lacks the earning ability to be self-sufficient;
  • The time necessary to acquire sufficient education or training to enable the spouse seeking support to find appropriate employment, and whether such education or training is readily available.
There was a time in which one could expect the "spouse seeking support" to almost always be the wife. That era is coming to a close. Society is becoming more fair, balanced, and equal.  That's a good thing. 

In the future, when two parties divorce and the spouse in need of support happens to be a man, then spousal maintenance will be awarded to him.  And that's a good thing, too.


Gary Frank has handled Spousal Maintenance issues, for both women and men, in Family Law cases for over thirty years.  He is well acquainted with complex issues in divorce cases, having dealt with them as a litigation attorney, a mediator, and a judge pro tem in the Maricopa County Superior Court.  If you are in need of a consultation regarding the issue of spousal maintenance, or any other Family Law matter, please give us a call at 602-383-3610, or contact at us through our web site.  We would be happy to talk to you.

   

Wednesday, April 6, 2011

NEW BILL WOULD HURT SPOUSES OF SERVICEMEN & WOMEN

There's a new bill floating around the legislature - SB 1373 - which will significantly change Community Property Law in Arizona by eliminating all military assets and benefits from community property division in divorce cases.  We all want to protect the interests of the courageous men and women in our armed forces, many of whom are sent overseas to fight for our freedom.  But we shouldn’t ignore the fact that their sacrifice is often matched by a spouse who remains at home to raise the children, pay the bills, work to make ends meet, keep the family afloat, and worry each and every day about her (or his) loved-one's safety.  By doing their part, these selfless spouses are also helping to protect our American way of life.

Marriage is a partnership.  Each spouse plays a role.  A stay-at-home parent who cares for the children is as important to the family as a working parent who provides the financial support.  That's the reason behind "Community Property Law," which essentially gives each spouse an undivided 50% interest in all property and other assets acquired during the marriage (including retirement and military benefits).

This proposed bill (SB 1373) goes too far in its effort to protect our military by completely ignoring the sacrifices made by the brave spouse who stays behind.  The effect of this law will be that if the parties divorce (even after a long-term marriage) the non-military spouse will have no interest at all in the retirement benefits or other military assets of the spouse who served in the armed forces.  Often, these benefits constitute the lion's share of the marital assets.  If this law passes, then a divorce could leave the non-military spouse -- who has also served our country by providing care and support for a military family -- with nothing.  For our legislature to completely overlook the important sacrifices made by the wives and husbands of servicemen-and-women would be a grave injustice.  That's why I oppose SB 1373.  If you have strong feelings about this bill, one way or the other, please contact your elected representative.

Sunday, February 20, 2011

SINGLE MOTHERS DESERVE PRAISE

Today, traditional families constitute barely one in five households in the United States, according to census statistics.  And nearly 40% of all births are to unmarried women.  Yet a recent study by the Pew Research Center for Social and Demographic Trends shows most Americans still view single mothers as detrimental to society.

The poll asked 2,700 people about their attitudes regarding modern trends that affect the traditional family:  This included people’s attitudes about unmarried parents raising children; gay couples raising children; single mothers; partners living together outside of marriage; working mothers; interracial marriage; and women who never bear children. 

The responses fell into three nearly equal groups.  Approximately one-third said that the new trends had no impact on society or are positive.  A second group (one-third) considered most of the changes harmful to society.  The third group (one-third) tended to accept the changes, except for single motherhood.   More than 98% of those whose responses fell within the second and third groups said that single motherhood is bad for society.

This view is surprising and illogical.  It lays the blame at the feet of the wrong person.  It isn’t single mothers who are bad for society – if anything, it is absentee fathers; it is parents who abuse or neglect their children; it is teens who weren’t taught how to avoid pregnancy; it is mothers and fathers who don’t set reasonable limits for their children or who are too busy to properly supervise them; or parents with drug or alcohol addictions.  It is parents to fail to provide the love, care, attention, and support that every child needs

There many reasons for the modern shift away from the traditional family, and not all of them are bad.  There was a time (in the not-to-distant past) when divorce was considered shameful; when interracial marriage was illegal; when gay marriage was unthinkable; when a man and woman living together was considered immoral; when “blended” families were considered abnormal and unhealthy; when children born out of wedlock – through no fault of their own – were referred to as “bastards” and forced to live lives filled with derision and prejudice.  Society’s views have changed over the years, and we have become more tolerant.  Yet, according to the Pew Research Center study, Americans continue to see single mothers as being bad for society.  Why?     

Many single mothers are not single by choice.  Some are widowed.  Some are divorced.  Some are raising children alone because the father has shirked his responsibility and abandoned the family.  Shouldn’t the blame in many of these cases be placed where it belongs – on absentee fathers

Single mothers are doing what every parent should do – they are standing up and accepting responsibility.  They are caring for, and providing for, their children – even if they have to do it alone.  This is a courageous and selfless act.  Single mothers deserve our praise, not our condemnation.

Then there is another category of single mothers:  mothers who elect to become single parents by choice.  Not everyone finds, or even wants, a life-partner.  But being an excellent parent does not depend on having a partner.  It depends on love, commitment, a willingness to spend time with the children, to put their needs ahead of your own, and to work hard to assure that those needs are met. 

Some people haven’t found a soul-mate and elect not to settle for marrying just for the sake of being married.  Yet they have so much to offer a child – love and devotion, a stable home, an extended family, a bright, happy future.  These single parents are not the cause of society’s problems.  Not by a long-shot.  Rather, in some small way, they might be part of the solution. 

In Arizona, for the third year in a row, certain legislators are trying to pass a bill which would make it more difficult for single parents to adopt children.  Under this law, a married couple would be given priority to adopt just by virtue of the fact that they are married.  Thus, a single woman who is, for instance, a successful pediatrician and wishes to adopt a child will be declined in favor of any married couple, even if that couple is less responsible, less stable, and not very compatible.  This makes no sense.  There are thousands of children in foster care waiting for adoption.  Many of those children have special needs.  In the past, adoptive placement of children with single parents has resulted in positive outcomes.  But if this law passes, single people will be shoved to the back of the line; many will remove their names from the list of prospective adoptive placements, or they will simply not sign up to adopt.  This will lead to children being forced to wallow in the foster care system – children who would otherwise have been placed in stable, loving homes.   

Some might argue that a child is best served in a home with a father and mother.  But how many people do you know who are married to a partner that is too busy to help with the children; who ignores them, or – worse yet – mistreats them?  How many parents are forced to shield the children from another parent’s drug problem, or alcoholism, or anger.  How many parents are unable to make responsible decisions without interference from a spouse who is less knowledgeable or doesn’t place the children’s needs as a top priority?  (This is the cause of countless divorces and, in the end, a child in this situation is better off with one parent having the power to make responsible decisions.)  


Single parents deserve our respect and admiration.  They are not the cause of the breakdown of the traditional American family.  Instead, they are the ones who stood up and shouldered the difficult responsibility of caring for the children.  One cannot legislate the perfect family.  Maybe there are many types of “perfect” families.  And what is a perfect family, anyway?  It is any family where a child receives stability, support, encouragement, and unconditional love.

Gary Frank has thirty years of experience as a Family Law Attorney and mediator, dealing with divorce, custody, and all matters pertaining to families and children.  If you are in need of a consultation, you can contact Gary by telephone at 602-383-3610, through our website, or by email at gary.frank@azbar.org.