Arizona Divorce & Family Law Blog : Commentary on Arizona divorce, child custody, paternity, child support & family law litigation. : Arizona Family Law Lawyer & Attorney : Nirenstein Garnice Soderquist, PLC

Michael S. Archer and CPT Tricia L. Birdsell provide a detailed analysis regarding the pitfalls civilian attorneys can encounter in cases involving military support issues. 

Military support  issues arise frequently in Arizona due to the presence of Luke Airforce Base, as well as other military installations in the Southwest.  If you or your spouse are in the military, each branch of service requires certain support obligations upon separation for both dependents and spouses.  This article details the steps one must take in each branch of the military to obtain support, how to calculate the support obligation, as well as how a waiver of the obligation can be obtained by the military spouse.

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In Wigand v. Wigand, Wife appealed from an order vacating a default decree of dissolution. Arizona Court of Appeals, Division 1 ,however,  agreed and set the Arizona divorce decree aside.

In this case, Wife filed for divorce in February 2008, and requested spousal maintenance, an equitable division of the community property and debts, and attorneys’ fees. Her petition also alleged that Husband wasted community assets during the marriage. Husband, who was living and working in New Mexico, accepted and waived service of process. 

Although Husband claimed that the parties were discussing a divorce settlement, Wife filed an application and affidavit for default, and the court subsequently entered a default decree. The decree awarded Wife $2895 per month in spousal maintenance for twelve years, the community residence (which had approximately $155,000 in equity), all personal property and the vehicle in her possession, the retirement account in her name, any debts that were incurred by her or in her name, and her attorneys’ fees. Husband received the car and personal property in his possession, the retirement account in his name, and any debts that were incurred by him or in his name. Five months later, Husband sought to set aside and vacate the default decree.

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More about Naseman.

As we know, Husband and Wife, married 11 years at time of the filing of the petition for dissolution of marriage, initially resided in Massachusetts.  However during the third year of their marriage Husband purchased property in Arizona and the parties subsequently moved here. Prior to the marriage, Husband who had accumulated substantial wealth and property was already retired; however, 6 years into the marriage, he returned to work. Wife owned her own business prior to the marriage, a bridal shop in Massachusetts, which was sold 3 years prior to the filing of the action. She then operated a business that provided cellulite reduction treatments and facials. (Wife was obviously savvy choosing to get into this line of business in Arizona.)  Trial was held in 2006. The Arizona family court awarded Wife spousal maintenance of $4,200 per month for 6 and ½ six years. Additionally, the court explained that rather than increasing Wife's spousal maintenance, it would allow Wife to keep furniture she removed from the Arizona home. On appeal Husband contests the amount and duration of spousal maintenance awarded.

Spousal Maintenance

In this case, the Family Court did list all of the factors pursuant to A.R.S. § 25-319(B), issued findings under each, and concluded spousal maintenance of $4,200 per month for 6 and ½ years was appropriate because it would “allow an adjustment for Wife to raise her own income, or to moderate her return to a more standard lifestyle.”

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Procedure is something that just cannot be ignored.  In the recently decided divorce case, Naseman v. Naseman, Division One of the Arizona Court of Appeals indicated just that.

In Naseman, Husband argued on appeal that the family court failed to make sufficient findings regarding spousal maintenance pursuant to Rule 82, Arizona Rules of Family Law Procedure. The Court noted that when a party timely requests findings of fact, the family court's factual findings must be sufficient to allow an appellate court to examine the family court's basis for its decision. However, a litigant must object to inadequate factual findings and conclusions of law to give the court an opportunity to correct them. Since Husband did not challenge the sufficiency of the findings in the family court. Thus, he was found to have waived this argument.

More on Naseman and its substantive ruling to come. 

Contact Nirenstein Garnice Soderquist PLC for all of your Arizona Family Law needs. 

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The Court of Appeals affirmed The Honorable Judge Hugh Hegyi's ruling in Frantz v. Frantz, 2009 WL 4981533 (Ariz.App. Div. 1), a case that dealt with an issue that is becoming more and more common in Arizona as a result of the State's heavy financial reliance of the real estate market. In Frantz, Husband appealed from a decree of dissolution arguing that the family court erred in its determination that a second lien secured by the marital residence was not a community obligation. At the dissolution hearing, Husband, Wife, and a real estate appraiser testified.  Judge Hegyi stated:

“In finding that the community has $92,000 in equity in the [residence], the court does not deduct the value of the $84,000 second lien on that property. It finds that WIFE has established by clear and convincing evidence that the lien is not a community obligation. The money was received by HUSBAND alone. HUSBAND alone had the ability to explain what happened to the proceeds of the loan, and has failed to do so. After observing the parties' demeanor in testifying, the court finds HUSBAND expended these proceeds in a manner that was not intended to, and did not, benefit the community."

Husband filed a motion to alter or amend the decree requesting that the court value the residence at $8,000 - an amount reflecting the fair market value minus any and all of the liens and encumbrances obtained by the parties during the marriage. The court denied Husband's motion.

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Many people often ask what an Arizona "No Fault" Divorce really means.  In simple terms, it means that in Arizona any husand or wife, despite what the other spouse may want, can get divorced without the other agreeing that the marriage should be disolved.

The Arizona divorce statute requires that there must be an "irretrievable breakdown" of the marriage for the court to be able grant a divorce, or as it is technically called, a dissolution of marriage. 

If either a husband or wife by petition under oath state that the marriage is irretrievably broken or if one of them so states and the other does not deny it, the court will make a finding as to whether or not the marriage is irretrievably broken. If either the husband or wife denies under oath that the marriage is irretrievably broken, the court will conduct a hearing to consider whether reconciliation is possible and will also (1) make a finding as to whether or not the marriage is irretrievably broken, and (2) stay the divorce proceeding for not more than sixty days. At the request of either party or on its own motion, the court may also send the husband and wife a conciliation conference.

There are other possible strategic reasons why a husband or wife may want to ask for a concilliation conference other than to stay the court's determination as to whether the marriage can be reconcilled.  For further information on this and other issues relating to Arizona divorce cases, contact Nirenstein Garnice Soderquist PLC.

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In Arizona there are many people who have never been divorced before.  Often times, one married person decides that they would no longer like to be married and would like to know more about "uncontested divorces".  They don't exactly know what an "uncontested divorce" is but have heard that it is an easier and relatively cheaper process.  Well, that is true.  However, most people believe that an Arizona uncontested divorce can only be accomplished when the other spouse's whereabouts are unknown. That is not the case.  When both husband and wife have come to terms that they will be divorcing and have come to an agreement regarding the terms, i.e., division of community property, assumption of community debt, spousal maintenance (also called alimony or spousal support), and if children are involved, child custody and child support, an uncontested divorce can be used to simplify the process and get the divorce done quicker.

What actually is an "uncontested divorce" in Arizona?  Well, it is a divorce automatically granted by a court when the spouse who is served with a summons and complaint for divorce fails to file a formal response with the court. Many divorces proceed this way when the spouses have worked everything out and there's no reason for both to go to court -- and pay the court costs.

For more information regarding uncontested divorces, contact Nirenstein Garnice Soderquist PLC and they will be glad to answer any questions you may have, or assist you with the process.

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While some couples are putting off divorce because they can’t afford it, the situation is different for moneyed clients. Since their assets are worth less, a lot of monied spouses believe the time is ripe to divorce because they will have to give less to the other spouse.  This may be especially true where the more financially empowered spouse wants to keep the marital residence and their 401(k) and other retirement plans.

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Make rules about nonfinancial matters. For practical reasons, you should keep personal agreements out of your prenup. Here is a partial list of nonfinancial matters that sometimes find their way into prenups, but are better dealt with separately. Of course, the possible issues are endless and you may well think of many that aren't mentioned here:

* responsibility for household chores -- from laundry to cleaning to car care
* use of last names after you marry
* agreements about having and raising children, such as birth control, having children, children's names, child care responsibilities, and education
* how you will relate to in-laws or stepchildren, and
* whether you will have any pets and who will be responsible for them.

These kinds of nonmonetary agreements aren't binding in court, and in fact they could cause a judge to take your entire prenup less seriously. Rather than including personal matters in your prenup, you may find it helpful to simply make a list of your most important concerns and discuss them together. If you want to take it a step further, you can underscore your commitment by writing down your personal agreements in a separate document -- perhaps in a letter that each of you writes to the other, clarifying your intentions and wishes.

Copyright © 2006 Nolo

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"Encourage" divorce.

At one time, many courts viewed any prenup specifying how things would be divided up in case the couple splits as void and unenforceable because it promoted divorce. The modern approach allows such agreements, but judges in some states still take a hard look at them. If the agreement appears to offer a financial incentive for divorce to one party, it may be set aside.

Copyright © 2006 Nolo

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Give up the right to alimony, in a few states. A handful of states similarly limit your ability to give up your right to alimony -- also called spousal support or separate maintenance -- if there is a divorce. Other states permit such waivers, so you will need to know what your state laws say if you are considering this kind of agreement.(You can find the law for your state in Nolo's book, Prenuptial Agreements: How to Write a Fair & Lasting Contract, by Katherine E. Stoner, Attorney-Mediator and Shae Irving, J.D.)

Copyright © 2006 Nolo

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There are some things you just can't -- or shouldn't -- do with a prenup. State laws differ as to what matters are considered off-limits. However, as a general rule, any agreement to do something that is illegal or against state-defined public policy will be considered unenforceable -- and may even jeopardize other valid aspects of the premarital agreement. Here are some things that you can't do, at least in some states:

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In addition to the reasons listed so far, there are countless other uses for a prenup, depending on your circumstances. Here are some examples of other matters people include in their prenups:

• whether to file joint or separate income tax returns or to allocate income and tax deductions on separate tax returns
• who will pay the household bills -- and how
• whether to have joint bank accounts and, if so, how you will manage them
• agreements about specific purchases or projects, such as buying a house together or starting up a business
• how you will handle credit card charges -- for instance, whether you will use different cards for different types of purchases, what kinds of records you will keep, and how you will make payments
• agreements to set aside money for savings
• agreements for putting each other through college or professional school
• whether you will provide for a surviving spouse -- for example, in your estate plan or with life insurance coverage, and
• how to settle any future disagreements -- for example, you might agree to hire either a mediator or a private arbitrator.

Copyright © 2006 Nolo

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Prenuptial agreements are most often used for the following puposes, this week, the first reason:

Keep finances separate. Every state has laws designating certain kinds of assets accumulated during marriage as marital property or community property, even if these assets are held in the name of just one spouse. If a couple divorces, or when one spouse dies, the marital or community property will be divided between them, either by agreement or by a court. If you want to avoid having some or all of your individual accumulations during marriage divided up by a court, you can do so with a premarital agreement.

Copyright © 2006 Nolo

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A doctrine that grants the spouse least at fault a divorce when both spouses have shown grounds for divorce. It is a response to an old common-law rule that prevented a divorce when both spouses were at fault.

Copyright © 2006 Nolo

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The act of freeing someone from restraint or bondage. For example, on January 1, 1863, slaves in the confederate states were declared free by an executive order of President Lincoln, known as the "Emancipation Proclamation." After the Civil War, this emancipation was extended to the entire country and made law by the ratification of the thirteenth amendment to the Constitution. Nowadays, emancipation refers to the point at which a child is free from parental control. It occurs when the child's parents no longer perform their parental duties and surrender their rights to the care, custody and earnings of their minor child. Emancipation may be the result of a voluntary agreement between the parents and child, or it may be implied from their acts and ongoing conduct. For example, a child who leaves her parents' home and becomes entirely self-supporting without their objection is considered emancipated, while a child who goes to stay with a friend or relative and gets a part-time job is not. Emancipation may also occur when a minor child marries or enters the military.

Copyright © 2005 Nolo

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A divorce automatically granted by a court when the spouse who is served with a summons and complaint for divorce fails to file a formal response with the court. Many divorces proceed this way when the spouses have worked everything out and there's no reason for both to go to court -- and pay the court costs.

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A divorce obtained in a different state or country from the place where one spouse resides at the time of the divorce. As a general rule, foreign divorces are recognized as valid if the spouse requesting the divorce became a resident of the state or country granting the divorce, and if both parties consented to the jurisdiction of the foreign court. A foreign divorce obtained by one person without the consent of the other is normally not valid, unless the nonconsenting spouse later acts as if the foreign divorce were valid, for example, by remarrying.

Copyright © 2005 Nolo

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A document that provides proof of a marriage, typically issued to the newlyweds a few weeks after they file for the certificate in a county office. Most states require both spouses, the person who officiated the marriage and one or two witnesses to sign the marriage certificate; often this is done just after the ceremony.

Copyright © 2005 Nolo

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If one spouse meets the residency requirement of a state or country (such as having lived there from six months to a year), a divorce obtained there is valid, even if the other spouse lives somewhere else. The courts of all states will recognize the divorce.

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All states require a spouse to be a resident of the state -- often for at least six months and sometimes for as long as one year -- before filing for a divorce there. Someone who files for divorce must offer proof that he or she has resided there for the required length of time. Only three states -- Alaska, South Dakota, and Washington -- have no statutory requirement for resident status.

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One spouse cannot stop a no fault divorce. Objecting to the other spouse's request for divorce is itself an irreconcilable difference that would justify the divorce.

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When both parties have shown grounds for divorce, the court will grant a divorce to the spouse who is least at fault under a doctrine called "comparative rectitude." Years ago, when both parties were at fault, neither was entitled to a divorce. The absurdity of this result gave rise to the concept of comparative rectitude.

Nowadays, it's usually one spouse who files the divorce papers first; if the other person disagrees with the "fault" accusations, he or she can file an "answer" to the divorce complaint.

Copyright © 2005 Nolo

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A fault divorce may be granted when the proper grounds are present and at least one spouse asks that the divorce be granted on the grounds of fault. Not all states allow fault divorces.

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Permanent separation. When a couple decides to permanently split up, it's often called a permanent separation. It may follow a trial separation, or may begin immediately when the couple starts living apart. In most states, all assets received and most debts incurred after permanent separation are the separate property or responsibility of the spouse incurring them. However, debts that happen after separation and before divorce are usually joint debts if they are incurred for certain necessities, such as to provide for the children or maintain the marital home. Again, a couple's decision to permanently separate may not be considered a legal one unless one party takes the other to court for support or custody pending a divorce action. This then leads to a state of legal separation.

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Trial separation: When a couple lives apart for a test period, to decide whether or not to separate permanently, it's called a trial separation. Even if they don't get back together, the assets they accumulate and debts they incur during the trial period are usually considered jointly owned. This type of separation is usually not legally recognized, but is instead a specific period in a couple's relationship.

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In a handful of states (listed below), heterosexual couples can become legally married without a license or ceremony. This type of marriage is called a common law marriage. Contrary to popular belief, a common law marriage is not created when two people simply live together for a certain number of years.

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To get a court order, you must prepare and file some paperwork. Fill-in-the-blank forms may be available free from the court or online. In a few states -- unfortunately, not many -- court personnel may be available to help with the paperwork. Some courts also have self-help law centers for family law cases, with forms and instructions for people representing themselves.

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When someone moves out of the house, one of you should go to court right away to quickly resolve any critical issues, such as spousal support. And, if the children will be staying with you, you should immediately file for custody and child support.

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Let's say a husband moves out, and the wife who's left behind needs money to feed and shelter the children. Realizing that her children would starve long before a full trial could be held, she is desperate for help. She can go to court to request a temporary order from a judge, even though a formal divorce action has not yet been filed. Her request will be put on a fast track, and a hearing will be scheduled within days or weeks.

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"No fault" divorce describes any divorce where the spouse suing for divorce does not have to prove that the other spouse did something wrong. All states allow divorces regardless of who is at "fault."

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I took my husband's name when I married, but now we're getting divorced and I'd like to return to my former name. How do I do that?

In most states, you can request that the judge handling your divorce make a formal order restoring your former or birth name. If your divorce decree contains such an order, that's all the paperwork you'll need. You'll want to get certified copies of the order as proof of the name change -- check with the court clerk for details. Once you have this official documentation, you can use it to have your name changed on your identification and personal records.

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QUESTION:

I am getting married; my first time, his second. I will be taking his name when we marry. Will there be any problems if his ex keeps her married name, too? We don't have the same first name.

ANSWER:

You will probably not incur problems -- after all, there are legions of people who have the same last name; you need only look in the telephone book under Smith to get hard evidence of this.

As long as your new mate's ex mate does not falsely hold herself out as still married to your man, any minor problems that may develop -- for example, your creditors' becoming confused -- should be easy to straighten out with a clear written explanation of who is and is not married to whom.

Copyright © 2005 Nolo

http://www.nrglaw.net

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Like a divorce, an annulment is a court procedure that dissolves a marriage. But, unlike a divorce, an annulment treats the marriage as though it never happened. For some people, divorce carries a stigma, and they would rather their marriage be annulled. Others prefer an annulment because it may be easier to remarry in their church if they go through an annulment rather than a divorce.

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