Thursday, 24 August 2017 16:51

"In What State Should I File?"

I often get questions like, “In what state should I file for custody, child support, etc.?”  Arizona has adopted the Uniform Child Custody Jurisdiction and Enforcement Act, along with most other states.  In order for Arizona to have jurisdiction over a child to establish a first custody order, Arizona must be the last state in which the child lived for six months.  For example, if a child lived in Arizona since birth until his or her ninth birthday, and then moved to California, Arizona would have jurisdiction over that child until the child had lived in California for six months, at which point California would have jurisdiction to enter a custody order for that child.  If the same child lived in California for a year and then moved back to Arizona, California would have jurisdiction over the child until the child lived in Arizona for six months, at which point jurisdiction would be in Arizona again. 
 
For children less than six months of age, jurisdiction lies in the state in which they lived from birth, until they move to another state for six months.  For example, if a child is born in Arizona, lives in Arizona for two months, and then moves to California, Arizona will have jurisdiction over that child until the child has lived in California for six months.
 
After a state’s court enters a custody order for a child, that state retains continuing, exclusive jurisdiction over that child as long as either the child or a parent still lives in that state, or that state’s court relinquishes jurisdiction because the child and a parent have moved to another state.  For example, if the parents of a child divorce in Arizona, the court in Arizona enters a custody order, the mother and the child move to California, and the father still lives in Arizona, Arizona still has exclusive, continuing jurisdiction over the child, even after the child has lived in California for over six months, unless the Arizona court relinquishes jurisdiction due to the move and other factors.  The California courts will not have jurisdiction to modify the Arizona custody order.
 
Arizona law provides exceptions to these jurisdictional rules, such as in emergency situations, but these are the general rules of child custody jurisdiction.
 
Jurisdiction for child support depends on other factors.  In order for a court to order a person to do something, such as pay child support, the court must have jurisdiction over that person, regardless of whether it has jurisdiction over the child.  Therefore, if a parent wants the court to order the other parent to pay child support, the court must have jurisdiction.  This usually means that the parent seeking child support must file in the state in which the other parent lives.  However, there are limited exceptions, mainly if the other parent enters the state and gets served, the state in which that parent received service will have jurisdiction, even though that parent lives in another state.  For example, if a parent who lives in California travels to Arizona and receives a summons and petition from a process server for a child support action in Arizona, the Arizona court has jurisdiction over that parent and can order that parent to pay child support.
 
If you have questions about child custody, legal decision making, parenting time, and child support jurisdiction, please contact Thomas A. Morton, PLLC for a consultation.
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A recent Arizona Court of Appeals decision addressed attributing overtime income and use of a medical insurance cost incurred for multiple people in calculating child support.  The court ruled that under the Arizona Child Support Guidelines, the family court may not attribute income over a normal full-time work schedule without a showing that the parent historically earned overtime income and anticipates earning the overtime income in the future. 
 
Also, the court must prorate the amount a parent spends on medical insurance when the amount is for the children in the child support calculation and others.  For example, a father pays for medical insurance through his employer for himself, Child A, and Child B.  Child A and Child B have different mothers.  In calculating child support for Child A, the court would use one-half of the difference between the employee cost and the employee plus family cost of medical insurance.
 
I often have child support cases in which one parent works part time at a second job or earns some overtime.  The question is always what amount of income will the court use for child support purposes.  The answer is that the court will usually use only the regular earnings from the main, full-time job.  Also, the scenario where the parent who provides insurance for individuals including the children in the child support calculation as well as others, such as other children.  The Court of Appeals has now resolved the question of whether we use the entire cost of insurance or we prorate it.
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Late last year the Arizona Court of Appeals ruled on a case in which the former husband filed for bankruptcy one month after the Family Court entered his divorce decree dividing the former wife's pension and a substantial amount of community debt.  People often consider filing for bankruptcy after their divorce or worry that their former spouse may file bankruptcy.  This case directly addressed the subject.

 

The Family Court evenly divided the former wife's pension and ordered each party to pay one-half of the wife's student loan debt, and allocated about $15,000 in credit card debt among the parties.  The former husband then immediately filed for Chapter 7 bankruptcy relief and received a discharge as to all of the debt.  The former wife then filed to set aside the Family Court's decree and to re-allocate her pension.  The trial court set aside the decree and awarded the former wife 100% of her pension because she was now stuck with all of the debt.

 

The Court of Appeals affirmed the trial court's ruling using the abuse of discretion standard, which means that if the trial court's ruling is consistent with the law and if there is an evidentiary basis for the ruling, then the appellate court will not disturb the trial court's ruling.  You can review the Court of Appeals Decision here: http://law.justia.com/cases/arizona/court-of-appeals-division-one-unpublished/2016/1-ca-cv-15-0540-fc.html

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You should hire an attorney to represent you in your divorce for several reasons.  The first and most important reason is that the attorney is not as emotionally invested in your case as you.  You are very emotional about your divorce and emotional people often make bad decisions, including decisions that cost them dearly in terms of money, family, and aggravation.  An attorney can give you good advice not clouded with anger or other emotions that hinder good judgment.
 
Another reason to hire an attorney is that the attorney knows the law and rules of procedure.  Many people think that they know the law, but they often do not know the law nearly as well as they think.  An attorney can give you advice based on working in this area of law every day.  An attorney knows the procedures, deadlines, and how to meet the deadlines.  This means that an attorney knows how to get the things done that you need to get done.
 
An experienced attorney knows the judges and how they tend to rule and think.  He knows what arguments to make to particular judges.  He knows how the judges tend to rule on what issues and what evidence.  For example, you may want to move your child to another state, and if you happen to have a judge that almost never allows such moves, an experienced attorney will know to use your one “free” change of judge.  An experienced lawyer will know what arguments your particular judge tends to find persuasive.
 
Another reason to hire an attorney is that, unfortunately, some judges tend to give attorneys a lot of credibility and listen to them, but they do not appear to do the same with unrepresented parties.  How many times have you heard someone say that the judge went along with everything that the opposing party’s attorney said, but disregarded everything the unrepresented party said?  A lot of this has to do with the attorney knowing what evidence to present and what arguments to make.  Some of it has to do with the attorney appearing regularly before the judge.  But some of it may be that some judges are more likely to place more weight with the attorney.
 
A good example is a divorce case that I recently completed.  The unrepresented opposing party missed deadlines, failed to submit evidence, made arguments that are contrary to law, seemed to have no idea how unreasonable the party was being, was extremely obnoxious in court, and seemed to make every decision based on anger and contempt toward my client..  A good attorney could have explained the law to this party, presented evidence, pushed the party towards more reasonable positions, met every deadline, and kept this party from engaging in obnoxious courtroom antics.  A good attorney could have settled the case without going to trial.  Instead, we went to trial and the trial was a disaster for this party.
 
I realize that it sounds self-serving for a divorce lawyer to say that everyone in a divorce needs a lawyer, but it is a fact.  I am a divorce lawyer and I would not go through a divorce without a lawyer.  Even if you don’t come to me for help with your divorce, you should go to another lawyer.  Good luck!
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Thursday, 13 April 2017 12:23

How Arizona Courts Calculate Child Support

Arizona courts calculate child support pursuant to the Arizona Child Support Guidelines.  The Arizona Supreme Court posted the Guidelines on its website here: https://www.superiorcourt.maricopa.gov/sscDocs/pdf/drs10hz.pdf
 
The Arizona Supreme Court also published an Arizona child support calculator here: http://www.azcourts.gov/familylaw/2015-Child-Support-Calculator
 
Parents can calculate child support using the online calculator.
 
The Arizona Child Support calculator uses a formula which calculates the basic child support amount based on the combined gross monthly income of the parents.  If a parent is purposely unemployed or underemployed, the court can attribute an income that the court believes that parent can earn.  The court will generally not include overtime or income from a second job when that parent already has a full-time job.  The gross monthly income may change due to support a parent provides for children that are not common to the parties.
 
After determining the basic child support amount from the combined gross monthly income of the parents, the calculator divides that amount proportionately to each parent’s income to determine the child support amount.  Then, the calculator makes adjustments based the cost of medical/dental/vision insurance, day care costs, the number of parenting time days, and, in some cases, extraordinary child costs.  Extraordinary child costs are costs associated with a gifted or disabled child.  After making these adjustments, we have the guideline child support amount.
 
After determining the guideline child support amount, the court may, on rare occasions, deviate from the guideline amount if the court finds that doing so is in the best interests of the child.
 
If you have questions about child support in Arizona, please give me a call.
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The United States Supreme Court will hear oral argument next month on an Arizona case regarding a retired service member’s retired pay and disability pay.  The couple’s divorce decree ordered them to evenly divide the service member spouse’s military retired pay.  A few years later, he decided to accept disability pay in lieu of part of his retired pay.  This is a common decision because the government taxes military retired pay but not disability pay.  However, this decision reduced his military retired pay and therefore reduced his former spouse’s half of his military retired pay.  The Arizona Supreme Court ruled that the service member spouse’s acceptance of disability pay could not reduce the dollar amount that his former spouse received.  The United States Supreme Court accepted this case for review last month.
 
The Uniformed Services Former Spouses Protection Act is a federal law that allows state courts to divide a spouse’s military retired pay upon divorce.  There is no federal law authorizing state courts to divide disability pay.  Arizona courts have found that the service member spouse cannot use the disability pay option to reduce the dollar amount that his or her former spouse receives.  Now the United States Supreme Court will decide whether this is correct.
 
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Thursday, 09 February 2017 10:10

Arizona Child Support Modification

What changes in circumstances affect the child support calculation in Arizona?  In Arizona, the family court can modify child support orders when a party shows a substantial and continuing change in circumstances.  The changes that may affect the child support calculation include an increase or involuntary decrease in income, a change in parenting time, a child’s emancipation, the birth of more children, and changes in the cost of medical or dental or vision insurance and day care.
 
When one or more of these factors significantly changes the child support calculation, it may be time to file a petition to modify child support.  Parents should not procrastinate if they decide to modify child support because the court will not modify the amount back to the date the change occurred.  The court can only modify the amount back to the date of service upon the other party.
 
You may use the simplified process when your petition shows a change in child support of at least 15%.  To file for a simplified modification of child support, you file a petition, child support worksheet, and a proposed order for the court to sign.  You also pay a fee to the court.  After you file, you serve your petition, child support worksheet, and proposed order on the other parent.  The other parent must then request a hearing or the court will enter your order.
 
To file a regular modification of child support, you file your petition, child support worksheet, and affidavit of financial information, along with a blank order to appear.  You also pay the court’s fee.  Once the court issues its order to appear, you serve the petition, child support worksheet, affidavit of financial information, order to appear, and a blank affidavit of financial information on the other parent.
 
At the hearing, you should have all of your documents in order and have copies to submit into evidence.  The key to child support modification is to not delay filing and to have evidence to prove everything you tell the court.
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Wednesday, 25 January 2017 14:42

When You Can Change Your Judge in Family Court

In Arizona family courts, every party gets one “free” change of judge and one “free” change of commissioner as matter of right.  This means that you can change your judge (or commissioner) once and not have to give a reason.  An experienced family law attorney may be able to tell whether you should strike a particular judge or commissioner.
 
The time limit to change the judge varies, depending on circumstances, but parties must in general file their notice of change of judge within 90 days of joining the suit, 10 days after assignment of a new judge, and more than three business before a hearing.  The rules of procedure contain several exceptions.
 
Also, a party wishing to change a judge must do so before the judge rules on any contested issue, and before a conference, hearing, or trial begins.  A party may not strike a judge if that party has previously agreed to that judge’s assignment.
 
If a party cannot change the judge as a matter of right, the party can only remove the judge for cause.  The only grounds to remove a judge for cause are if the judge was an attorney in the case prior to becoming a judge; the judge is otherwise interested in the action; the judge is kin or otherwise related to a party; the judge is a material witness; or on account of the judge’s bias, interest, or prejudice the party cannot get a fair and impartial trial.  These grounds are very rare and courts very seldom remove a judge from a case for cause.
 
If you need advice regarding removing a judge from your case, contact my office to set up a consultation.
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A mother in Minnesota who defied family court orders and hid her children from their father for two years has not only lost custody of her children to their father, but she has been convicted on criminal charges for doing so and will go to prison for eight months.
 
I have dealt with these extreme cases in Arizona.  Sometimes, the other parent even goes so far as to move the children to another state in an attempt to hide them and destroy their relationship with the other parent.  If this happens to you, don’t give up.  Immediate and aggressive action in Family Court will often ultimately result in you getting your children back.  Judges don’t like this sort of game.
 
Here is the article about the mother in Minnesota who hid her children from their father for two years:
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Thursday, 15 September 2016 10:23

Do's and Don'ts of Custody Cases in Arizona

Here are some things to avoid and some things to do when you have a custody/legal decision making/parenting time battle with the other parent of your children.
 
DON’T:
 
1. Send angry text messages or email to the other parent.  Anything you write that is inappropriate or makes you look violent, threatening, reckless, etc. will hurt your case if the judge sees it and you can bet that the other parent will show it to the judge.
 
2. Post anything dumb on social media.  The same goes for social media.  Also, portraying a party lifestyle, or posting pictures of guns, or posting about the new person you are dating can also hurt your case.  In fact, don’t use social media at all.
 
3. Say anything dumb.  You never know if someone is recording what you are saying.
 
4. Do anything dumb.  In my career, I have seen all kinds of dumb things that people get caught doing while they are fighting for their children.  Don’t commit crimes, drive drunk, do drugs, disappear, hide the children, make death threats, or do anything else that will hurt your case if the judge finds out about it.
 
5. Call the other parent incessantly or in the middle of the night.  Don’t make yourself look like a stalker, harasser, or abuser.
 
6. Put your children in the middle of the conflict with the other parent.  This almost always backfires.  More importantly, it is very bad for your children.
 
7. Allow the other parent to push you around.  This doesn’t mean that you should act aggressively or be unreasonable.  However, don’t move out of the house just because the other parent told you to move out.  This makes the other parent the de facto primary residential parent.  Don’t put up with the other parent withholding the children from you.  If the other parent withholds the children and you file with the court right away, you will get to see your children sooner.  If you put up with it for a long time, then you don’t look like your children are your priority when you do get around to filing with the court.
 
8. Be unreasonable.  Three quarters of getting what you want in Family Court is being reasonable.  Don’t withhold the children from the other parent unless you have a very good reason. Most often, a very good reason is drugs or severe abuse.  Don’t take away the car that the other parent is driving or remove his or her insurance.
 
9. Wait.  There is little advantage to filing first, but you should not put off filing with the court.  The sooner the court establishes your rights the better.  If the other parent is withholding the children or allowing very little contact with the children, the sooner yo file the sooner it will stop.
 
10. Give up.  You have a long-term goal.  It may seem like you are losing now, but you will not lose in the long run if you do the right things and don’t give up.
 
DO:
 
1. Assume the judge will see anything you write or post.  Only write and post things that you will not be afraid to explain to the judge.
 
2. Assume the judge will hear anything you say.  Only say things that you will not be afraid to explain to the judge.
 
3. Communicate in writing with the other parent as much as possible.  People can lie about what you said, but they can’t lie about what you wrote.
 
4. Remain civil with the other parent.  Not being civil hurts your case.  Being civil helps your case.  More importantly, this is what is best for your children.
 
5. Cooperate with the other parent to the extent possible.  Show the judge that you are the reasonable, cooperative parent.
 
6. Focus on the best interest of your children, not on what is best for you or how mad you are at the other parent.  This is the most important step in not screwing up your children during your legal dispute with the other parent.  It will also help your case.
 
7. Send civil, detailed emails to the other parent regarding decisions that the two of you must make for your children.  Show the judge that you can co-parent and make responsible decisions.  If the other parent responds in kind, you have begun a good co-parenting relationship with the other parent, which is good for your children.  If the other parent refuses to respond or responds inappropriately, you have created evidence favorable to your case.
 
8. File quickly.  Waiting usually hurts you.
 
9. Hire an attorney.  This may sound self-serving, but you don’t do this every day. An attorney does do this every day.  An attorney knows the law, knows the judges, knows the procedure, knows the ins and outs of custody battles, knows what is persuasive, and can look at your case with an unemotional eye.  Your children are worth it.
 
10. Try to settle.  The two people in the whole world in the best position to make decisions in the best interest of your children are you and the other parent.  If you and the other parent cannot make a decision on your own, a stranger who doesn’t know you, the other parent, or your children, but who happens to be a judge, will listen to two or three hours of evidence and make a decision for you.  It might be a decision you hate.
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Thomas A. Morton, P. L. L. C.
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