Every Parent Has an Obligation to Support His or Her Children.

Arizona law provides that every parent has a duty to provide financial support to his or her children until the children reach the age of majority.  In most circumstances, the age of majority for child support purposes is 18 years or when the child graduates from high school, whichever is later, up to the age of 19 years.  In the case of a disabled child who cannot provide for his or her needs and remains dependant on his or her parents for support, Arizona courts may order a parent to continue to financially support the child past the age of majority.

Arizona Has No Statute of Limitation on Arrears.

Arizona law provides no statute of limitation on child support arrears.  Once a court orders a parent to pay child support, and that parent does not pay child support, there is no statute of limitation on collection of the resulting arrears.  Similarly, judgments for child support arrears do not expire in Arizona.

However, if a court does not enter an order for child support and the custodial parent seeks child support several years after the child’s birth, Arizona law provides that the court may enter judgment for past child support, but only for the last three years.  For example, if a woman gives birth to a baby girl the father never provides financial support to the child, and the mother sues the father for child support when the child is six years old, the court may only grant a judgment for past child support for the time when the child was three to six years old.

Missed Child Support Payments Collect Interest.

Interest on missed child support payments (arrears) in Arizona is ten percent per year.  There is no statute of limitation on interest on child support arrears or judgments for interest on child support arrears.  However, a judgment for past child support only begins to accrue interest when the court grants the judgment.  In other words, a parent can get a judgment for past child support, but not for past interest on past child support.

Do Not Wait to Collect Child Support Arrears.

Although there is no statute of limitation on child support arrears in Arizona, parents should not wait to collect the arrears and enforce the child support order.  When large amounts of arrears and interest accumulate, the chances of successfully collecting or successfully collecting in a timely manner on the arrears decrease.

If you have a child support collection problem, Thomas A. Morton can help you.

 

 

 

 

 

 

Published in Blog

Many people go through a divorce, receive a money judgment against their former spouse for something other than child support or spousal maintenance, and then do not know what to do with it when the other former spouse does not pay the judgment.  Unlike a child support judgment or a spousal maintenance judgment, the State of Arizona will not help you enforce the judgment and you must do so yourself.  Different rules apply to different kinds of judgment, but this article is only about a regular money judgment, such as for property.

The first thing you should do with a money judgment is record it with the county recorder.  Often, the best choice for your second step in collecting a judgment is a wage garnishment.  This depends on whether the judgement debtor has a wage-earning job.  Arizona state law limits the amount that you can garnish from the other party’s paycheck.  Federal law also limits what a judgment creditor may garnish from a judgment creditor’s paycheck, but federal limits are the same as Arizona’s limits. Creditors can only garnish nonexempt wages, and the amount they can take is generally limited to 25% of net pay.

The players in a wage garnishment are the court, the judgment creditor (the person who has the judgment against the other person), the judgment debtor (the person who has a judgment against him or her), and the garnishee (the judgment debtor’s employer).

A wage garnishment is an order from a court that a judgment creditor serves on the garnishee, called a writ of garnishment.  The writ of garnishment requires the judgment debtor’s employer to withhold a certain amount of money from the judgment debtor’s paycheck and send this money directly to the judgment creditor.

A creditor holding a regular money judgment can start a garnishment proceeding when he or she has a judgment signed by the court.  Certain other types of creditors, such as the IRS, the Department of Revenue, a person to whom you owe child support, or an entity holding a defaulted student loan, have different rules.

Arizona law limits how much money a judgment creditor may take from a judgment debtor’s paycheck through a wage garnishment.  A court may issue a writ of garnishment of no more than 25% of the judgment debtor’s non-exempt net earnings; or the amount of a judgment debtor’s non-exempt net weekly earnings that exceed 30 times the federal minimum wage.  "Net earnings" means the judgment debtor’s wages minus deductions that the employer makes that the law requires, such as income tax withholding.  "Non-exempt" earnings means income that is not exempt pursuant to law.  Examples of income that is exempt pursuant to law include Social Security Disability, VA disability, and child support.  There are other examples, but these are the most common examples.

The judgment debtor also has a right to request a hearing to contest the validity of the garnishment.  The judgment creditor can also use the hearing to ask the court to lower the amount that the garnishee withholds from 25% to 15% of his or her net earnings.  Also, only 25% of a judgment debtor’s net earnings is subject to garnishment.  This means that two judgment creditors may not garnish 25% of the judgment debtor’s earnings apiece; only 25% of the judgment debtor’s earnings is subject to garnishment no matter how many judgment creditors are seeking a wage garnishment.

A writ of garnishment is a hassle for many employers and some may rather terminate an employee instead of continue to comply with the writ of garnishment.  However, pursuant to federal law, the garnishee may not terminate the judgment debtor for one garnishment but, federal law does not protect a judgment debtor with two garnishments from termination.  In Arizona, a garnishee cannot fire a judgment debtor because you have a child support withholding order.   Employers may ask new hires, returning employees, or rehired employees to disclose whether they have an existing child support withholding order, but the employer cannot base any hiring or firing decisions on such information.

Not many family law attorneys do collection work on their clients’ judgments that are not for family support.  If you have a money judgment to collect or have someone seeking to collect from you, contact Thomas A. Morton, PLLC for a consultation.

Published in Blog

The Superior Court's website in Maricopa County has many useful forms for people representing themselves in court.  The family law category of forms is the most impressive, with forms for divorce, annulment, legal separation, child support, spousal maintenance, alimony, temporary orders, custody/legal decision making, parenting time, and many other topics.  I do not particularly like the forms because they are too long, sometimes don't make much sense, and lack flexibility, but they are far better than the alternative of not submitting anything at all, or someone with no legal background or training attempting to write court filings.  If you decide to use the court's forms, my advice is to do so with the advice of an experienced lawyer.  However, if you are using the forms, it is probably because you cannot afford a lawyer.  In that case, be very careful about what you sign and submit to the court.  Do not be afraid to cross out requests in the form that you do not want to make.

 

Aside from forms for family law, the court's website has many useful forms for probate, juvenile law, civl law, and powers of attorney.  The court has sufficient probate forms to complete an entire informal probate from beginning to end, juvenile court forms sufficient to complete a voluntary guardianship, and four powers of attorney sets of forms (general power of attorney, special power of attorney, parental power of attorney, and revocation of power of attorney).  The court also provides detailed instructions for its forms.

 

Again, my usual advice is to hire an attorney because attorneys have experience, are familiar with the judges, have an emotional detachment to your case, and know the potential pitfalls.  However, sometimes doing something on your own is better than doing nothing and the reality is that not everyone can hire an attorney.

 

This is the link to the Maricopa County Superioe Court's forms (Self Service Center): http://www.superiorcourt.maricopa.gov/SuperiorCourt/Self-ServiceCenter/

 

Good luck!

Published in Blog

The distinction between sole and separate property and community property could have significant consequences in a divorce in Arizona.  Arizona law defines community property as most property acquired by either spouse beginning the day they marry and ending the day one spouse serves the other spouse with a petition for dissolution of marriage.  The significant exceptions are an inheritance to one spouse, a gift to one spouse, and pain and suffering damages from a personal injury claim.  Arizona law defines sole and separate property as property acquired prior to the date of marriage, after the date of service in a divorce, gifts to one spouse, one spouse’s inheritance, and pain and suffering damages.

This sounds like a simple distinction, but sometimes the issue becomes more complicated.  For example, if a spouse has money in a bank on the day of marriage, it is that spouse’s separate property.  What if that spouse puts that money into a community property bank account after marriage?  The law presumes co-mingled assets to be community property, but a spouse can trace the separate assets and, if that spouse can do so by clear and convincing evidence, the property will retain its sole and separate characterization.

Suppose a spouse owns a house prior to marriage, sells the house, and uses the proceeds to purchase a new house, taking title with the other spouse as community property.  That spouse has made a gift to the marital community unless the other spouse has agreed in writing to the contrary.  The law presumes property acquired during marriage to be community property.

Also, spouses can agree to change the characterization of property.  They can agree to make sole and separate property into community property and vice versa.

Other issues as to the characterization of property include the growth of separate property due to community labor, the payment of debt secured by sole and separate property with community funds, and the vesting of property earned during the life of the marital community that perhaps compensates for future (post-divorce) employment (such as stock options).

Also, sole and separate property is not necessarily simply separate property for the family court to confirm to the spouse that owns it.  It may influence several different issues.  For example, sole and separate property that produces income will have an effect on the calculation of child support and will have an effect on spousal maintenance.  It may also have an effect on the determination of an award of attorney’s fees to one spouse.

The characterization of sole and separate property and community property is an important issue in Arizona divorce and is not always as simple as it seems.  If you are facing a divorce and have significant property, you should consult an experienced family law attorney.

Published in Blog
Thursday, 07 August 2014 11:33

When Does Arizona Child Support End?

In Arizona, parents have a legal obligation to provide basic support to their children.  Typically, the parent in whose home the children reside most of the time receives child support from the other parent.  Arizona courts typically base child support on a formula that includes each parent’s income, the time the children spend in each home, the number and age of children, the cost of medical/dental/vision insurance, and the cost of child care.  The court will not scrutinize how parents spend the child support money.

So when does the obligation to pay child support to the other parent end?  Keep in mind that child support is a separate issue and the obligation to pay it does not end because the other parent has violated another court order, such as a parenting time order.  Typically, the obligation to pay child support ends when the child reaches the age of 18 years and has graduated from high school.  For example, if a child turns 18 years old in December of his senior year of high school and graduates in May of the following year, the obligation to pay child support will end after May (the month the child graduates).  For a further example, if a child graduates from high school in May and turns 18 years old the following September, the obligation to pay child support will end after September (the month the child turns 18).  Does this mean that if a child never graduates from high school, the obligation to pay child support never ends?  No.  If a child does not graduate from high school the obligation to pay child support ends after the child turns 19 years old.  Please also note that the final month of child support is for the entire month - the parent paying child support does not get a pro-rated discount when a child graduates or has a birthday in the middle of the month.  For example, an 18-year-old child graduates from high school on May 21.  The parent paying child support still has to pay the entire child support amount for the month of May.  Finally, in rare cases Arizona courts will order a parent to pay child support beyond graduation from high school, the 18th birthday, and the 19th birthday.  Arizona courts will do this in cases involving a child with a disability severe enough that the child will be unable to live independently and be self-supporting and if the child’s disability began before the age of majority.

What are some examples of when the child support obligation does not end?  One example is when the other parent violates the parenting time order and withholds the children.  Another example is when the Arizona juvenile court severs parental rights.  Many people think they can avoid their child support obligation by getting the court to sever their parental rights.  However, the obligation to pay child support does not end with severance of parental rights.  It does, however, end with a subsequent adoption of the child.  Also, child support does not automatically change when one child emancipates but other children are still under the age of 18 years.  For example, a father pays $500 per month as child support for his two children.  One child turns 18 years old and has graduated from high school.  The child support amount does not automatically change to $250 per month.  The father must still pay $500 per month until the court changes the child support order.  This is because the number of children is only one factor among many that Arizona family courts use to calculate child support.  In the example, the father must petition the court to reduce child support, but he should also consider other possible changes in circumstances, such as an increase in income or an increase in medical insurance premiums.

If you have a question about child support, or any other Arizona family law matter, please contact Thomas A. Morton, PLLC for a consultation.

Published in Blog
Thursday, 24 July 2014 15:03

Arizona Community Property Basics

Arizona law divides a married couple’s property into two groups: community property and separate property.  Community property is the property that belongs to the husband’s and wife’s marital community.  Simply put, it belongs to both the husband and the wife.  Separate property is property that belongs to one spouse only.

Arizona law presumes all property acquired by either spouse or both spouses from the date of marriage until the date that one spouse serves the other spouse with a petition for divorce or legal separation to be community property (except for property that was a gift to one spouse only, an inheritance by one spouse only, and most of a personal injury settlement or award).  Upon divorce or legal separation, the court will equitably divide the community property.  Usually, "equitably" will mean substantially equally.  Under limited circumstances, when the normal equities of marriage have not occurred, the court may divide community property substantially unevenly.  One example is if the spouses separate and live apart for several years, one spouse becomes a teacher during the separation, and then the parties divorce.  In that case, the court may divide the teacher spouse’s retirement unevenly.  The example from the Arizona Supreme Court is when spouses marry, the next day they buy a house together with one spouse’s separate property (money he had prior to the marriage), and two weeks later they file for divorce.

Also, property can change its characterization over time from separate property to community property or vice versa.  Courts call this transmutation.  This can occur by gift, such as when the spouses decide to refinance one spouse’s separate property house and sign a new deed accepting the property as community property.  It can also occur by commingling, such as when one spouse deposits separate funds into a joint account and, over time, enough transactions occur to make it impossible to trace the separate funds. Community property can also become one spouse’s separate property, but this is much more difficult to prove and the spouse making this claim has the burden to prove it by a higher standard of proof than normal.  When determining whether property has transmuted, Arizona courts use the inception of title rule, which says that property retains its characterization as separate or community unless the spouses undertake some affirmative action that changes the characterization, such as signing a new deed or comingling as discussed above.

Characterizing property as community or separate may seem straight forward (and usually is straight forward), but there are some potential complexities.  One example is when the marital community expends funds or labor on improving or paying secured debt on one spouse’s separate property.  The marital community may have a lien for the increased value and, in the case of community payments on debt secured by separate property, for the community funds spent to pay the secured debt.  However, when a spouse spends his or her separate funds to improve community property, the law presumes the expenditure to be a gift to the marital community.  A spouse must prove an express agreement to the contrary to overcome this presumption and must do so by a higher standard of proof.

Another complexity is the theory of quasi community property.  When spouses marry in a non-community property state and move to Arizona, upon divorce Arizona courts will treat the spouses’ property acquired in the previous state of residence as community property if the property would have been community property had the spouses acquired it in Arizona.  The quasi community property rule also applies when a creditor is attempting to collect a debt of one spouse incurred in another state if the debt would be a community debt if the spouse incurred it in Arizona.  This means that if one spouse incurs a debt in a non-community property state and the couple then moves to Arizona, a creditor can collect against community property (such as either spouse’s employment income) if the debt would have been a community debt had they incurred the debt in Arizona.

This is just a basic overview of Arizona’s community property laws.  It may answer many questions, but is by no means comprehensive.  For example, this article does not address the characterization of employee stock options.  You should seek an experienced family law attorney’s advice when determining issues like community property.  Thomas A. Morton is an experienced family law attorney in Phoenix, Arizona who you may contact for a consultation on this subject.

Published in Blog
Thursday, 10 July 2014 15:17

Arizona Spousal Maintenance Basics

The Arizona spousal maintenance statute sets forth a two-part determination regarding spousal maintenance.  This is the statute in its entirety:

Arizona Revised Statute § 25-319

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

1. Lacks sufficient property, including property apportioned to the spouse, to provide for that spouse's reasonable needs.

2. Is unable to be self-sufficient through appropriate employment or is the custodian of a child whose age or condition is such that the custodian should not be required to seek employment outside the home or lacks earning ability in the labor market adequate to be self-sufficient.

3. Contributed to the educational opportunities of the other spouse.

4. Had a marriage of long duration and is of an age that may preclude the possibility of gaining employment adequate to be self-sufficient.

B. The maintenance order shall be in an amount and for a period of time as the court deems just, without regard to marital misconduct, and after considering all relevant factors, including:

1. The standard of living established during the marriage.

2. The duration of the marriage.

3. The age, employment history, earning ability and physical and emotional condition of the spouse seeking maintenance.

4. The ability of the spouse from whom maintenance is sought to meet that spouse's needs while meeting those of the spouse seeking maintenance.

5. The comparative financial resources of the spouses, including their comparative earning abilities in the labor market.

6. The contribution of the spouse seeking maintenance to the earning ability of the other spouse.

7. The extent to which the spouse seeking maintenance has reduced that spouse's income or career opportunities for the benefit of the other spouse.

8. The ability of both parties after the dissolution to contribute to the future educational costs of their mutual children.

9. The financial resources of the party seeking maintenance, including marital property apportioned to that spouse, and that spouse's ability to meet that spouse's own needs independently.

10. The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment and whether such education or training is readily available.

11. Excessive or abnormal expenditures, destruction, concealment or fraudulent disposition of community, joint tenancy and other property held in common.

12. The cost for the spouse who is seeking maintenance to obtain health insurance and the reduction in the cost of health insurance for the spouse from whom maintenance is sought if the spouse from whom maintenance is sought is able to convert family health insurance to employee health insurance after the marriage is dissolved.

13. All actual damages and judgments from conduct that results in criminal conviction of either spouse in which the other spouse or child was the victim.

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

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

As you can see, Subsection A is the first part of analysis and addresses the threshold question: is a particular spouse entitled to an award of spousal maintenance.  If the answer is no, the analysis ends.  If the answer is yes, the court proceeds to the second part of the analysis set forth in Subsection B to address the questions of the monthly amount of spousal maintenance and the duration of spousal maintenance.

Note also that Subsection C says that the parties may agree that the spousal maintenance award may not be modified.  Unless the parties make this agreement, spousal maintenance is subject to modification until the duration of the award ends.  The Arizona Supreme Court has ruled that this section actually means what it says - if the parties agree that the award is not modifiable, it is not modifiable for any reason with no exceptions.

A couple of the ways that judges determine the monthly amount of spousal maintenance is that some use the guidelines authored several years ago by the Maricopa County Superior Court.  The guidelines are not the law.  The Superior Court created them after studying many spousal maintenance cases as a way for litigants and attorneys to attempt to predict the likely award if they go to trial.  One judge used the guidelines to determine a spousal maintenance award and the Court of Appeals ruled that trial courts may not do that - they must actually use the factors in Subsection B.  Later, some judges used the guidelines and said in their orders that they considered the factors in Subsection B.  This time, the Court of Appeals ruled that this is sufficient.  The guidelines are the difference in net monthly incomes of the parties times .015 times the number of years of marriage.  For example, if Husband’s net monthly income is $5,000, Wife’s net monthly income is $2,000, and the parties have been married for 20 years, the calculation is ($5,000 - $2,000) x .015 x 20.  In this case, the guideline amount for monthly spousal maintenance is $900.

The other way to determine the monthly amount of spousal maintenance is to determine the spouse’s monthly reasonable needs, subtract his or her monthly income (or what she is capable of earning), determine the paying spouse’s monthly income (or what he or she is capable of earning), subtract his or her reasonable needs, and see if the money left over is enough to make up the other spouse’s monthly deficit.

If you have a spousal maintenance issue or have questions about spousal maintenance, contact Thomas A. Morton.  I offer a consultation of about one hour for a flat fee that is substantially less than my hourly rate.  Thomas A. Morton is a Phoenix, Arizona divorce and family law attorney.

Published in Blog
Thursday, 26 June 2014 13:09

Ways to Ruin Your Divorce Case

Over the years I have seen many ways for people to ruin their divorce case.  I know that I have not come close to seeing them all, but I have seen several ways that people hurt themselves in their divorce.  Some ways are more common than others.  The following list is some of the more common ways that people hurt themselves in family court.

Lie to your lawyer or withhold information from your lawyer.  Your lawyer’s advice, analysis, and strategy depends on what you tell him.  If, for example, he proceeds under the assumption that you have never used illegal drugs because you lied to him about it, the family court consequences of your drug use will probably go from bad to worse.  If you get caught lying about anything, the judge will never believe anything else you say.  Credibility is a very important factor in any contested family law case.  Furthermore, the judge will most likely not be upset with your lawyer, he or she will be upset with you.

Miss court hearings.  This actually happens once in a while.  People usually do this because they assume the court will continue the hearing or because they do not think that they have to attend.  Sometimes, people just do not respect our legal system.  Whatever the reason, the consequences can be disastrous.  Never assume that the court will postpone a hearing or that you do not have to attend a hearing and always have enough respect to at least show up.

Don't cooperate with your lawyer.  Your lawyer asks for things for a reason.  Missing deadlines can have bad consequences, such as the court refusing to review your evidence.  Your failure to provide information to your lawyer may result in his inability to present a strong case on your behalf.  Some people think that when they hire a lawyer they no longer have to do anything about their case.  Nothing could be further from the truth.

Don’t hire a lawyer.  Some people think that they don’t need a lawyer and then cannot believe that they got a bad result.  Next, they seek a lawyer to "fix" the result.  Usually, it is too late to do much (if anything).  Just as often, an experienced lawyer could have prevented the bad result.  Lawyers are familiar with the individual judges, know how to get things done in family court, know the potential pitfalls, have the knowledge to think things all the way through, and can give advice and make decisions that they did not base on the emotions that their clients feel during a divorce.

Ignore your lawyer's advice or don’t take it.   Why would someone hire a lawyer (and pay them a lot of money) and then ignore the advice they that they bought?  An experienced lawyer gives good advice because he or she has built that advice and knowledge with practical experience.  Sometimes people opt to listen to friends or family instead of their lawyer.  Sometimes, this badly hurts their case.  Sometimes, ignoring your lawyer’s advice bears no ill consequences, but this does not mean that the lawyer was wrong.  It really means that they took a risk and got lucky.  However, as the old saying goes, if you keep rolling the dice sooner or later they’re going to come up snake eyes.

Alienate your lawyer.   Ways to alienate your lawyer include not paying your bill, abusing your lawyer, abusing your lawyer’s staff (this is the one thing that I never tolerate from a client), lie to your lawyer, threatening your lawyer, and doing many of the other things on this list.  Alienating your lawyer will usually not result in anything bad for you.  No matter how much a lawyer dislikes the client, most lawyers will still do a good, professional job for the client.  However, lawyers are human and you can never tell how a lawyer’s reaction will affect the lawyer’s work.  Also, if you alienate your lawyer enough, for example by persistently refusing to pay for services or continually abusing staff, the lawyer may withdraw from representation.

Be unreasonable.  Three-quarters of getting what you want in family court is being reasonable.  Being unreasonable damages your credibility, angers the judge, and subjects you to monetary sanctions.  Focusing on your anger at the other parent, for example, will tell the judge that your focus is not your children’s best interest.  It will also badly damage your credibility.  Also, you will obviously not get what you want.

Look for the cheapest lawyer.  You do not always get what you pay for.  Personally, I think that some of the high-priced lawyers in the Phoenix area are not worth half what they charge their clients.  However, there is still something to this old saying.  If you hire a lawyer who accepts a ridiculously low fee, that lawyer will probably do the minimal amount of work to avoid malpractice.

If you avoid these pitfalls and use common sense, you have a much better chance of success in family court.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Published in Blog
Saturday, 23 November 2013 16:21

Spousal Maintenance and Alimony Basics

Most divorcing couples in Arizona only have a vague understanding about spousal maintenance (also known as alimony). Most people think that spousal maintenance means that the former husband must continue to support the former wife indefinitely. That is the result sometimes, but there are many different results and variations in a spousal maintenance case.

The State of Arizona has enacted specific statutes to guide judges and divorcing couples regarding spousal maintenance.

Arizona’s Spousal Maintenance Statutes

The court must first determine whether a spouse seeking spousal maintenance is entitled to an award of spousal maintenance. In making this determination, the court will examine whether the spouse seeking spousal maintenance meets the following factors:

1. Lacks sufficient property, including property apportioned to the spouse, to provide for that spouse's reasonable needs.

2. Is unable to be self-sufficient through appropriate employment or is the custodian of a child whose age or condition is such that the custodian should not be required to seek employment outside the home or lacks earning ability in the labor market adequate to be self-sufficient.

3. Contributed to the educational opportunities of the other spouse.

4. Had a marriage of long duration and is of an age that may preclude the possibility of gaining employment adequate to be self-sufficient.

Generally, healthy spouses who have a good job or career, are young, or who had a marriage of less than five years will not get an award of spousal maintenance. However, there are exceptions, such as a spouse leaving a marriage of less than five years who did not work at all during the marriage, or a spouse with a good, but modest income leaving a marriage with a high standard of living because the other spouse developed a much higher income during the marriage.

After determining that a spouse is entitled to spousal maintenance, the court must examine the following factors to determine the monthly amount of spousal maintenance, and the duration of spousal maintenance. 

1. The standard of living established during the marriage.

2. The duration of the marriage.

3. The age, employment history, earning ability and physical and emotional condition of the spouse seeking maintenance.

4. The ability of the spouse from whom maintenance is sought to meet that spouse's needs while meeting those of the spouse seeking maintenance.

5. The comparative financial resources of the spouses, including their comparative earning abilities in the labor market.

6. The contribution of the spouse seeking maintenance to the earning ability of the other spouse.

7. The extent to which the spouse seeking maintenance has reduced that spouse's income or career opportunities for the benefit of the other spouse.

8. The ability of both parties after the dissolution to contribute to the future educational costs of their mutual children.

9. The financial resources of the party seeking maintenance, including marital property apportioned to that spouse, and that spouse's ability to meet that spouse's own needs independently.

10. The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment and whether such education or training is readily available.

11. Excessive or abnormal expenditures, destruction, concealment or fraudulent disposition of community, joint tenancy and other property held in common.

12. The cost for the spouse who is seeking maintenance to obtain health insurance and the reduction in the cost of health insurance for the spouse from whom maintenance is sought if the spouse from whom maintenance is sought is able to convert family health insurance to employee health insurance after the marriage is dissolved.

13. All actual damages and judgments from conduct that results in criminal conviction of either spouse in which the other spouse or child was the victim.

If both parties agree, the maintenance order and a decree of dissolution of marriage or of legal separation may state that its maintenance terms shall not be modified. This means that if the parties agree, spousal maintenance will not be modified for any reason. The Arizona Supreme Court has ruled that this actually means for any reason, even if the spouse paying spousal maintenance becomes completely disabled. 

The court will maintain continuing jurisdiction over the issue of maintenance for the period of time maintenance is awarded.

Spousal Maintenance Guidelines

Several years ago, the Superior Court in Maricopa County, Arizona issued spousal maintenance guidelines. The guidelines were never substantive law that courts must follow, but were an attempt to give people a formula that they could use to try to predict a judge’s ruling regarding the amount and duration of spousal maintenance. The Superior Court formulated the guidelines after studying spousal maintenance awards on Maricopa County of a period of several years.

The formula for monthly amount is the difference between the net monthly incomes of the parties multiplied by .015, multiplied by the number of years of the marriage, or

(Higher Income - Lower Income) x .015 x Years of Marriage = monthly amount

For example, according to the guidelines, in a case where the husband’s net monthly income is $7,000, the wife’s net monthly income is $2,000, and marriage lasted ten years, the husband could expect to pay spousal maintenance in the monthly amount of $750 ((7,000 - 2,000) x .015 x 10 = 750).

What divorcing couples must realize, however, is that the guidelines are not the law. (In fact, I have dealt with attorneys who I wished had understood this). The Arizona Court of Appeals has ruled that judges must make rulings based upon the statutory factors, not the guidelines.

Additional Alimony Advice

The first step to receiving spousal maintenance/alimony is to have an experienced divorce attorney negotiate an agreement for it. However, if negotiations fail, an experienced attorney will make your case to the court.Men generally do not realize they may be eligible for spousal maintenance.

Many people believe that only women get spousal maintenance, but the law is gender-neutral. I will admit that many judges are much more harsh with spousal maintenance cases brought by men, but this is not the law and why we have a court of appeals.  

Arizona is a no-fault divorce state. Courts do not consider marital misconduct in a spousal maintenance case.

Also, the federal and state governments tax spousal maintenance to the receiving spouse. In other words, a spouse paying spousal maintenance deducts the payments from his or her income on his or her tax return and the spouse receiving spousal maintenance must declare the payments as income on his or her tax returns.

Finally, a spousal maintenance award is not always set at the same amount for the entire duration. For example, a court may award $1,000 per month for 24 months, $750 per month for 24 months thereafter, $500 per month for 12 months thereafter, and $250 per month for 12 months thereafter.

If you have spousal maintenance/alimony questions, contact Thomas A. Morton in Phoenix, Arizona.

 

 

Published in Blog
Saturday, 16 November 2013 20:16

What Happens to Real Estate in a Divorce?

What happens to jointly-held property, specifically real estate, when a married couple divorces in Arizona? It depends on what the divorce decree says, but first, let’s look at different ways couples hold joint property. They can hold property in joint tenancy, which means that each spouse holds an undivided one-half interest in the property and that, if one spouse dies, the other spouse owns the property: the deceased spouse cannot leave the property to someone else in a will. A married couple can also hold property as community property, which means that the marital community owns the property and if one spouse dies, the other spouse owns the property, like in a joint tenancy. Finally, a married couple can own the property as a tenants in common. The key difference between a tenancy in common and the previous two ways to hold property with a spouse is that when a spouse dies, that spouse’s portion of the property does not belong to the surviving spouse. The deceased spouse can leave the property to someone else in his or her will.

In Arizona, when a married couple divorces, the divorce decree determines what happens to the property. The decree will usually say who keeps the real estate property. A divorce decree can be recorded and is effective to transfer title. Therefore, if a decree assigns property to one spouse and the two former spouses never change the deed, the property still belongs to the spouse listed in the decree. Still, the former spouses should execute a deed in order to avoid a mess when one of them dies.

Now, the interesting question is what happens to jointly-held property that the divorce decree omits? In Arizona, property held in joint tenancy or as community property that the divorce decree omits becomes by operation of law (i.e., "automatically") property held by tenants in common. Therefore, if a couple owning property in joint tenancy or as community property gets a divorce and the decree omits the property, one former spouse does not own the other spouse’s half of the property if the other spouse dies. The deceased spouse’s portion of the property will pass according to the deceased spouse’s will or, if the deceased spouse has no will, to his or her heirs at law (surviving spouse; if no surviving spouse, to surviving children and/or grandchildren, great-grandchildren, etc.; if no children, etc., to surviving parents; etc.).

If you get a divorce, make sure the terms of your decree divide all real estate. The State of Arizona has seen some messy situations caused by the failure to divide real property in a divorce decree.

 

 

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