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.