Be Prepared in Advance to Experience a Life Impacting Event

WHY DO I NEED AN ATTORNEY TO HANDLE MY CAR ACCIDENT ?

Thu, 29 Sep 2022 20:42:24 GMT

Will I get Reasonable Compensation without an attorney?

Studies have shown that persons injured in an automobile accident will make more compensation with an experienced lawyer than those who choose to represent themselves.

Working with a car accident lawyer can help you receive reasonable compensation that may exceed the amount that the insurance company would offer you on your own. An automobile injury attorney will help you present every detail about your case to the insurance company or a judge. He or she might bring up information that you would have missed if you did the negotiations yourself.

Reimbursement for your car repairs and medical bills will almost always be determined by the amount that you paid. The lawyer will help you negotiate an adequate settlement for pain and suffering.

It’s the insurance company’s job to offer you the lowest acceptable amount for a settlement. That’s how the organization makes the most of their own income and profits. An insurance adjuster may try to prove that you underwent unnecessary treatment. They may attempt to say that you were able to go to work.

A lawyer will help you take the measures that are necessary to protect yourself if you’ve been injured in an auto wreck. You’ll need to document everything related to the accident. When a doctor can vouch for missed work days and the treatment that you have received, you should be able to recover the money that you’ve lost.

If you want to maximize your settlement, you’ll need to do more than submit a claim through an insurance company. An attorney will help persuade the insurance company that they should look into the matter further. A lengthy investigation may be initiated, and the personal injury lawyer will negotiate the settlement with the insurance company.

You don’t always have to file a lawsuit to get a settlement payout for whiplash or another auto injury. More often than not, the insurance company and your attorney will reach a suitable agreement. If they don’t, you may need to take the matter to court. A car wreck attorney can answer your questions about suing after a car accident.

BE PREPARED IN ADVANCE TO EXPERIENCE A LIFE IMPACTING EVENT

Fri, 09 Sep 2022 23:47:55 GMT

Estate Planning is so important as we grow older, make sure your affairs are in order.

As we grow older and/or when we experience the loss of a loved one, it is not unusual to ask oneself: “How would I spend my last days?”

Would it be spending time with loved ones and talking about all the memories of life lived so far, or would it be getting everything in order?

Sadly, too often people are scrambling to ensure all is in order and the final days are a whirlwind of organizing for the survivors. In between the process of trying to learn all that needs to be accomplished, let alone understand, there may be doctor appointments, hospice coordination, and family that suddenly wants to visit after years of no contact.

In addition to yourself, what do you do about your loved ones? Do they know what to do when they are about to be financially responsible for everything? Financially and emotionally removed from you, do they know how to go on without you? Especially if they relied solely on you to make decisions or handle matters or if you always shared decisions together?

Make no bones about it, this is meant to shake you into action. It is meant to get you to react and meet with your estate planning attorney. This person can review your situation and make sure that all is in order prior to learning of a life impacting event. Things can then be handled, at your leisure, in an un-rushed and calm fashion with plenty of time to think things through and get everything in order. In so doing, should you be in an unforeseen accident or should you get word that time is running out, you can choose to spend it in the way that leads you through your loss where grief turns to memories, tears of sadness to contentment of a life shared, and the comfort that your family can move forward through the hurt to the confidence that a future does exist in your absence.

If you need to act, please do so. If you experienced it yourself, tell others not to wait. Clip this article and share. Forward from your computer. Don’t be the one who said, “I should have been better prepared.” We're here to help you plan ahead and feel more confident about your family’s future.

TRAFFIC FATALITIES AND SERIOUS INJURIES ON THE RISE IN PHOENIX

Wed, 20 Jul 2022 22:58:40 GMT

Phoenix is the third highest in the nation for overall traffic fatalities.

Coming out of lower numbers in 2020 due to the pandemic, there were eight fatalities involving cyclists, 97 involving pedestrians and 127 involving motor vehicles in Phoenix during 2021. This is a twenty-five percent increase from the 2019 pre-pandemic numbers. According to Kini Knudson, director of the City of Phoenix Street Transportation Department, Phoenix is the third highest in the nation for overall traffic fatalities, behind only Los Angeles and Houston.

Practically every day we see red light runners going well after the light has cycled against them. Speeding is up, compounded by a lack of police officers on our City’s streets. Drag racing and drivers doing “donuts” in the middle of streets and intersections is increasing in frequency.

With these grim statistics, comes the need for better defensive cycling/walking/driving on our parts becomes more necessary. Just because you have the walk sign, do not assume that it is safe to enter the crosswalk. Just because you have a green light or arrow, do not assume that it is safe to proceed. Always, always, always look to see if you are able to proceed safely. Do not assume that others are going to stop. In fact, assume the opposite to keep you and your loved ones out of harms way.

Obviously, it is very important that we be careful, stay alert and drive defensively to watch out for ourselves and our loved ones. In this way, you will not be part of these growing statistics. If, however, you or a loved one are in an automobile accident, remember that we at Brown Accident Law are here to help.

Note: e-mail us today for your free glove box card about what to do if you are involved in an accident. In so doing, you will have a handy guide in each of your vehicle’s glove boxes about what to do when you have been in an accident.

IT'S THE NEW YEAR, QUIT PROCRASTINATING AND GET YOUR WILL DONE!

Tue, 11 Jan 2022 18:55:09 GMT

It's that time of year again ... starting fresh with New Year's resolutions galore!

In addition to that, the coronavirus pandemic has many people deeply concerned about their health and wondering what will happen to them and/or their loved ones if they contract the virus. For so many, the eventuality of death seems more real and more imminent than ever. Because of this, sales of online wills and legal documents have absolutely exploded over the past few months.

As a word to the wise, however, do not put your estate planning into the hands of others that may not help you, but may - indeed - hurt you in the end.

I’m a lawyer; so, obviously, I want people to use lawyers. But, most of all, I want people to understand the entire estate planning process so your inheritance passes to whom you want, as quickly and as inexpensively as possible when you are gone.

Beware of costly errors! Generally, people use these websites because they want to save money. That is a lousy reason to put the future of your loved ones at risk! What happens, often, is that you may save a few hundred dollars by creating an online will or trust. Then, your family has to spend thousands to go through the administration in probate court (often, when it could have been avoided altogether), or even worse, litigate because there is something wrong with the documents you found online.

Forms become outdated — fast! Another negative note for these online form services: It is very difficult for them to stay current with changes in state law. Every year, the legislature may tweak its laws governing probate, estates, trusts, advance directives and other important documents. If your form is outdated or is based on another state’s laws, the form will likely fail in court.

Attorneys are still open for business! My firm is still open for your estate planning

needs. We perform these essential services and we are always adapting to the current circumstances to meet our clients’ specific needs.

Quit procrastinating and get your Will and other estate planning documents in order.

LOOKING FOR A SIMPLE WAY TO PASS ON YOUR REAL ESATE TO LOVED ONES AFTER YOU ARE GONE?

Wed, 25 Aug 2021 00:20:23 GMT

Estate Planning

For years, the biggest stumbling block to your family members to avoid a probate action in court after you pass was the family home. Or any real estate for that matter.

However, since the relatively recent invention of a beneficiary deed, also ominously known as a transfer on death deed, there is now a legal and clever way to pass on your real estate to loved ones after death. And the best part, it allows your loved ones to skip the ugly process of probate.

Probate court can be a drawn out and costly affair where the court decides who gets the property after someone dies. As you will expect, this can take a few months plus a few thousand dollars in legal and court costs.

Now, with the properly executed and recorded beneficiary deed, you can leave your land to whomever you please and that person or persons does not usually have to file a probate action or get the court’s permission.

Even better still, since a transfer on death deed form only kicks in upon death, you will still have absolute control over your property after signing it - you are welcome to rent the property, refinance it or even sell it. If your beneficiary falls out of favor, you can always name another one by executing a new beneficiary deed. In addition, since your beneficiary has no legal rights or interest in your property until you die, they cannot encumber your property, nor is it able to be attached by your beneficiary’s debtors until they take over the title after you are dead.

As of 2017, twelve states had passed laws allowing the use of this deed - Arizona, Arkansas, Colorado, Kansas, Missouri, Minnesota, Montana, Nevada, New Mexico, Ohio, Oklahoma and Wisconsin.

Please feel free to make an appointment to discuss your estate planning so your wishes can be followed and your loved ones can legally avoid the need to file a probate action with court after you are gone.

DOG BREEDS THAT MAY BE RESTRICTED BY YOUR HOMEOWNERS INSURANCE COMPANY

Wed, 18 Aug 2021 18:36:02 GMT

Dog Breeds vs Homeowners Insurance

One of the most common home insurance liability claims comes from dog bites and other pet-related injuries. In 2020, insurance companies paid $854 million for nearly 17,000 dog bite and injury claims, according to the Insurance Information Institute (III).

Depending on the type of dog you have, you may have a harder time finding homeowners insurance that covers you in the event of a dog bite, according to III spokesperson Janet Ruiz.

Common homeowners insurance dog breed restrictions include:

Pit bulls
Rottweilers
German shepherds
Doberman pinschers
Alaskan malamutes
Siberian huskies
Chow chows
Akitas
Great Danes
Wolf hybrids

"It's important to keep in mind that each case is examined on its own unique merit, and some factors may make it more difficult to obtain insurance or file a claim successfully," Ruiz said. "For example, it may be a challenge to find home insurance liability coverage if your dog has a history of aggressive behavior or you've filed a claim for a dog-related injury in the past."

WHEN YOUR INSURANCE COMPANIES REFUSES TO PAY: COMMON ERRORS AND EXCLUSIONS

Wed, 21 Apr 2021 15:17:59 GMT

You have insurance, but for some reason your insurance company is refusing to pay up. Here are three common reasons why this happens.

One is you're doing something illegal. In some policies, if you are driving intoxicated or driving without a license, your policy will not cover you, even if you've paid for your insurance.

The next most common reason is that your policy has exclusions on it. There are a number of types of exclusions. For example:

Some homeowners insurance will exclude certain dogs, like pit bulls or Rottweilers. If you have an exclusion on your policy, and you have one of those type of animals, and they bite someone, your policy is not going to cover.

Also your automobile policy might have a particular individual - maybe there's someone in your family with a bad driving record - and they've excluded Uncle Harry. Well, if Uncle Harry's driving your car and causes an accident, your insurance is not going to cover it.

Also, a lot of policies exclude if you are driving for commercial reasons. So if you're picking up a little bit of money by driving for Uber or Lyft or Grubhub, you may need to get a rider on your policy, because you might be driving around without insurance.

The third most common reason why insurance doesn't cover is you've submitted your claim wrong, and this is oftentimes where an attorney can help you, because you may have submitted the claim, but it's not submitted timely, it's not submitted in proper form, or it's coded wrong by your doctors. These are the things that insurance companies love to use to decline your claim, but they don't explain how you fix it.

BEWARE OF ESTATE PLANNING DOCUMENTS DOWNLOADED FROM THE INTERNET

Wed, 21 Apr 2021 15:01:37 GMT

Some people, to save a few bucks, go online to get documents like wills, powers of attorney, and even trusts, and print them out themselves. This could be a very expensive mistake: Saving yourself a few hundred dollars now, in paying a lawyer to do the documents right, may cost your family thousands in probate and legal fees if things are done wrong.

Online forms oftentimes might be fine for whatever state they are written, but they might not fit for Arizona. Online forms also get outdated very quickly, so you really should see an attorney for your estate planning needs.

Also, another things that online forms don’t do is deal with you personally. They don’t explain how things work, how to get prepared for things, and find out what’s going on in your life. For example:

Do you need a simple form, or do you need a more complex form?

Do you pass your house to your children by a beneficiary deed, or do you do it by your will?

These things are important to talk to your attorney about, so that when you do pass, everything goes where you want it to go, simply, smoothly, and easily.

ESTATE PLANNING FOR 2021 AND DURING A PANDEMIC

Mon, 28 Dec 2020 23:01:22 GMT

Making sure you have your affairs in order

Like you, all of us at Brown Family Law Group are deeply concerned about the impact of COVID-19 on the well-being of our family and friends, our clients, fellow members of the legal community and other associates. We also recognize the unique challenges we are facing to keep moving forward during these unprecedented time.

Brown Family Law Group is fully operational and ready to help you now. We have implemented internal practices to mitigate threats to our employee’s health. Over 95% of our support requests are being handled remotely over the telephone and the internet. During these trying times, we offer remote support to our already existing clients, our former clients as well as anyone who may benefit from the services that we offer. In particular, we have witnessed a tremendous upswing in business in preparing Wills and Medical Powers of Attorneys, an area of law that Brown Family Law Group has always been involved in.

We can help you with your estate planning needs, which assists you with your more immediate concerns but also in your long-term family planning for the future. This includes budget-friendly Medical Powers of Attorney which gives authority to a loved-one or trusted friend in the case that you are no longer able to make decisions for yourself. We can establish your Last Will and Testament as well as Beneficiary Deeds to direct how you want your affairs to be handled without the cost need for any probate filing in court. General (Durable) Powers of Attorney and Living Wills are also some of the services that we provide.

It is important to remember that whatever this pandemic holds for our respective future’s, these services are something that every household should have. In other words, even if our fears and concerns turn out to be over-blown, all of these estate planning tools are something each of us should have in place.

Please feel free to reach out to us. We are ready to serve your needs. Together we can and will prevail.

Best regards, be safe and stay healthy in the new year!

ARIZONA PEDESTRIAN ACCIDENTS INVOLVING A MOTOR VEHICLE

Tue, 22 Dec 2020 17:39:28 GMT

Unfortunately, Arizona is one of the worst states in the Union regarding pedestrian accidents per capita every year, year in year out.

In pedestrian accidents, a lot of times people don't think about hiring a lawyer. But if you're not at fault, you can certainly talk to a lawyer and find out what your rights are.

If you're involved in an accident involving a pedestrian and a motor vehicle, make sure that you:

call the police,
take photographs,
get the names of witnesses, and
get medical treatment.

And by all means, call Brown Personal Injury Law. We can discuss with you, at no charge, what your rights are and what your possibility of recovering is.

This is the kind of case that we do quite often. In fact we have had two this past year involving pedestrians who were involved in accidents where a motor vehicle hit them due to the driver's inattentiveness when the pedestrian was in a crosswalk.

So again, call us at Brown Personal Injury Law; we'd love to talk to you, and there's no consultation fee.

DOG-BITE INJURIES IN ARIZONA: KNOW YOUR RIGHTS

Thu, 17 Dec 2020 18:18:38 GMT

Under Arizona law, if you are attacked or bitten by a dog, the law says that the dog owner is held strictly liable for the attack.

That means that they can't have an excuse or say that they didn't know that their dog was violent, or they didn't know their dog bit people.

If you're attacked by a dog, Arizona law requires the dog owner to take care of your injuries, which sometimes can be just a little bite, or it could be a serious accident where someone actually gets seriously hurt, scarred, or even killed.

I've handled cases in all those examples, and again please give me a call if you have any questions, if you've been attacked by a dog in Arizona, and let me know if I can help you. It's nothing personal against the dog, but you need to get your damages taken care of and your injuries fixed.

ARIZONA BICYCLE ACCIDENTS INVOLVING A MOTOR VEHICLE

Wed, 09 Dec 2020 18:42:23 GMT

Over the last several years, the number of accidents involving a motor vehicle striking a bicycle has been on the rise, and in Arizona especially so.

If you're involved in a bicycle-motor vehicle accident, there are certain things you need to remember.

First, you want to call the police, if you can, so that a report is taken.

Take lots of photographs of the accident scene, the vehicle, the bike.

Seek medical care.

And call our office for a free consultation.

Bicycle accidents sometimes can be under-investigated by the police. I've had two this year alone where the police officer put the bicyclist at fault, where it was not true, after we did a thorough investigation. And we were able to recover fully for our clients that were both involved in a bicycle accident, because of an inattentive driver.

Again, call Brown Personal Injury Law for a free consultation, and stay safe out there.

MOST UNUSUAL, BUT COMPLIMENTARY, REFERRALS

Mon, 12 Oct 2020 23:24:25 GMT

Referrals are the lifeblood of any small business, especially small law offices. Frankly, we could not survive without referrals as we do not advertise. We succeed by doing good work for people at reasonable prices and hopefully our firm name gets out by word of mouth.

Having practiced law for thirty years now, I have had referrals from a wide variety of sources. These sources include: current clients, former clients, family members, other lawyers in and out of town, members from my Church, other parents from my son's Boy Scout Troop, childhood friends, educators from my kids' schools and business leaders in the community.

After a couple of decades of experience under my belt, however, I did start getting referrals from what I - at first - thought was a very unusual source - the other party in a previous case! While I felt oddly unsettled by this source of referrals at first, I have grown to accept them as a compliment. For a person to have gone against me to now suggest to a relative or friend that they should use me as their lawyer is truly an expression of praise. In fact, I have been told by a number of these new clients that they were referred to me because they had heard that I was well prepared, honest, knowledgeable about the law and/or had a good control of the courtroom situation. Although somewhat humbling, I cannot help but to think: who was my adversary in the previous case, why were they not prepared, what do I do or did the other side not do?

Another growing referral source as I have practiced over the years, is from fellow attorneys. While understandable from colleagues that do not practice in my area of law, but I am dumbfounded by the growing number of family lawyers sending cases my way as well. Some are now retired or have stopped practicing in the family law area; however, a number of fellow practitioners will send cases that they know are unduly messy or complex as they do not want to handle such high stress action. Still others, do not want to go against a particularly aggressive or slimy lawyer on the other side but want to make sure that the person is in good hands. Whatever the reason, I find these referrals, albeit unusual, a complimentary act.

However, you find me, please feel free to give my office a call if there is anything that I can help you with in my areas of practice - personal injury , wills or probate .

COMMUNICATION IS ALWAYS KEY, ESPECIALLY DURING A PANDEMIC

Thu, 10 Sep 2020 00:35:28 GMT

Doing business in the midst of a pandemic is unchartered territory.

Despite the difficulties and concerns brought on by Covid-19, it remains each attorney’s primary ethical duty to protect the interests of their client. This essentially means to stay in regular and frequent contact with your clients and not let anything fall through the cracks.

Under the current circumstances, we at Brown Personal Injury Law as well as Brown Family Law Group recognize this duty includes an obligation that attorneys be “technologically competent” such that they can effectively communicate with our clients to achieve our clients’ objectives.

For these reasons, our firm has implemented safe communications platforms like Zoom, GoToMeeting a well as the good old fashion telephone whenever possible to keep our clients safe and secure. In addition, we utilizing secure resources to safeguard client confidences, and in countless other ways navigate the “virtual” hurdles to practicing law during this pandemic.

In this different world that we now find ourselves, an attorney’s failure to learn how to utilize technology to communicate safely with clients and rise to the challenge of practicing law remotely is tantamount to the client being without counsel. This will never happen at Brown Personal Injury Law or Brown Family Law Group.

Just give us a call with your injury law or estate document questions and you will see what full and competent representation means, even during these difficult times.

WHAT LEGAL DOCUMENTS DO MY ADULT CHILDREN NEED?

Mon, 20 Jul 2020 18:15:44 GMT

Adult Children and Legal Documents

Here’s a question that most parents don’t often consider: With adult children heading off to college and/or into the workplace, what legal documents do I need?

Upon reaching his or her 18th birthday, your child is legally an adult in Arizona and in most states. This means that you no longer have the right to make certain decisions that you always have made before and obtain information on your child’s condition. Yes, this means that as soon as your child turns 18, you no longer have dominion over them.

So let’s say - heaven forbid - your 19 year old goes off to college or work and is seriously injured? You call the hospital’s emergency room and you are told: “Sorry, due to HIPAA, we are not authorized to provide you with any information.” Similarly, your child in another part of the country, is unconscious in the hospital following an accident, and the doctor assigned to her/his recovery cannot discuss their care or course of treatments with you. Lastly, if your child is incapacitated for a period and you are not allowed to access their school or financial records.

For these reasons, as an estate planning attorney I strongly advise you to get these three simple documents before your child goes off to college and/or the workplace.

1. HIPPA Authorization Form. HIPPA, or the Health Insurance Portability and Accountability Act of 1996, is a federal law that safeguard who can access a patient’s private health data. Unfortunately, this means that a doctor or nurse may be prohibited from revealing health care information of your adult child. So this is why a HIPPA Authorization form, signed by your adult child and authorizing you as an authorized party, can give the ability to receive information from healthcare providers about your son’s or daughter’s health care status.

2. Medical Power of Attorney. A healthcare power of attorney is a legal document naming you to make medical decisions for your child if he or she becomes medically incapacitated. You can make decisions for your loved one when they cannot. It also enables you to talk to your child’s doctor when your child cannot.

3. General Durable Power of Attorney. You would also be wise to have a General Durable Power of Attorney in place if your adult child was ever incapacitated for any length of time. This document would allow you to manage bank accounts, pay bills, sign tax returns, apply for government benefits and assist your child in managing her or his financial affairs without having to become appointed as their conservator by the Court.

For basically $100 each, these critical documents are an essential monitor and to care for your child even after they are adults.

ARIZONA CAR INSURANCE MINIMUM LIMITS INCREASED ON JULY 1, 2020

Thu, 02 Jul 2020 00:05:33 GMT

Arizona’s minimum limit for auto insurance liability increased effective July 1, 2020. Senate Bill 1087 was passed by the Arizona legislature on May 27, 2019 and then signed into law by Governor Ducey on Friday, June 7th, 2019.

Prior to July 1, 2020, Arizona’s minimum limits of liability required by the state of Arizona was $15,000/$30,000/$10,000.

The new limits that will take effect on July 1st, 2020 will be $25,000/$50,000/$15,000. This means the minimum amount of coverage that a person is required to carry will increase and this is a good thing.

The first two numbers represent your “Bodily Injury Coverage” or what your insurance company will pay out if you are liable for an accident and you have to pay them for their damages. The new minimum coverage means that you will cover damages up to $25,000.00 per person and up to $50,000.00 total per accident (if more than one person was injured in the same accident).

The last number refers to the amount of property damage liability that is required at a minimum to be carried, or $10,000. This coverage helps to pay for any property damage that your accident has caused.

Why is this increase a good thing? For years, Arizona’s minimum limits has been the lowest in the country. Consequently, if you hurt someone and/or their property with the old $15,000/$30,000/$10,000 outdated coverage, you oftentimes would not have enough insurance to cover the hurt person. This meant, you could have what Arizona considered the required minimum coverage and the person could still sue you for above and beyond what you had for insurance.

For examples:

1) You hurt a person and they have to be taken to the Emergency Room by ambulance to be checked out. Even if the person was not seriously injured, the cost of an ambulance ride and a check-up with tests and x-rays easily exceeds $15,000 these days - and this does not cover follow up care or any possible surgeries or prolonged physical therapy! You now could have very significant exposure to your person assets and property.

2) Let’s say you seriously damage the other person’s vehicle. If your $10,000 minimum limit does not cover the repairs or replacement of the damaged vehicle, again you are exposed to out-of-pocket liability! In other words, don’t go hitting a Mercedes Benz, BMW or any car that’s five years or newer, if all you have is $10,000 in coverage.

NEW RULES REGARDING RETIREMENT WITHDRAWALS/LOANS DUE TO COVID-19

Wed, 22 Apr 2020 19:15:11 GMT

With full disclosure that I am not a tax attorney and I do not give tax advice, the COVID-19 pandemic has caused some changes that may allow individuals that are suffering financial hardship to make withdrawals or loans from their retirement accounts.

When the U.S. Congress passed the Coronavirus Relief & Economic Security Act (CARES Act) on March 27, 2020, it intended to assist Americans with financial relief to assist them during the COVID-19 pandemic. One area of the CARES Act set down new rules regarding withdrawals and/or loans from retirement accounts.

The CARES Act relaxed rules on loans or withdrawals from certain retirement funds so long as taken within a strict time period. Two examples:

1) The normal 10% penalty for early distributions of retirement funds up to $100,000 may be waived under certain circumstances. The taxpayer will still be taxed on the withdrawal, but no longer receive a penalty for early withdrawal.

2) The amount borrowed by a withdrawal from a 401K increased from $50,000 to $100,000.

Hopefully this helps during these difficult and historic times. As noted above, be sure to consult with your tax expert regarding your particular situation and whether these rules pertain to you personally before doing any withdrawals and/or loans.

CHANGES TO ALL CHILD SUPPORT IN APRIL 2020

Thu, 26 Mar 2020 21:42:27 GMT

Small changes coming in April 2020 to ALL child support with potentially HUGE results!

For all child support payors and recipients of child support, there are changes coming this April. The Superior Court sent out a notice to all employers last month that effective April 1, 2020 the monthly handling fee for the Clearinghouse will increase from $5.00 to $8.00 per month. This means that the handling fee for collecting and distributing monthly child support payments will automatically change, even if you have not been back to court in some time.

So what this mean for you?

Assuming the employer got the memo and takes out $8.00 starting April 1st, the payor should notice three more dollars coming out of their paycheck to cover this increase and the recipient will notice no change.

If the employer does not take out the three additional dollars, then the payor will be automatically $3.00 behind each month in child support because the handling fee is taken out first and the recipient will be shorted three dollars.

The big deal is the child’s tax exemption. The reason: Arizona law states that the allocation between parents for the child’s tax exemption is contingent upon each payor being current at the end of the year on ALL child support payments. So if you are behind three dollars from April through December - or any

combination of months, even ONE DOLLAR - you will lose your right to claim that child as a deduction on taxes!

So payors, be proactive and make sure that you employer knows about the change and takes out $8.00 per month for the handling fees so you do not lose the right to claim the child’s or children’s deduction(s).

WHAT IS A FAIR AMOUNT AND LENGTH OF SPOUSAL MAINTENANCE?

Fri, 19 Apr 2019 00:00:00 GMT

Spousal maintenance is probably one of the hardest areas to give advice in family law. Unlike child support, which can be mathematically calculated down to the penny, spousal maintenance is based on a number of factors and considerations, some certain and some subjective. The age of the parties, income differences, years of marriage, education, health of parties and lifestyle during marriage are some, but not all, of the factors that a judge would have to look at and consider.

I have attended countless spousal maintenance seminars over the years which have presented a panel of judges and well-respected practitioners that will give a wide divergence of outcomes using the same factual situations before them. As this lack of consistency has troubled judges and lawyers for years, a number of states - including Arizona - and organizations have attempted to create a formula to make the amount and duration of spousal maintenance more consistent. The trouble with these calculators is admittedly they usually only compare the difference between spouse’s salaries and the length of the marriage, and none of the other factors that our laws require. Nonetheless, some judges and lawyers look at these calculators for a starting point or guidance on how to proceed.

A law firm in Massachusetts has done a nice job of gathering all the different calculators from history and around the country (see www.alimonyformula.com ) and made it easy to compare all the different systems in one place. If, for example, you run the numbers with wife making $40,000.00 gross annually and husband making $135,000.00 gross annually and the marriage being twenty years long, you get wide and varying results - everything from zero to $726 per week for the amount and seven to twenty years for the duration. Using these same salaries and length of marriage, Arizona’s calculation would state anywhere from $1,638 to $2,340 per month for the amount and six to ten years for the duration.

Now before anyone starts counting their money or anyone has a heart attack, you need to keep in mind that the Arizona spousal maintenance calculator is merely a guideline. That is, it is not law and there is absolutely no guarantee (in fact, I highly doubt) that a judge would follow this calculation blindly. As I mentioned above it is a tool to maybe just start the conversation.

When I look at spousal maintenance as a lawyer and as a Pro Tem (fill in) judge, I look at all the factors and then ask myself “what are the reasonable needs of the person who is asking for spousal maintenance and is there a shortfall based upon what they are expected to make after the parties are divorced and living apart and can the other spouse afford to pay it?” Then, if there is a shortfall, I ask “what is a reasonable time for the receiving parties to be able to make up for this shortfall?” In other words, is the shortfall going to go on forever or can we expect that a reasonable person can make up for this shortfall so their former spouse is not stuck subsidizing their ex forever.

Here I clearly believe that a the parties should be reasonable and reach a compromise. One spouse should not expect lifetime spousal maintenance or anywhere from $1,638 to $2,340 per month for the amount and six to ten years for the duration. The other spouse, however, should not be allowed to micro-manage the other’s life after divorce by asking for receipts to prove her reasonable expenses, nor should he get away with paying nothing or only one year after a twenty year marriage.

POOR ESTATE PLANNING CAN HARM YOU AND FAMILY MEMBERS

Wed, 17 Apr 2019 00:00:00 GMT

Close to half of the people in the United States who are 55 or older have failed to properly plan what is become of them or their estate if they are incapacitated or die. A recent study of 3,000 Americans 55 years of age or older by Merrill Lynch and AgeWave has found that nearly half (45%) have no Will and only 18% have a Will and the other two crucial documents that they and their family needs in the event of incapacitating illness or injury.

A Will is a legal document that directs how your assets are to be distributed upon your death. Even if you have few assets, a Will is important for a variety of reasons. If you die without a Will - called “dying intestate” - State law will dictate who receives your possessions, you have no control who administers your estate and a judge will ultimately decide who will raise your children.

In preparing a Will, you direct who will get your assets and under what conditions. A Will also has your nomination for the person who will administer your estate and get everything concluded after you are gone. Lastly, if you are the parents or guardian of under-aged children, your Will will allow you to choose who you want to raise the children and who will administer their assets until they become adults.

The other crucial estate planning tool that are often missing according to the 2019 Merrill Lynch and AgeWave survey are a power of attorney and a living will. These two legal directives are especially important as we are living much longer that earlier generations have and they make it clear what you wanted in case you become incapacitated or incompetent.

A power of attorney (POA) gives someone other than yourself your permission to handle your affairs if you are not dead, but are unable to make decisions. A POA can be very broad and can let a person decide and act for you generally when you cannot. Similarly, a POA can be very specific and only grant a person do certain things, like make medical decisions on your behalf when you cannot.

Despite its unusual name, a “living will” is not a Will like we discussed above. A living will, also known as an advanced medical directive, is an outline of your wishes of your medical care and directives if you become critically ill are no longer able to express or convey your own directives. A living will does not some one else make decisions for you but, rather, gives instructions on how you want things handled if you cannot any longer.

Estate planning at any age and any amount of wealth is a necessary task. Although uncomfortable for some to think about and discuss your own frailties and mortality, it is important that you take control of your future by stating clearly and legally your wants and wishes. In so doing, you will rest better knowing that you have planned ahead for you and your family regardless whatever the future may hold in store.

2019 REVISIONS TO ARIZONA’S FAMILY LAW RULES

Mon, 08 Apr 2019 00:00:00 GMT

In December of 2106, the Arizona Supreme Court set up a Task Force to review and revise the family law rules used here in our state. After many months of hard work and several revisions, the new family law rules were approved and, for the most part, are applied in all family law cases after January 1, 2019. A recent article in the Arizona Attorney magazine noted: “The new rules are (completely) re-styled, (modestly) rearranged, and (occasssionally) changed substantively.” All in all, the Task Force made the new Family Law Rules “reasonable and readable for those that use them, including self-represented parties.”

The newly revised rules cleans up some prior conflicts and inconsistencies with other law rules. They make it clear when juvenile court and family courts should be in charge in situations where there is overlap. The largest change is in the area of service by publication, which now is only allow by court permission in advance.

From the perspective of a family law practitioner, the most controversial change to the rules is in that area of motions for temporary orders. Here the revised Rules are trying to discourage wasteful and unnecessary temporary orders hearings by first forcing a meeting - called a Resolution Management Conference - to see if the parties will simply agree first before having a hearing. While I commend the intention, it has been my experience is contentious cases that most parties refusing to do something (like voluntarily paying temporary child support), do not do so until they are forced to by the court.

A welcomed change to the new Rules includes a detailed list of documents that are required to be automatically produced under Rule 49. While the Rules have had a general disclosure requirement for years, the new Rules are in a new format and expands the types of documents that parties must voluntarily disclose without being asked. If followed, therefore, this will be a welcome addition to smoothly and easily moving a case along.

As in the past, time will tell if these new revisions will assist in moving cases along or be ignored and forgotten. Hopefully, it will be the former not the latter.

TAX DEDUCTIBILITY OF SPOUSAL MAINTENANCE IS CHANGING

Tue, 23 Oct 2018 00:00:00 GMT

Under the recently enacted changes to the Federal tax laws, spousal maintenance (formerly “alimony”) ordered by a dissolution (divorce) decree or agreement executed after Dec. 31, 2018, will no longer be deductible by the payer and will be tax free to the recipient. Apparently the supporters of this particular change in our historic handling of support payments believed that this concept was in some way a Federal subsidy supporting divorces.

In the entire three plus decades that I have practiced law, the person who traditionally paid spousal maintenance had been able to legally deduct this from his/her income when filing income taxes and the recipient had to claim it as taxable income. In many situations, this would be of assistance in reaching a settlement.

For example, where one spouse made significantly more than the other, this was sometimes a negotiating tool towards settling the case especially if the paying spouse could make give enough maintenance to place them into a lesser tax bracket. If this was the case, the tax savings to the paying spouse would sometimes be an incentive to pay spousal support or even pay more spousal support. Under the changes under our tax code, this incentive completely goes away.

While it is not clear yet, this change in Federal tax law may also affect child support payments in Arizona. Currently, Arizona’s child support guidelines allows the deduction of paid spousal maintenance from one parent’s salary on the child support worksheet and, conversely, the other parent had to claim this as income. The net effect changed the amount of child support owed by each parent and additionally changed the percentage owed by each parent on the children’s medical expenses not covered by health insurance. At this juncture, it is uncertain if the Arizona guidelines will change in light of the new Federal tax code.

While I am not a tax attorney or accountant, this recent change in the Federal tax laws will bring about profound ramification on many areas of Arizona domestic relations cases.

LOOKING FOR A SIMPLE WAY TO PASS ON YOUR REAL ESTATE TO LOVED ONES AFTER YOU ARE GONE?

Wed, 26 Sep 2018 00:00:00 GMT

For years, the biggest stumbling block to you family members to avoid a probate action in court after you pass was the family home. Or any real estate for that matter.

However, since the relatively recent invention of a beneficiary deed, also ominously known as a transfer on death deed, there is now a legal and clever way to pass on your real estate to loved ones after death. And the best part, it allows your loved ones to skip the ugly process of probate.

Probate court can be a drawn out and costly affair where the court decides who gets the property after someone dies. As you will expect, this can take a few months plus a few thousand dollars in legal and court costs.

Now, with the properly executed and recorded beneficiary deed, you can leave your land to whomever you please and that person or persons does not usually have to file a probate action or get the court’s permission.

Even better still, since a transfer on death deed form only kicks in upon death, you will still have absolute control over your property after signing it - you are welcome to rent the property, refinance it or even sell it. If your beneficiary falls out of favor, you can always name another one by executing a new beneficiary deed. In addition, since your beneficiary has no legal rights or interest in your property until you die, they cannot encumber your property, nor is it able to be attached by your beneficiary’s debtors until they take over the title after you are dead.

As of 2017, twelve states had passed laws allowing the use of this deed - Arizona, Arkansas, Colorado, Kansas, Missouri, Minnesota, Montana, Nevada, New Mexico, Ohio, Oklahoma and Wisconsin.

Please feel free to make an appointment to discuss your estate planning so your wishes can be followed and your loved ones can legally avoid the need to file a probate action with court after you are gone.

CIVILITY IN THE FACE OF CONFLICT

Fri, 03 Aug 2018 00:00:00 GMT

In a recent article, Maricopa County Bar Association President Norma C. Izzo wrote the following comment:

“The legal profession exists largely, if not exclusively, because of conflict. Unlike many other professions in which conflict may arise at intermittent times during one’s career, an attorney’s role is almost exclusively grounded in conflict - managing, mitigating, and overcoming conflicts.”

While I do concur with these sentiments, I am quick to always remind clients and prospective clients that conflict does not equate to rudeness, violence or skulduggery. Sadly, in our times of political derisiveness and tweeted one-line zingers, wholeheartedly profound observation advocating assertively.

ATTORNEY FEES: FLAT FEES, CONTINGENT FEES, HOURLY FEES

Fri, 21 Apr 2017 00:00:00 GMT

Lawyers typically charge for their services three different ways: a flat fee basis, contingent fee basis, or an hourly rate basis.

Flat fee charges at Brown Family Law Group, PLC are generally for routine matters such as wills, deeds, corporation and limited liability company formation, powers of attorney and living wills.

If the hourly basis is used, a deposit is often requested at the outset to retain or lock in the attorney's services. This is how family law cases - divorces, child support, custody, contempt. paternity actions - are mostly handled. The amount of the deposit will vary depending on the size of the claim, the difficulty of the legal questions involved and the amount of work expected to be involved in the case. The attorney will bill (on an hourly basis) the time expended on behalf of the client against the deposit, and if the entire deposit has been expended, the client is obligated to pay for all future work done on the client's behalf until completion of the case.

Contingent fees are used in the representation of injured parties in personal injury actions and some cases, child support arrearage collection matters. A contingent fee is exactly what its name implies. The attorney's fee is an agreed upon percentage of the recovery contingent on the success of the client's claim. If the client's case is not successful, the attorney does not get paid. Thus, the attorney will presumably "go the extra mile" to obtain not only just compensation for the client, but also payment for his or her time and efforts.

Typically, the amount of the contingent fee to the attorney will range from one third to 40 percent, exclusive of out-of-pocket costs and expenses, which are the responsibility of the client. Examples of costs and expenses include court filing fees, court reporter expenses, duplication costs, witness fees and process service charges. (These costs and expenses, however, are often recoverable to the winning party as part of the judgment).

Getting your fees paid by the other party: While the general rule is that each party must pay his their own attorney's fees in a lawsuit, the law provides many exceptions entitling the prevailing party to have a reasonable amount of attorney's fees paid by the opposing party. Examples include contract actions; game playing or hiding assets; unjustified claims; claims brought solely for delay or harassment; unreasonable delay or expanding of proceedings; and abusing the discovery process. While we vigorously pursue an award of attorney fees for our clients when available, it must be clearly understood that this is always discretionary with the Court and cannot ever be guaranteed.

YOUR DIVORCE: SURE-FIRE WAYS TO MESS THINGS UP

Thu, 27 Oct 2016 00:00:00 GMT

After practicing family/divorce law for more than 30 years, I have stopped saying that “I’ve seen everything” as the foolishness and sometimes stupidity of people in divorce court is never ending. Probably the most disconcerting is witnessing people that are self-destructive.

Here are a number of ways that clients truly can ruin their divorce cases:

1. Lie or play games with your lawyer. If you aren’t honest with the lawyer, how can you expect that they can help you? Let a lawyer make representations that aren’t true and the lawyer won’t be the one the Judge is mad at. After all, the Judge is aware that attorneys are generally the mouthpiece for the client, and if mis-statements are made, typically the client - not the lawyer - get the sanction or loses credibility in the court’s eyes.

2. Miss court hearings or show up late without a good reason. People amaze me how they can be so foolish or disrespectful to the legal process, then sincerely get shocked when the Judge lowers the boom - again, typically on the client, not the lawyer who was there on time.

3. Don’t cooperate when the lawyer asks for information or overstep deadlines. All of these behavioral problems just end up in a disastrous result. In fact, if you do not provide information, or provide it just before trial and well after the disclosure deadlines, it is not uncommon for the Court to not allow its use. Believe me when I tell you that it is extremely frustrating to finally have the information that you have been asking the client for literally months; and now, at trial, not be able to use it.

4. Don’t focus on the “now.” When people get mired in self-pity – they lose! Try to focus on resolving the current conflict, instead of focusing on their perceived victimization. Arizona is a “no-fault” state, so most Courts are not going to let you discuss blame or fault in most divorce situations anyway. Same with the future. Some people want to deal with multiple possible eventualities years into the future. While it is important to let your lawyer know about these future concerns, oftentimes, there is not anything that can be done currently about possible “what if?” years off.

5. Using your lawyer as a therapist. Not helpful. Lawyers are not typically trained as therapists and frankly, using them as such will quickly exhaust a litigation budget. Let the lawyer manage the domestic conflict and use a therapist or coach to help to manage the toxic emotions that need to be appropriately addressed.

6. Ignore your lawyer’s advice. Why would someone hire a lawyer and ignore their advice? It sounds implausible, but it happens all the time. Find the smartest and most experienced lawyer available and listen and follow their advice. Lawyers are paid for their wisdom and experience–not to help satisfy client’s self destructive impulses. Additionally, experienced counsel have typically seen most scenarios hundreds of times and know how to steer you through the problems. This is why it is so important to get competent representation.

7. Don’t pay your lawyer. Believe it or not, your lawyer works for a living. His or her stock in trade is their experience and advise, coupled with the time spent on your case. The last thing a lawyer wants to be is worried about being paid, when he/she would rather be worrying about the merits and strategies of your case. Remember that you get what you pay for in this world and to shortchange your attorney’s effectiveness to save a few dollars may be “pennies wise and pound foolish” - especially when it comes to the futures of your children or dividing everything that you have amassed throughout your life so far.

8. Take your anger out on your attorney or their staff. Your lawyer knows that there is a lot of emotions throughout this process. However, sometimes people transfer their anger at their spouse towards their lawyer. If you are hostile with your lawyer or his staff, how effective do you think they can be? Get a counselor and work through the anger . Your counsel and the people who work for him/her are not the enemy and should not be treated as such. They are there to help. Anger, in general, does not let you think clearly or present your best case in divorce court.

9. Don’t understand your role or the attorney’s role in the process. The attorney/client relationship is a professional relationship and it is important for you to understand the nature of the relationship. Treating the lawyer as a friend, therapist or the enemy (see above) is not particularly helpful. Boundaries benefit everyone. The lawyer must remain clinical and detached enough to help guide you through the tumult. Blurred boundaries help no one and actually become destructive.

10. Don’t have realistic expectations. If the bar is set too high, the crash landing is more painful. Unrealistic expectations prolong litigation and are a pain to the family. In general, avoid the “win at all costs” world view. Make your best deal and get on with it. People that get stuck on the litigation carousel sometimes never get off – a painful, expensive and miserable existence. Similarly, you should avoid any attorney who promises unconditionally that you will get everything that you want.

11. Pick a lawyer based on their advertisement. Probably the two most important professionals you will need in your life are your doctor and your divorce lawyer; neither of whom should be chosen based upon the size of their yellow page or billboard ad. Get a referral and research the competence of your lawyer. Check the lawyer out at the State Bar of Arizona’s web site for prior complaints or sanctions. Too much is a stake to pick a name at random because you liked their ad or their jingle sounded catchy.

12. Take the advice of friends and family over your lawyer’s. While they mean well, your sister or high school buddy sometimes are less objective than the professional actually involved in the divorce. These people also typically have no legal training or are only telling a person what they want to hear. Clients that follow well-meaning family member’s advice over their attorney’s usually end up getting hurt by the legal process. In other words, the delicate world of divorce negotiations cannot and should not be impacted by angry friends or one-sided relatives that are too upset or too close to understand the full implications of their advice.

13. Think that you are going to win. Nobody wins in a divorce, especially the children! You cannot possibly divide up the children, the possessions and the debts of a marriage and come out feeling whole - it is an impossibility. If you maintain too high of a sense of entitlement, the end result is that you will be destined for disappointment, no matter what the result. While a trite idiom, life is indeed unfair sometimes. But to dwell on “winning at all costs” instead of trying to figure a way forward will be hazardous, expensive and destructive.

WHY DOES COURT TAKE SO LONG?

Mon, 14 Sep 2015 18:04:13 GMT

You may have seen in the news recently a report about the Mesa woman who was sentenced to three and a half years for running over her husband because he did not vote for her candidate in the 2012 presidential election.

Our firm represented that man in his divorce and custody case to get him divorced and successfully protect the parties’ child from this mentally ill woman. Ironically, the divorce took about ten (10) months to complete and the criminal case was prolonged for over 54 months before justice was finally served.

So why does take so long to get into court? This question is one that I constantly get asked. Every client wants a speedy resolution of his or her divorce or other type of family law case. Unfortunately, a contested case - contested meaning that the parties cannot reach a speedy agreement of each and every issue - often requires between eight (8) and 12 months from start through trial or final settlement. The reasons for this are many.

First and foremost, the courts are severely congested. At any given moment, there are approximately 35,000 dissolution cases pending in Maricopa County alone.

In addition, depending on the judge that is randomly assigned to your case, this can make a big difference on how fast you proceed through the system. A few judicial divisions move along quickly, sometimes losing full and fair trials along the way. Some are horribly slow, which brings to mind the old adage “Justice delayed is justice denied.” Most divisions make sincere efforts to proceed as quickly as possible but the huge number of cases assigned to each judge makes the progress slow.

Also, clients sometimes think that we have it in our power to settle cases no matter what the circumstances and even if the other side does not wish to settle. Still other clients sometimes believe that the court can impose a settlement upon the parties without the necessity of a trial. Simply, these beliefs are not true. Every party, whatever the reason, no matter how ridiculous the claim or how fair the proposed settlement, every party in our system has the right to demand a trial and be heard at trial.

We know that this lengthy process is discouraging, but it is essential that you adjust your personal plans, emotions, expectations and thinking to accommodate the reality of this almost inevitable delay. Once it is done, you will most likely look back and see this period as a blur or a inconvenience that you simply had to tolerate and endure. You will, however, get there; and, as I tell clients all the time, “there is life after divorce, hang in there.”

FOR THE NEW YEAR: EASE YOUR MIND, SAVE YOUR FAMILY HEADACHES AND MONEY

Mon, 05 Jan 2015 00:00:00 GMT

You, and your family, will be glad that you did

According to the United States Census Bureau, Arizona has close to a million residents that are sixty five years or older. While not particularly surprising with our high number of baby boomer retirees, what does surprise me are the number of individuals that I deal with each year that have given no thought towards what will happen when they go into decline as they near late-life or when they pass away. Even worse still, is dealing with the incapacitated or deceased person’s family after they are crippled by disability or gone.

After practicing for thirty years now, I get it. Many Americans just do not want to think about aging or death. It is unpleasant and unsettling. However, by ignoring the inevitable, we oftentimes cause ourselves more stress and burdens that we could have easily avoided. More tragic still, by not doing anything, you could unwittingly cause your family members and loved ones a multitude of problems and expenses that could have easily been avoided.

With advance planning, you can ease you mind in knowing that you have your affairs in order. Your wishes can be expressed and directives set up, well before you are faced with mental impairment and/or physical decline. Obviously, you are always able to change your wishes, so long as you are deemed capable, but you at least know that you have things in place.

The other invaluable advantage to taking care of your affairs is the emotional and financial burden you save your family and loved one. For example, the setting in place of an advanced care directives may make your wishes clear about future health care decisions. By getting your affairs in order, it is relatively simple now to place your end of life and death directives in place so your family does not have to file a probate action with court.

Stop procrastinating, as your New Year’s resolution, pick up the telephone and set up an appointment with my office to discuss these oftentimes sensitive or touchy subjects with the complete confidence that everything is protected by attorney/client privilege. Get your questions answered and find out the simple steps that you can take to get the ease of mind that you have your affairs in order and everything is being handled the way you want it to be.

You, and your family, will be glad that you did. Happy New Year!

BROWN FAMILY LAW GROUP: A WIDE SCOPE OF SERVICES

Wed, 26 Nov 2014 00:00:00 GMT

About two weeks ago, I posted on the Firm’s Face book account (Brown Family Law Group) that I was pleased as I had been able to get two, one hundred thousand dollar ($100,000.00) recent settlements by having the adverse driver’s insurance companies fork over their full policy limits. While I am always satisfied in making the wrongdoer’s insurance company pay what is owed to my clients, I was amazed at the number of responses and comments that I got back from my friends, clients, colleagues and former clients that did not know that my firm handles personal injury cases.

After practicing for approximately thirty years, twenty of those in my own practice, I am always continually surprised by people not knowing the full scope of what the firm handles. In other words, those clients that get to know the firm in a family law area, do not readily realize that I handle personal injury cases and visa versa. Similarly, those folks that I handle their wills, estate planning and parent’s probates, often do not know what other services that we offer.

To set the record straight, we offer our experience in primarily three areas. These are:

Family Law. This area includes: dissolutions (divorces), paternity actions, child support enforcement, contempt proceedings, grandparents rights, custody battles and moves out of state. While emotionally the most challenging, this area of the practice is the largest area handled by the firm. With over two decades of experience in this area of law, we are usually able to ease these transitions and keep costs to a fraction of our competitors. For this reason, I suspect, we have a tremendous amount of referrals in this areas.

Personal injury Law. Personal injury matters mostly includes automobile accidents, but it does cover other areas such as dog bite cases, pedestrian/automobile collisions and the occasional slip and fall case. Although I do not handle quite as many personal injury cases each year that the big TV lawyers do, I find this area intellectually challenging and personally rewarding to serve my clients who have been hurt due to another’s negligence and/or stupidity. In fact, this year alone, I have recovered over $600,000.00 for my clients in 2014 from those that have hurt or wronged them!

Probate Law. This is an area that I truly enjoy assisting others to prepare ahead for the future or help them when a loved one has passed. Before death, it includes: Last Wills and Testaments, Powers of Attorney (both specific as well as general), Living Wills, Quit Claim Deeds and Beneficiary Deeds. After someone has passed, it includes: handling and closing out their affairs, selling the home, collecting accounts, dealing with creditors, probate affidavits to collect held assets and, occasionally, a Probate filing at Superior Court. While we do not offer tax advice, we also spend time with out friends to educated them as to what happens when a loved one (or themself) passes and how to be properly prepared for that event that happens to all of us. In fact, with proper preparation and planning, our firm often can help people to legally avoid the need for a probate court case after they die, without the need for a costly and often cumbersome trust.

MORE PARENTS OPT TO SKIP MARRIAGE (Part Two: Property)

Mon, 24 Nov 2014 00:00:00 GMT

In our never-ending societal and economic evolution, it has become apparent that more and more people in our country are opting to not get married. While this fact is not necessarily a new culture shift in recent American history, it does have important ramifications when it comes to children and property. In the second part of this series, the issue of property accumulation with someone that is not your spouse will be discussed.

While there are paternity and maternity laws in place to deal with a child or children born to unmarried parents, there are no clear legal solutions as to what should be done when two non-married people break-up and they acquired property together. Under Arizona community property laws, certain principles apply in the dividing of property that was earned or acquired while married. These laws do not apply, however, when a couple separate their relationships that were not consummated with a marriage certificate. Even in the event of the breakup of a long-term relationship, this dilemma still presents itself an Arizona has never recognized common law marriage.
In the case of a break-up, hopefully the significant other that you have “given the best years of your life” will not turn into a colossal jerk and be unfair. Similarly, if you have a clear understanding (and a written agreement) the “other” will still be fair and divide items as you have agreed. If they are not being fair or refuse to stick to your agreement, your only recourse (except giving up and walking away) may be to sue for the property under a breach of contract claim in civil court.

To avoid this type of problem, I would suggest:

Step 1: Non-married couples are best served by discussing property ownership from the very beginning if they decide to start acquiring possessions together. As difficult as this may be when you are just starting out and think that things will never go south, it would be wise to have a clearly established understanding as to how you own and will deal with your material acquisitions if you ever go your separate ways.

Step 2: Put it is writing, especially for valuable (more than $500.00) items or items that have a strong emotional attachment (the dog, that painting that you got on your first vacation together). You would not believe the wars that I have seen waged over the puppy that you rescued at the pound.

Step 3: Sign the agreement. What the heck, some Judge some day, may even consider it a binding contract. While oral contracts are actionable in Arizona, they are oftentimes impossible to prove.

Step 4: Make two copies of everything, keep them in a safe place. It doesn't do you any good if you do steps one through three and them come home to find the property (and your copy of the agreement) gone.

Also remember that oftentimes, large purchase items like a vehicle, a home or a timeshare usually will be titled into somebody’s name. Make sure that the item is titled in the fashion that you want it to be owned. For example, you purchase a vehicle together, but because of credit reasons or a better financial rate, the dealer only puts it into one person’s name. There is nothing to prevent you from re-titling the vehicle into both party’s names after to own it. In this way, it is clear to the whole world who owns the vehicle. Do not get lazy here and plan to “take care of it someday” and expect the other to remember your agreement after you go your separate ways.

And lastly, remember this same advise applies when it comes to any debts you run up together! You should have clearly stated understandings, preferably in a signed, duplicated written document. Debts like leases or major purchases should be in both names, if that is what your intent was. Be careful of one party being the entire debt-holder unless you do not mind being solely responsible in the event of a break-up.

MORE PARENTS OPT TO SKIP MARRIAGE (Part One: Children)

Thu, 20 Nov 2014 00:00:00 GMT

n our never-ending societal and economic evolution, it has become apparent that more and more people in our country are opting to not get married. While this fact is not necessarily a new culture shift in recent American history, it does have important ramifications when it comes to children and property.

According to a recent Arizona Republic article, 45% of the babies born in 2012 in Arizona were born to unmarried mothers. When this is compared with 18.7% in 1980, it is clear that the number of children born to unwed mothers is on the rise. (This data does not take into account children born to same-sex couples, who are not permitted to marry in Arizona. Nor does it account for couples that are in long-term relationships without a marriage certificate. In other words, do not equate “unmarried” to necessarily mean “single.”)

When a child is born out-of-wedlock, however, there are certain factors that both the parents should carefully consider. First, the child biological father should be clearly established. While it is a start to place the father’s name on the child’s birth certificate and/or do an Acknowledgment of Paternity at the hospital, this is not usually enough through the eyes of the law. Typically, parents should also make sure that the father’s paternity is also established by a legal court order. Even if the parties are together and there is no conflict between them, this would be still a good idea to get this legal hurdle completed to leave no questions as to the child’s father in the case of emergency, the incapacitation or untimely death of the mother, international travel, governmental benefits and possibly inheritance considerations.

Obviously, when the parents are not together and/or there is conflict happening or possibly about to happen, establishing a legal paternity order is even more important. In addition to the reasons stated above, to establish legal paternity gives both parents the legal right to be involved with the child, have set access and support obligations clearly set out and prevents either parent from just unilaterally leaving the State (or moving over a hundred miles away in State) with the child.

In conclusion, if your child is born and the parents are part of the growing national trend to not be married at the time, it is extremely important to establish both parents’ rights to the child in a legal order. In most cases this would involve simply filing a Stipulation (legalese for “agreement”) of Paternity and the court would simply enter an order stating who the parents are and fixing the child’s birth certificate (if it needed to be corrected). If working together, with both parents being involved in the child’s emotional and financial life, there would be no further reason at that juncture to need the court to enter any other orders to deal with the child. However, in the event of a mishap or dissolving of the parent’s relationship were to happen at some point in the future, then the parents’ rights to the child and the child’s rights to his or her parents has already been clearly established.

DOMESTIC VIOLENCE AND ITS EFFECT ON FAMILY COURT DECISIONS

Thu, 13 Nov 2014 00:00:00 GMT

With the National Football League and the Ray Rice controversy heating up again, the news is again full of stories about domestic violence and our society’s role in same. Domestic violence, however, is not a new problem, nor is it as isolated as some may think. Domestic violence is not a singular incident, it's an insidious problem deeply rooted in our culture.

According to a recent publication by The Huffington Post some of the statistics may shock you. These include:

Three women are murdered every day in the U.S. by male partners or former male partners.
Over 38 million women have experienced physical intimate partner violence in their lifetimes.
Almost 5 million women in the U.S. experience physical violence by an intimate partner ever year.
ne in four women, and one in seven men, will be victims of severe violence by an intimate partner in their lifetimes.
en million children are exposed to domestic violence every year.

Under Arizona law, if the family court finds a party to have been a perpetrator of Domestic Violence within the past 5 years there is a very strong presumption that the perpetrator should not share Physical or Legal Custody with the victim-parent. Thus, if the court finds that you have committed Domestic violence within the past 5 years, there is a rebuttable presumption to be proven by a preponderance of evidence that neither physical or legal custody should be granted to the perpetrator meaning that the victim of the violence will obtain sole physical and sole legal custody. This presumption is rebuttable, meaning, that you can attempt to convince the Court that even with domestic violence in your background, you could still co-parent the children and have an active physical timesharing plan without endangering the other parent or the children. In other words, it may be possible to rebut the presumption under certain limited circumstances.

If you are in a heated custody dispute or other disagreement, ALWAYS REFRAIN from domestic violence! If there may be allegations, it would be prudent to have witnesses, tape record the situation, or even consider calling 911 first. Better yet, do not let the situation escalate to that level; i.e., refuse to confront the person, leave the situation, take a walk, come back later when the tempers have calmed down, come back later with a witness in tow, call a mutual friend, neighbor or your religious leader to come over immediately.

Remember: Criminal lawyers see bad people on their best behavior; family lawyers often see good people at their worst.

IS THE “BABYSITTER-OF-FIRST-CHOICE” RULE DEAD?

Fri, 29 Aug 2014 00:00:00 GMT

For years, family lawyers and family Courts have imposed the “babysitter-of-first choice” rule (also known as the “caretaker-of-first choice” rule or, simply, the “first choice” rule) on parties with children. This rule, simply put, means that whenever one parent has the child or children and they find themselves needing a babysitter, they must offer the other parent the option of having the child first before setting the child with a relative, new spouse or even a hired babysitter. The logic behind this rule being that the child should be with the other parent before being place with another person, and the parent who needs a babysitter does not have to burden someone else or pay for a caretaker. Makes sense, right?

This rule, however, is not without its problems.

First, there usually is a time limit set before the rule takes affect. That is, if I have to run up to the store for 20 minutes because we are out of milk, I should not have to call the other parent when my new spouse can watch the child for this brief period of time. Accordingly, there is usually a time placed on the rule before it kicks in. For example: “The parties shall exercise the “babysitter-of-first choice” rule for periods that they are away from the child in excess of two (2) hours or more.” There are infinite varieties on this time limit. Some say “four hours,” some say “for periods in excess of eight hours, or anytime the parent is gone overnight.”

Second problem is accurate reporting and/or proving that somebody is violating the rule. Obviously, if the spouse needing the babysitter does not inform the other parent of this fact, how do you enforce it? Sadly, it often requires the child to "rat out" the other parent which causes distrust, ill feelings and places the child in the middle of a parental argument. This, of course, is usually detrimental to the parent/child relationship. Alternatively, to prove a violation of the rule, sometimes some form of spying or checking up is required and this is not usually seen as healthy either.

The third problems stems from the argument “why can’t I have my Mom, brother or new spouse watch the child for a few hours here or there?” In most instances, I think that people would agree that the child would benefit from seeing grandmother or an uncle and cousins as part of their association and assimilation into the large family unit.

Finally, as the child or children matures in age, it is not unusual that they do not need (or want) a babysitter for a few hours if Dad or Mom have to work for four hours on a Saturday. Except in cases where a child needs supervision and/or cannot be trusted to stay somewhere without a parent being nearby, why can’t junior just stay home and work on his/her homework or play X-box without having to be carted over to the other parents house for a few hours?

For these reasons and more, the babysitter-of-first choice seems to be falling out of favor with Judges these days. Most Judges nowadays are finding the rule extremely difficult to enforce. Additionally, it often causes more litigation and friction between the parents.

Certainly, if the parents agree to it, the Judge will more than likely order it, especially with younger children. Moreover, if you can prove that it is more than the occasional putting the child with grandmother then you may get a court to impose such a restriction or start cutting down a parenting schedule. In other words, if you can convince that Judge that this dropping off is fairly consistent, you may have a chance of convincing the Judge that it is in the child's best interests to be with you (.i.e., a parent) rather than another (i.e., a grandparent, new spouse or babysitter) all the time. Lastly, on health or safety issues, you will probably have a better chance in getting a judge to order this type of requirement.

HOW TO TALK TO YOUR KIDS ABOUT DIVORCE OR SEPARATION

Thu, 15 May 2014 00:00:00 GMT

You and your significant other have decided to part ways, how do you talk to your kids about the divorce or separation? Whether amicably or by full nuclear meltdown; whether unilaterally or mutually; whether for good reasons, bad reasons or no reasons at all, your children (and step-children in some instances) are the innocent victims completely caught in the middle. In a wartime scenario or natural catastrophe they would be called “collateral damages.” They have no choice and absolutely no control of the situation - you, their parents do!

Now in advancing these observations, let me be clear that I am not a psychologist or mental health care giver. Moreover, as a lawyer I truly believe that the children should be entirely kept out of the legal process and not even know what is going on in court. They are having or soon will be having enough on their plates without being forced to choose sides or form opinions. Lastly, each child is different, so you must weigh the maturity level and the emotional impact that actions and discussions may have. Also, as an individual who’s heart and life is being simultaneously crushed by disappointments, fear and sometimes guilt, you and your significant other must decide the appropriate timing of any discussions or the speed of these discussions.

1. THIS ISN’T ABOUT YOU. First and foremost, this is not about what you or your spouse did or did not do! We all want to explain why we believe that we are justified in doing what we are doing or explain how we were the one that was wronged. This is not appropriate to discuss (in my mind ever) with the children. Leave them out of you personal struggles and feelings with the marriage or relationship ending. Even if you have a justifiable beef, the kids do not need to hear about it or be placed in the middle.

2. EXPERTS DISAGREE. For every psychologist who recommends openness and honesty about what is going on, another advises caution. The fact is, you can say too much. A good place to start is by considering your child. Some kids demand candor. Others are happy to just talk. Use your judgment. You know your kids better than anyone.

3. SAY WHAT YOU MEAN TO SAY. Like other important conversations that you’ll have with your kids, the point you’re trying to make is really what matters. In this case, it is crucial that your kids understand that the divorce or separation is not their fault and you will still be there for them. Don’t beat around the bush; say so (“The reason we are splitting has nothing to do with you and it is not your fault.”) Then give your reasons why without getting into specifics (“Sometimes people go their separate ways” or “Relationships do not always work out for the long term.”) And yes, tell them that they will be okay (“Your Mom and I still love you and we’ll always be there for you, that has not changed”).

4. DON’T JUST TALK. LISTEN. You can anticipate that your child’s first reaction when you raise the subject will be to be quiet. So do your darndest to make it a two-way conversation. Ask what they think. Ask if it is a subject that their friends talk about. Ask if any of their friend’s parents are divorced or separated. Ask what they think it will be like traveling between two places. Keep asking questions. And listen to the answers.

5. WHEN TO LIE. In my opinion? Never. Some parents choose not to tell the truth, but risk losing their credibility if their kids discover the real story from a talkative uncle at a family party. Many experts recommend you give an honest answer - or no answer at all. If the answer to a question is an adult topic, is not something that really needs to be brought up or is too damaging to a parent-child relationship, then simply inform that child that this is not something that should be talked about now. (“That is something personal to just Mom and Dad” “That is not an age appropriate question.” “That is something that I honestly do not know or do not know how to answer.”)

6. THE WHOLE TRUTH? Try to avoid giving your child more information than she or he asked for. This is not the courtroom; it’s a conversation.

7. STAY CALM. Whatever happens, try not to raise your voice. If you do loose your temper, try to catch yourself. It’s okay to admit that these conversations aren’t easy for you, either. And if things aren’t going so well, suggest talking about it again another time. (“I didn’t mean to surprise you or make you feel awkward. Let’s talk again in a day or two.”)

8. GOOD LUCK. Yes, it’s difficult to know how to talk to your kids about a divorce or separation. Surprisingly, most children are a lot smarter and more worldly that we like to give them credit for. So even if you’re nervous, don’t put off having the conversation. This isn’t about the past. This isn’t about you. This is about your child’s future.

GOOD PARENTING: DON'T PUT YOUR KIDS IN THE MIDDLE OF YOUR DIVORCE

Mon, 17 Feb 2014 00:00:00 GMT

Divorce is difficult and emotional for all involved parties. This includes children of the marriage that is now dissolving. Children are especially vulnerable, as they have a hard time understanding what is happening and why Mom and Dad are no longer together.

When dealing with children throughout the course of a divorce, it is essential that children never be placed in the middle of a divorce. We have seen the impact that divorce can have on children and how parents misuse their relationships with their children during a divorce.

Our firm is committed to helping parents keep children out of the divorce proceedings. Children do not need to be used as weapons, messengers or blackmail tools. We encourage our clients to take the higher ground with the children whenever possible. Though they may not realize it now, as they grow older, the children will recognize the fact that you did not put them in the middle.

Effects on Child Custody

Using children against each other in a divorce may have an effect on the custody arrangements that you are seeking, such as joint custody or physical custody. If someone is playing games with the children, the courts might not look upon that too fondly and award primary custody to the other parent.

Unmarried Couples

For couples who have never been married, divorce is not an issue. However, they may have the same types of child support and child custody concerns that arise in the course of a divorce. It is important that regardless of their marital status, or relationship with each other, parents work to see that the best interests of the children are preserved and that, to the best of their abilities, the children are left out of any arguments or disagreements over child support, child custody and paternity.

CHILD SUPPORT COLLECTION

Tue, 04 Feb 2014 00:00:00 GMT

While there are some people that are extremely difficult in collection support from, all is not lost.

Typically, child support is usually intercepted from the payer’s regular pay check with what is known as an order or assignment (like a garnishment, but supposedly without the bad stigma). However, there are some people that are hard to intercept pay checks because they are self-employed, independent contractors and/or change jobs frequently. All is not lost.

By putting constant pressure on non-paying parents, the Courts can usually get compliance. This usually takes the form of continual monitoring through a series of hearings, combined with sanctions such as attorney's fees. Sometimes, stronger measures need to be implemented such as incarceration, where the payer can still go to work but must spend every night in Sheriff Joe's Tent City. In this situation, oftentimes the Court will intercept most of your pay - the thought being that you do not need the income as the State is providing your housing.

As legal fees can easily be run up fast pursing a deadbeat parent, another solution is to sign up with the Arizona Department of Economic Security. While this government service has been hit with some cut-backs in recent years due to the economy, it is still a service that is offered free to taxpayers. The biggest drawback to pursuing this line of attack is the fact that DES is very slow in going after a person. However, once they do, they do not usually go away or let go easily (I often will refer to them once that have started a full-fledged pursuit as "a pit bull in heat").

Sometime, you can use your private lawyer to start the process going, then you let the lawyer from the Attorney General's office (on behalf of DES) take over the attack once a hearing has been triggered.

There are other, non-typical, ways to try to collect child support (either ongoing or past due).

In addition to garnishing a person's paycheck with what is known as an Order of Assignment, there are other, less traditional, ways to get the support that is owed to you.

One way is to attach a bank account or investment accounts to pay the debt. This is typically does with a Writ of Attachment where you get a court order for a bank or savings institution to send you all but very little of the owing party's account.

I have had similar success in intercepting a person's share of an inheritance or an automobile accident recovery. These methods can be a bit more problematic, but they can be accomplished so long as you do not alert the paying person of you intent too earlier. In other words, do not say anything until you have spoken with your lawyer first.

Recording a judgment can also be effective if the payer wishes to ever sell or purchase real property (i.e., land and/or house) in the county. This method can also work if the owing parent started getting a loan and it was denied due to the recorded judgment. That is, if they really want to qualify for the new loan, sometimes they will pay you off so you stop messing up their purchases.

Lastly, gambling winnings can be intercepted to pay the winner's owed support. For example, the $338 million Powerball lotto winner from New Jersey recently was forced to pay off his approximately $29,000.00 in back child support before he could see any of his money. I am sure that that child's parent was happy to hear about the other parent's good fortune.

PREPARING FOR DIVORCE: 7 STEPS

Tue, 04 Feb 2014 00:00:00 GMT

Despite the reason that you have for choosing to end your marriage with a divorce, do not make impulsive decisions. You need to be rational, calm and you need to think things through so you can be prepared. By doing the following suggestions, your first visit to an attorney will be much more productive.

STEP 1

You will need to gather all families financial information, including assets and debt information. The more supporting documentation that you have the better. If you plan on moving out of the home, then you need to get copies of everything before you leave. If you attempt to return to the marital home after you have moved out to retrieve the financial information, often the information has already been removed and it is a great deal of hassle and a financial cost to obtain the information later.

The types of information would be credit card accounts, loans on vehicles, real estate, mortgages, deeds of any properties, insurance policies, pay stubs, tax returns for the prior three (3) years, business operation records, bank and credit union accounts, pension retirement accounts, IRA's, 401K's, any investment accounts and any other asset or debt information that is unique to your family. You want to attempt to have at least the last twelve (12) months at minimum. If you are unable to obtain certain documents, but have access to at least the account numbers, that will help you later on in obtaining the information.

Obviously, you need the social security numbers and date of births for each person in the family. Do not forget copies of Birth Certificates, Passports, Last Will and Testaments, etc.

The best idea is to put these copies in a safe place, whether it is with a relative that you trust, a safe deposit box, or have them with you. If you hire an attorney, be prepared to provide a copy of all documents.

Before you make a final decision on whether staying the marital or leaving the marital home, you should make that decision after you have everything in order and you have spoken to an attorney so you can make an informed decision.

STEP 2

Prepare an inventory of all your personal property (anything that is worth over $100.00). It will first include separate property items which would be items that were brought into the marriage given to you as a gift, or inherited. You would list beside the item which one of those reasons it is your separate property (example, diamond ring inherited from my mother when she passed). It will secondly include all community property. ( if there are any items that are irreplaceable to you such as keep sakes or photographs, they should also be placed in a safe place whether it is with a relative that you trust, a safe deposit box, or some other safe location). Take several pictures of each room of the marital home if you plan on leaving so that you have proof of the condition of the home prior to you leaving. If it is probably a good idea to take photographs of the contents of the garage, storage rooms as well as the front and back yards.

STEP 3

Make sure you have a complete list of all telephone numbers, address, email information about doctors, teachers, accountants, financial planners, daycare centers, any contact that has been involved in the family's life. You want to make sure you don't lose contacts information.

STEP 4

You want to change all of your passwords on all of your financial accounts, e-mail, Facebook, twitter accounts. You may want to open a new e-mail account just for privilege communications between you and your attorney. Be careful when you do this, as this may alert your spouse that you are about to separate.

STEP 5

After you change passwords to Facebook, MySpace, Linked In, and any other social network media, it is very important that any social network media is kept in a positive manner. Even if you keep it private, there are amazing ways that people gain access to this information. You want to make sure you keep your Facebook clean. You do not want to put anything derogatory on there. You don't want pictures of you partying, you do not want pictures of you "partying". You want to limit how many contacts have access to your social network. You may want to reduce your number of friends, as you do not want to have everyone as a friend during this time. Always be aware that anything that you post on a social network can, and probably will, be used as evidence in any legal matter.

STEP 6

For the sake of simplicity, I am referring to gender roles in general and in today's society the roles of each parent are easily switched. You want to start keeping a journal regarding children's activities, who normally takes the children to the doctor, the dentist, to and from school, to activities, etc.. Try to keep a general calendar of the children's daily life. Start thinking about what kind of relationship you want to develop as far as how to share parenting time and how the kids will be split between the parents and what each role will change to, if perhaps the mother works full-time and the father has more flexibility then maybe he would be better to take the children to the doctor although in the past the mother has primarily taken time off to do this task. She may have been able to do that because even though she was missing pay for the day to take the kids to the doctor, the father's pay made up for it. But now that the parents have separate households, Mother may not be able to miss work. Start thinking about separate households how are kids appointments will be handled. Focus on the kids and how to make it easier for them and how the parents can work together.

STEP 7

If you only have a joint account, you are going to want to open your own account in your name only. Make sure you start having any automatic deposits of your paychecks deposited into your own account. Be careful to note if you have any debts (ie., car loan, utilities, etc.) automatically taken from any account. This does not mean that your paycheck is your sole and separate property, it just allows you more control over the funds. This is a sensitive area and it is highly recommended that you discuss with an attorney your plan to do this action, prior to cancelling automatic payroll deposits into a joint account. You do not want to be accused of hiding community funds.

GARNISHMENT ORDERS DON'T AUTOMATICALLY EXPIRE

Tue, 04 Feb 2014 00:00:00 GMT

Living in this modern age where computers and advance technology does almost everything automatically for us now, do not fall for the mistake of thinking that child support and spousal maintenance (alimony) garnishment orders automatically cease. Even though Court orders often have the end date when spousal maintenance (alimony) ends and child support orders contain the presumptive emancipation date when child support should end because the child turns eighteen, orders of assignment that essentially garnish these payments from your paycheck do not typically contain an end date. As such, these orders are open-ended and employers will continue to take the money out until they get a subsequent order modifying or quashing (stopping) the previous order. In addition, even if you have a very sympathetic employer who you prove that your payment obligations should end, most employers do not want to be sued or be held in contempt of Court so they will err on the side of caution and not disobey the assignment order until they get a new order modifying it or stopping it.

The lesson to be learned here is you should be aware of when your child support and spousal maintenance (alimony) is suppose to end and start taking steps about four (4) months before that to stop the wage assignment with the Court. The reason that you start a few months ahead of the end date is because your ex can question whether the order should stop, and then it will oftentimes take three or four months before a Judge can rule on your request. Thus, if you request that it stop the month that it should end, there are situations where the employ has to keep taking the money out until the Judge sorts everything out (and then, good luck dragging the overpayments out of the ex that "has already spent it").

THE EMOTIONAL IMPACTS OF INTRA-FAMILY LITIGATION

Tue, 04 Feb 2014 00:00:00 GMT

Any intra-family litigation, divorce, custody, support, orders of protection, etc., have strong emotional ramifications even in the strongest family units. To "go into battle" with a loved one and, sometimes, formerly trusted members of that person's family is at the least upsetting and at the most totally destructive to ties that may never heal. More destructive still are battles that spill over and hurt and damage the children. These damages are truly the hardest to deal with and comprehend - especially if it turns out that a parent or family member is harming the child and still does not stop or care.

It is never a bad idea to seek some personal advice or guidance from a counselor, social worker or doctor. Attorneys are not usually counselors or doctors. I know that certainly I am neither. Attorneys are there to guide you through the legal system and give you legal advice so you can make the best decisions. A counselor is much more adept at helping you go through the emotional roller coaster that is naturally expected when one is going through a divorce, especially if it is a long term marriage and/or involves children. It is generally proven that counseling early on in the divorce process helps the person remain more calm and able to be at a better place emotionally at the end of the divorce than not having any counseling throughout the entire divorce, especially if it is a contested divorce.

THE IMPORTANCE OF RE-TITLING YOUR PROPERTY AFTER THE DIVORCE

Tue, 04 Feb 2014 00:00:00 GMT

Did you know that when you divorce your spouse or annul your marriage, any property interests not dealt with this the Decree and still held as joint tenants with right of survivorship or community property with right of survivorship transforms the former spouses interests into tenants in common?

Yes, under A.R.S. Sec. 14-2804(A)( 2) , if you divorce and you forgot to change the title to your jointly held property your former spouse does not automatically get it as a "survivor" if you were to die. Instead, the express provisions of the Decree would be followed (i.e., Husband gets the house) or your estate would an undivided half interest in the property as a "tenant in common" with the still living spouse. Now, obviously, if the home is awarded to one spouse and both names are left on the property, the person who received the property in the divorce will still have ownership but it may present a mess for estate to clear up.

This of course, only takes place once the dissolution or annulment is finalized and signed by the Judge. So if you get run over by a bus, prior to the Judge signing the Decree, the survivor still takes all.

13 WAYS TO RUIN YOUR DIVORCE CASE

Tue, 04 Feb 2014 00:00:00 GMT

After practicing family/divorce law for nearly 29 years, I have stopped saying that "I've seen everything," as the foolishness of people in divorce court is never ending. Probably the most disconcerting is witnessing people that are self-destructive.

Here are a number of ways that clients truly can ruin their divorce cases:

1. Lie or play games with your lawyer. If you aren't honest with the lawyer, how can you expect that they can help you? Let a lawyer make representations that aren't true and the lawyer won't be the one the Judge is mad at. After all, the Judge is aware that attorneys are generally the mouthpiece for the client, and if misstatements are made, typically the client - not the lawyer - get the sanction or loses credibility in the court's eyes.

2. Miss court hearings or show up late without a good reason. People amaze me how they can be so foolish or disrespectful to the legal process, then sincerely get shocked when the Judge lowers the boom - again, typically on the client, not the lawyer who was there on time.

3. Don't cooperate when the lawyer asks for information or overstep deadlines. All of these behavioral problems just end up in a disastrous result. In fact, if you do not provide information, or provide it just before trial and well after the disclosure deadlines, it is not uncommon for the Court to not allow its use. Believe me when I tell you that it is extremely frustrating to finally have the information that you have been asking the client for literally months; and now, at trial, not be able to use it.

4. Don't focus on the "now.” When people get mired in self-pity - they lose! Try to focus on resolving the current conflict, instead of focusing on their perceived victimization. Arizona is a "no-fault" state, so most Courts are not going to let you discuss blame or fault in most divorce situations anyway. Same with the future. Some people want to deal with multiple possible eventualities years into the future. While it is important to let your lawyer know about these future concerns, oftentimes, there is not anything that can be done currently about possible "what if?" years off.

5. Using your lawyer as a therapist. Not helpful. Lawyers are not typically trained as therapists and frankly, using them as such will quickly exhaust a litigation budget. Let the lawyer manage the domestic conflict and use a therapist or coach to help to manage the toxic emotions that need to be appropriately addressed.

6. Ignore your lawyer's advice. Why would someone hire a lawyer and ignore their advice? It sounds implausible, but it happens all the time. Find the smartest and most experienced lawyer available and listen and follow their advice. Lawyers are paid for their wisdom and experience-not to help satisfy client's self destructive impulses. Additionally, experienced counsel have typically seen most scenarios hundreds of times and know how to steer you through the problems. This is why it is so important to get competent representation.

7. Don't pay your lawyer. Believe it or not, your lawyer works for a living. His or her stock in trade is their experience and advise, coupled with the time spent on your case. The last thing a lawyer wants to be is worried about being paid, when he/she would rather be worrying about the merits and strategies of your case. Remember that you get what you pay for in this world and to shortchange your attorney's effectiveness to save a few dollars may be "pennies wise and pound foolish" - especially when it comes to the futures of your children or dividing everything that you have amassed throughout your life so far.

8. Take your anger out on your attorney or their staff. Your lawyer knows that there is a lot of emotions throughout this process. However, sometimes people transfer their anger at their spouse towards their lawyer. If you are hostile with your lawyer or his staff, how effective do you think they can be? Get a counselor and work through the anger . Your counsel and the people who work for him/her are not the enemy and should not be treated as such. They are there to help. Anger, in general, does not let you think clearly or present your best case in divorce court.

9. Don't understand your role or the attorney's role in the process. The attorney/client relationship is a professional relationship and it is important for you to understand the nature of the relationship. Treating the lawyer as a friend, therapist or the enemy (see above) is not particularly helpful. Boundaries benefit everyone. The lawyer must remain clinical and detached enough to help guide you through the tumult. Blurred boundaries help no one and actually become destructive.

10. Don't have realistic expectations. If the bar is set too high, the crash landing is more painful. Unrealistic expectations prolong litigation and are a pain to the family. In general, avoid the "win at all costs" world view. Make your best deal and get on with it. People that get stuck on the litigation carousel sometimes never get off - a painful, expensive and miserable existence. Similarly, you should avoid any attorney who promises unconditionally that you will get everything that you want.

11. Pick a lawyer based on their advertisement. Probably the two most important professionals you will need in your life are your doctor and your divorce lawyer; neither of whom should be chosen based upon the size of their yellow page or billboard ad. Get a referral and research the competence of your lawyer. Check the lawyer out at the Arizona State Bar Association's web site for prior complaints or sanctions. Too much is a stake to pick a name at random because you liked their ad or their jingle sounded catchy.

12. Take the advice of friends and family over your lawyer's. While they mean well, your sister or high school buddy sometimes are less objective than the professional actually involved in the divorce. These people also typically have no legal training or are only telling a person what they want to hear. Clients that follow well-meaning family member's advice over their attorney's usually end up getting hurt by the legal process. In other words, the delicate world of divorce negotiations cannot and should not be impacted by angry friends or one-sided relatives that are too upset or too close to understand the full implications of their advice.

13. Think that you are going to win. Nobody wins in a divorce, especially the children! You cannot possibly divide up the children, the possessions and the debts of a marriage and come out feeling whole - it is an impossibility. If you maintain too high of a sense of entitlement, the end result is that you will be destined for disappointment, no matter what the result. While a trite idiom, life is indeed unfair sometimes. But to dwell on "winning at all costs" instead of trying to figure a way forward will be hazardous, expensive and destructive.

JUDICIAL DISCRETION IN ALLOCATING PROPERTY AND DEBT

Tue, 04 Feb 2014 00:00:00 GMT

Under Arizona law, property acquired during marriage is to be divided equitably or fairly upon dissolution of marriage (divorce). Now, it goes without saying that most people and Judges would consider the equal division of property to be the most fair. However, in considering the allocation of property, the destruction or hiding of property gets to be considered as well as the debts oftentimes will be put into the mix.

Thus, Arizona laws give judges "broad judicial discretion" in making property and debt divisions. Additionally, if the parties agree to divide their possessions other than 50/50, the Courts will usually rubber stamp same, as long as there is no duress or fraud involved.

DON'T LET SOCIAL MEDIA UNDERMINE YOUR DIVORCE

Tue, 04 Feb 2014 00:00:00 GMT

Over-sharing on social networking media has led to an overabundance of evidence in divorce cases.

Facebook is the unrivaled leader for turning virtual reality into real-life divorce drama. About one in five adults uses Facebook for flirting, according to a 2008 report by the Pew Internet and American Life Project.

The disconnect between real life and online is hardly unique. People are just blabbing things all over Facebook. People don't yet quite connect what they're saying in their divorce cases is completely different from what they're saying on Facebook. It doesn't even occur to them that they'd be found out.

Family lawyers also have found other interesting ways to use your addiction to social medial sites and games to their advantage. For examples, I once subpoenaed evidence from the gaming site World of Warcraft that showed Mother and boyfriend gaming for hours at the precise time she was supposed to be out with the children. Mom loves Facebook's Farmville, too, at all the wrong times. Similarly, think of Dad forcing son to de-friend mom on line, bolstering her alienation of affection claim against him.

Social networks are also ripe for divorce-related hate and smear campaigns among battling spousal camps, sometimes spawning legal cases of their own. So just because your sister thinks that she is helping your case by maligning your soon to be ex-spouse, think again. Even if your attorney states that his or her client has no control over what other people in your family have to say, regardless, it's powerful evidence to plunk down before a judge. In my opinion, it's all pretty good evidence and the judges don't really have any problems letting it in.

Here are some social media tips for making sure your personal life online doesn't wind up in divorce court:

1. If you plan on lying under oath, don't load up social networks with evidence to the contrary.

2. Going through a divorce is about as emotional as it gets for many couples. The desire to talk trash is great, but so is the pull for friends to take sides.

3. During family legal fights, it is the worst possible time to share your feelings online.

4. Grown-ups on a good day should know better than to post boozy, carousing or sexually explicit photos of themselves online, but in the middle of a contentious divorce?

Really? I am constantly telling my clients when they come in, "anything that you write or post online should be written in a way that you would not be embarrassed to ever read it out loud in open court.”

Privacy settings: Find them. Get to know them. Use them. Keep up when Facebook decides to change them. Better yet, heed your lawyer's advice and get off social networking media!

TAX ON PROPERTY RECEIVED IN DIVORCE

Tue, 04 Feb 2014 00:00:00 GMT

Does a property settlement create tax liability? Ordinarily there is no tax liability created by a property settlement. However, if you receive a particular asset as part of your settlement, and you later sell that asset, you are responsible for any capital gains taxes for that asset. Good planning requires a consideration of the ultimate tax impact that goes with the award of particular assets.

The intersection of divorce and tax law is a very complicated subject. You should not rely on this very brief primer to make any final decisions regarding tax and divorce. You need to consult with your CPA and/or tax lawyer before making any decisions that may affect your taxes (or divorce for that matter). Each circumstance is different.

HIDDEN, STOLEN AND DESTROYED ASSETS

Tue, 04 Feb 2014 00:00:00 GMT

If one spouse in a marriage improperly destroys, steals, hides or frivolously spends martial assets, the judge in your dissolution proceeding can be asked to account for the lost portion of the community's property. This is even true if said "waste" occurred prior to the divorce commencing.

So if your spouse took assets, destroyed furniture or blew your hard-earned savings on the newer model, you can ask the Court to compensate you, usually from the remaining assets that have not been taken or destroyed. Be careful though; a judge under Arizona law cannot divide property to punish someone for misconduct or infidelity. However, the fraudulent or wasteful use of marital property can be used by good lawyer to sometimes influence the court's decisions, especially when awarding attorney's fees.

SPOUSAL MAINTENANCE AND AUTOMATION

Tue, 04 Feb 2014 00:00:00 GMT

On a related note ...

Letting the bank automatically pay your bills can be dangerous. The biggest danger is that you lose track of your finances. Recently I handled a case for a rather wealthy client who was self-employed and set up his spousal maintenance (alimony) to be paid automatically each month along with some other bills. At the end of his four-year obligation, he informed the bank to stop making the automatic deductions, which at first they did. Unfortunately, a couple of months down the road, the bank somehow messed up and started the automatic payments again. Of course, his former spouse did not tell him that the payments started up again and collected almost another year before the error was discovered. We then had to take the former wife back to Court as she refused to voluntarily re-pay these overpayments. While things did eventually work out and my client got his money returned over time, it was an expensive headache for my client.

Bottom line: If you use a bank to make automatic payments for you, you should still monitor your statements on a monthly basis. Also, if your bank seems to make repeated errors that you have to correct, don't trust it to pay your bills.

ARIZONA: "CHILD CUSTODY" NOW "LEGAL DECISION-MAKING"

Thu, 24 Jan 2013 00:00:00 GMT

Effective January 1, 2013, new laws enacted by our Arizona legislature eliminated the legal concept of "custody" from divorce and paternity proceedings. Instead, the term "legal decision-making" has taken its place.

Historically, the term "custody" oftentimes would set off a power struggle between the parents, leading to a fight over rights and entitlements. Now, the phrase "legal decision-making" will hopefully focus parents on rights and responsibilities. Also, "custody" was often confused with the amount of time that you spent with a child (which is more correctly referred to as "access" or "parenting time").

Legal decision-making is defined as the "...legal right and responsibility to make all non-emergency legal decisions for a child including those regarding education, health care, religious training and personal care decisions." Consequently, joint legal decision-making is now defined as "...both parents share in the decision-making and neither party's rights or responsibilities are superior except to specified decisions as set forth by the court or the parents in the final judgment or order."

Will this change in terminology trigger a change in how courts view the parental roles or responsibilities in raising the children? Some believe that this change will not result in any significant change in how custody battles play out in our courts; while others believe that this is a watershed moment from which all future decisions will derived equality for both fathers and mothers. Time will tell.