Friday, 25 January 2019 07:52

Same Sex Divorce

I have seen and heard more questions about same sex divorce recently.  Same sex divorce is mostly just like any other divorce.  For example, the division of property and debt is the same, any award of spousal maintenance is the same, and calculation of child support is the same.  The fact that the parties are the same sex makes no difference on these issues.
The only issues that have a different analysis for same sex couples are legal decision making (“custody”) of children and parenting time (“visitation”).  Because same sex marriage is so new, the law on these issues is still developing.  However, the reason that these issues are different is because only one spouse in a same sex marriage can be the biological parent of a child, and for several years only one spouse in a same sex marriage could be the adoptive parent of a child.  Therefore, the issue is whether the non-parent spouse is a legal parent of the child or is entitled to non-parent visitation.  There are cases in which one same sex spouse adopts children, but the other spouse is not an adoptive parent.  Courts have so far decided some of these issues in same sex divorces under the statute permitting courts to order visitation to non-parents (A. R. S. § 25-409).  In some cases, the Courts have determined that the presumption that the spouse of a woman who gives birth to a child is the other parent applies to same sex spouses pursuant to A. R. S. § 25-814.
In McLaughlin v. Jones, the a same sex couple wed and then one of the spouses became pregnant by artificial insemination.  The couple then entered into a written and signed agreement to jointly raise the child.  The Arizona Court of Appeals held that a same sex spouse gets the same presumption of parenthood when a female spouse gives birth to a child conceived during the marriage.  However, the other spouse may rebut the presumption of parenthood.  However, in this case the biological mother could not rebut the presumption because she had entered into a written and signed agreement to the contrary.  Therefore, the non-parent same sex spouse gets the presumption, but it should usually be easy to rebut the presumption, in which case visitation would be decided under the statute addressing non-parent visitation.
In Sheets v. Mead, a same sex, unmarried couple were foster parents to a child, but only one of the members of the couple eventually adopted the child because at the time same sex couples could not both adopt a child.  After the adoption, the couple eventually separated and the non-parent filed a petition for non-parent visitation.  The Arizona Court of Appeals held that a child adopted before the petition files a petition for non-parent visitation is not eligible for non-parent visitation under the statute.  The court based its ruling on extensive jurisdictional analysis and statutory construction.  The result may have been different had the petitioner filed her petition before the adoption.
In Goodman v. Forsen, a fit mother’s former live-in girlfriend sought non-parent visitation.  The fact that this was a same sex couple made no difference.  The Court of Appeals held that the burden of proof was not on the mother, but on the person seeking visitation to prove that the fit parent’s decision to not allow visitation would substantially impair the child’s best interests.  This case had significant implications for non-parent visitation cases (no mater the sex of the parties) because it made it much more difficult to attain non-parent visitation.
In Doty-Perez v. Doty-Perez, a same sex spouse adopted four children subsequent to her marriage.  At the time, Arizona law did not provide for a same sex couple to adopt children, so her spouse was not an adoptive parent.  The couple intended to raise the children together, but the marriage eroded after the adoption and the couple divorced.  The non-parent spouse asked the trial court to declare her a legal parent.  The trial court denied that request because no presumption of legal parenthood exists in this situation.  Arizona law clearly states that the parental relationship exists between the adoptive parent and the child, not the adoptive parent’s spouse.  Obergfell (the United States Supreme Court case requiring the recognition of same sex marriage) does not require states to retroactively change adoptions.  The non-parent spouse then petitioned for non-parent visitation.  The Court of Appeals eventually held that Arizona’s non-parent visitation statute (A. R. S. § 25-409) does not provide for non-parent visitation for a child adopted by one spouse and not the other spouse (the statute specifically provides for non-parent visitation when one of the legal parents is deceased, the child’s legal parents are not parried to each other when the petition is filed, or a petition for divorce or legal separation of the parents is pending at the time the petition is filed).
In Turner v. Steiner, a different division of the Arizona Court of Appeals disagreed with the McLaughlin court.  In Turner, one spouse in a same sex couple became pregnant by artificial insemination.  The couple did not have a written agreement to co-parent the child, but their conduct appeared to support such an agreement.  The trial court held that the non-parent spouse was presumed to be a legal parent and the parent spouse could not rebut the presumption because of the implied agreement to co-parent the child.  The appellate court reversed, reasoning that Obergfell requires states to treat same-sex spouses the same as opposite-sex spouses, and not allowing a same-sex spouse to rebut the presumption because of an agreement (express or implied) when an opposite-sex parent would simply have to disprove biological parentage with a DNA test would be inconsistent with Obergfell.
This area of law is rapidly changing and further appellate decisions and possible changes in Arizona’s statutes will likely provide further developments during the next few years.
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The Arizona Court of Appeals recently ruled that trial courts do not have the authority to choose a school for a child.  Courts may choose the parent who may make the decision, and courts may take into account in which school the parent would choose in making that decision, but the courts may not impose their own decision.  I wrote about that decision here:
Now the Court of Appeals has further limited trial courts’ authority to impose decisions on parents, recently ruling that the Family Court may not choose counselors for the children, prohibit discussing certain things with the children, and make other parenting decisions for the children.  The Court of Appeals again ruled that the Family Court may not make parenting decisions, but can only decide which parent will make them.
The parents married in 2004 and had three children. The parents divorced in 2010 with the parties having joint legal custody of the children, with Father having final legal decision-making authority for two children, including “L,” and Mother having final legal decision-making authority for the other child. The parties had equal parenting time.
In February 2013, Mother sent L to school wearing a skirt and carrying a book, Princess Boy, for his teacher to read to the class. Mother did not inform Father until after L arrived at school. Mother claimed that L had long preferred female-oriented items and would wear girls’ clothing at home. Father claimed to have no previous knowledge of this preference.  After L wore the skirt to school, Father made arrangements for L to begin therapy with L’s counselor.  Father claimed that Mother was pushing L to identify as female even though L’s counselor did not diagnose L with gender dysphoria.
The trial court ordered Father to provide L with therapy from specified providers, and that both parents not make certain parenting decisions, including discussion of certain topics with L. The Court of Appeals vacated those orders because no statutory authority enabled the court to direct the parenting decisions regarding therapy, or to impose parenting time limits that infringe the parents’ Constitutional rights to parent and engage in free speech.
The Court of Appeals made the following holdings: 
1.  The statute allowing the court to limit a parent’s authority does not allow the trial court to impose guidelines on  legal decision-making by appointing a specific therapist to treat child;
2.  The statute allowing the court to seek advice of professional personnel does not allow the trial court to appoint the child's longstanding, privately retained counselor to provide therapy or to grant judicial immunity to the counselor;
3.  The statute allowing the court to seek the advice of professional personnel does not allow the trial court to require an expert in gender issues to provide input to the parents, the child's therapist, and the court; 
4.  Father did not unreasonably oppose appointments of the therapist and expert; and
5.  The statute allowing the court to restrict parenting time rights does not allow the court to prohibit parents from speaking with a child about gender identification and or to provide the child with female-oriented items.
You can read the Court of Appeals decision here:
This decision is part of a larger trend of the Arizona Court of Appeals limiting the Family Court’s authority to impose parenting decisions on parents and returning that authority to individual parents consistent with Arizona’s revised domestic relations statutes enacted in 2013.  Right or wrong, parents have the right to make their own decisions without a judge imposing decisions on them.  In 2013, family law lawyers all focused on the changes in the new statutes that appeared to enact a strong preference for joint legal decision making and equal time.  We were correct about that, but we all overlooked the change in the wording of the statute for legal decision making that ultimately resulted in a limitation on the Family Court’s authority to make decisions for parents.
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Ever since I have practiced law, a former spouse who paid spousal maintenance could deduct the amount paid from his or her taxable income, and the recipient of spousal maintenance had to declare the payments as income and pay income taxes on them.  This is a useful negotiating tool in settling spousal maintenance cases.
Starting in 2019, the IRS will no longer consider alimony payments as tax deductible for the party making the payments or as taxable income to the party receiving the payments.  This is a major change and it was a part of the Tax Cuts and Jobs Act passed by Congress and signed into law by President Trump earlier this year.  This is very favorable to the recipients of spousal maintenance.
This new change also makes the law more uniform.  Before 2019, spousal maintenance payments will be tax deductible to the party making the payments and taxable income to the party receiving them, but child support payments are and have always been just payments.  They are not deductible for the party making the payments and are not taxed as income to the party receiving them.  The new law now treats child support payments and spousal maintenance (alimony) payments the same.
An important part of the new law is that it only applies to court orders made beginning in 2019.  If an Arizona family court orders a party to make spousal maintenance payments before 2019, the payments will remain tax deductible for the party making the payments and taxable income for the party receiving them.  For example, if a family court judge ordered a party to pay spousal maintenance for a period of 20 years in the year 2018 (or any year before 2018), the spousal maintenance payments will always be deductible for the party making the payments and taxable income for the party receiving them, even after 2018.  If a family court judge makes the same order in 2019 (or any year after 2019), the payments are not deductible for the party making them and are not taxable income to the other party.
Does this make sense?  I’m not sure.  On one hand, it makes sense to have uniformity and simplicity in the law.  Taxing spousal maintenance payments and child support payments in the same way helps achieve that end.   It also makes sense to not tax support payments to the recipient, thereby increasing the need for support.  Courts base spousal maintenance payments on need.  On the other hand, spousal maintenance payments really are income to the party receiving them and it makes sense that if we are going to tax income we should tax it to the party ultimately receiving it.  It doesn’t seem fair to force someone to support his or her former spouse and tax those payments to that person on top of it.  No matter who gets taxed, the government wins and an individual loses.
How will this change divorce in Arizona?  One way seems clear.  Family court judges consider the fact that the federal government taxes spousal maintenance payments to the recipient and take that into consideration in making their rulings.  Starting in 2019, they will no longer make that consideration.  Therefore, spousal maintenance awards may go down slightly, but the recipients of those awards will not have to pay taxes on them.  Other changes are more speculative.  Arizona law requires the court when calculating child support to deduct spousal maintenance payments from one party’s income and attribute them as income to the party receiving them.  Will Arizona child support law change to be consistent with the new federal income taxation law?  We don’t know.  With our federal system of government, Arizona’s child support laws do not have to treat spousal maintenance payments the same way that the federal government’s income tax laws treat them.  We can only wait to find out.
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I frequently see questions in online forums regarding in which country a couple must seek a divorce.  The answer is you seek a divorce in the country in which you live.  In Arizona, the only requirement to get a divorce is that you lived in Arizona for the 90 days immediately preceding the day you file your petition for dissolution of marriage.  It does not matter whether you got married in another country, like Mexico, or you got married in Arizona, or you got married in another state in the United States.  In Arizona, you can get a divorce no matter where you were married.

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Domestic violence is a factor in divorce with children and paternity cases in Arizona.  It can have a big impact on legal decision making (custody) and parenting time orders.  Significant domestic violence can be the most important factor in the Family Court’s determination.
If the court determines that there has been significant domestic violence between the parents or if there has been a significant history of domestic violence, it will not award joint legal decision making.  The Family Court judge must consider any domestic violence as contrary to the children’s best interest and must consider the safety and well-being of the children and victim of domestic violence of primary importance.  The court will consider a party’s history of harming or threatening to harm another person.  To determine whether a parent committed domestic violence, the court must consider all factors, including but not limited to findings from other courts, police reports, medical reports, Department of Child Safety records, domestic violence shelter records, school records, and witness testimony.
If the judge determines that a parent has committed an act of domestic violence against the other parent, the court must presume that joint legal decision making or sole legal decision making with the perpetrator of domestic violence is not in the children’s best interest.  The presumption does not apply if both parents committed an act of domestic violence.  A parent commits an act of domestic violence if he or she causes or attempts sexual assault or serious physical injury; causes another person to reasonably believe that serious physical injury to any person is imminent; or engages in behavior for which a court may issue a protective order for the other parent.  The court will consider the following factors to determine whether a parent rebutted the presumption against legal decision making: whether that parent demonstrated that sole or joint legal decision making in that parent or substantially equal parenting time is in the children’s best interest; whether that parent completed a batterer’s prevention program; whether that parent completed substance abuse counseling if the court determined that substance abuse counseling is appropriate; whether that parent completed a parenting class if the court determined that it is appropriate; whether a court has issued a protective order after a hearing if that parent is on probation, parole, or community supervision; and whether that parent has committed further acts of domestic violence.
If the court determines that a parent committed an act of domestic violence, that parent must prove that parenting time will not endanger the child or harm the child’s emotional development.  If the parent meets this burden, the court must place conditions on parenting time to protect the child and the other parent from harm.  The court may place the following conditions on parenting time: order that exchanges of the children take place in a protected place such as a police station; order that parenting time be supervised by an agency or an individual at the perpetrator’s expense; order the parent who committed domestic violence to complete an intervention program; order the parent who committed domestic violence to abstain from and not possess alcohol or drugs during and 24 hours before parenting time; prohibit overnight parenting time; require a bond from the parent who committed domestic violence for the child’s safe return; order that the address of the children and other parent be confidential; and impose any other condition that the judge deems necessary to protect the child, other parent, or any other household or family member.
The court may not order joint counseling between a victim and perpetrator of domestic violence and may request or order services from the Department of Child Safety.
Therefore, domestic violence can play a major role in a court’s determination of legal decision making and parenting time.  If you have domestic violence as an issue in your family law case, I can help you.
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Arizona Family Courts have for many years resolved conflicts between parents who cannot agree on which school their children attend or which medical treatment their children receive.  Last month, the Arizona Court of Appeals put an end to the Family Court making legal decisions on behalf of children.
In Nicaise v. Sundaram, the father believed that the child was developmentally delayed and sought various treatments for the child.  The father also wanted to place the child in a public school with an IEP (Individualized Education Program).  Mother disagreed, opposed any treatment, and wanted to home school the child.  The mother and father had an extremely volatile relationship and were unable to agree on any of these issues.  The Family Court in Maricopa County held a trial and ruled that the child would receive various treatments and attend a public school with an IEP in place.
The Arizona Court of Appeals ruled that the trial court exceeded its jurisdiction and authority by making the parents’ decisions on treatment and education for them.  The statute regarding legal decision making (custody) authorizes the court to designate the parent who can make this sort of legal decision for a child, but does not give the court the authority to actually make the legal decision for the child.  “We find no statutory grant of authority for such decisions.  If the court determines that the parents cannot agree, the court must choose which parent shall decide. But the court cannot make the decision itself.”  The appellate court went on to say that the trial court may consider each parent’s proposed decisions in making its determination of which parent shall make the decision.
In reaching its decision, the Court of Appeals specifically departed from its earlier decision in Jordan v. Rea to the extent that the Jordan court ruled that judges may make substantive legal decisions for parents who are unable to agree.  The Arizona Court of Appeals decided Jordan in 2009, prior to when Arizona’s statutes regarding legal decision making changed in 2013.  
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People always want to recover their attorney’s fees from the other side in a family law case.  Most judges are hesitant to make an award of attorney’s fees, but they do award fees sometimes.
The statute for attorney’s fees in Family Court in Arizona is A.R.S. § 25-324.  The statute provides two bases for a Family Court judge to award attorney’s fees and the judge must consider both of them.  The first basis is relative ability to pay.  If one party has a high income and a lot of assets, and the other party has a low income and few assets, then that is a basis to award attorney’s fees to the low-income party.  The other basis is if a party has been unreasonable in the positions or actions they take during the course of the proceeding.  Examples include violating court orders, taking positions contrary to law, taking positions clearly not in the children’s best interest, filing frivolous motions, and wasting the court’s time.
The amount of fees that the judge awards varies.  Sometimes it’s just a fraction of the fees spent and sometimes it’s all of the fees spent.  The amount awarded is in the judge’s discretion.
Finally, getting an award of fees is one thing, but actually collecting them is another.  The other party does not always pay the judgment right away or at all.  If this happens, the party with the judgment for fees has several options, including garnishing wages or bank accounts, or filing a contempt and enforcement petition, depending on the language of the judgment for fees.
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Every branch of the United States Armed Forces has a general order regarding family support.  Each order applies to service members until the civilian court enters an order for family support.  For example, if a service member separates from his spouse, and files for divorce, his branch’s family support order says what he must do or pay to support his spouse until the civilian court enters an order granting or denying spousal maintenance and determining child support if the couple has children.
The orders vary from service to service, but they are generally based on the service member’s Basic Allowance for Housing (“BAH”)and the number of dependants the service member must support.  For example, when I was on active duty, the Marine Corps general order for family support was, in a nutshell, that the service member must pay a fraction of the BAH to the spouse, and the fraction of the BAH depended on how many children the service member had who were living primarily with the spouse.
If a service member does not support his or her dependants, the spouse may contact the service member’s command and the command must enforce the general order.  The local legal assistance office can help service members and their spouses in determining what the service member must do, contacting the service member’s command, and helping with filing in the civilian courts.  In my experience, the military general orders generally require larger payments to the dependant spouse than the civilian courts.
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Many people ask when they can stop worrying about their ex-spouse collecting child support.  The short answer: never.  Many other people ask if it has been too long to collect unpaid child support.  Arizona has no statute of limitation on child support that the court ordered a parent to pay.  Arizona also has no statute of limitation on a judgment for unpaid child support.
If a judge entered an order that a parent pay child support, there is no time limit on when the other parent may collect any unpaid child support.  Also, a court cannot retroactively change child support.  Therefore, if a parent loses his or her job and stops paying child support, that parent cannot get out of the child support debt by later showing that his or her income changed.  In order to get relief for a change in financial circumstances, that parent must file a petition to modify child support right away.
If a judge enters a judgment for unpaid child support, whether it is child support that a parent did not pay after the judge entered a child support order or whether it is for child support prior to a court order, that judgment never expires.  Most judgments in Arizona expire after five years unless the judgment creditor renews the judgment, which requires the filing of an affidavit of renewal of judgment.  However, the affidavit is not necessary to renew a child support judgment because child support judgments do not expire.
The only way that the passage of time can help a parent who did not pay child support or hurt a parent who did not collect child support is when there is no order for child support.  When a parent seeks a child support order, the court may go back up to three years and enter a judgment for past child support.  Therefore, if a parent never seeks child support, the other parent can only escape all liability for child support when the child turns 21years old.  There are a few narrow exceptions.  Another example would be if the parents separated when the child was six years old and the custodial parent did not seek child support until the child was 12 years old.  The court in that instance would only be able to enter judgment for past child support back to when the child was nine years old. 
However, the parent who is to receive child support should not take too much confidence from the fact that there is no statute of limitation for child support.  If a parent does not collect for too long, the arrears and interest will eventually reach an amount that will be impossible to completely collect because of sheer volume.  For example, if a parent does not make court-ordered child support payments and owes $300,000.00, is 50 years old, and has never earned more than $60,000.00 in a year, the chances are that the other parent will never collect that $300,000.00.
Therefore, the lesson is that a parent whom the court orders to pay child support should pay child support.  Death is very nearly the only way to get out of it, and even if that parent reaches the point at which it is impossible to collect all of the arrears, the arrears will likely dog that parent until death.  If that parent’s financial circumstances change making it more difficult to pay child support, then that parent should file to modify child support instead of assuming that the court will just change it later.  Also, the other consequences of not paying child support can be much more severe.  As for the parent who receives child support, the lesson is to collect unpaid child support without waiting too long, to not give up just because it has been a long time since the last payment, and to establish child support before waiting several years.
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For many years, Arizona courts would enter orders granting visitation to grandparents if the courts found that one of three conditions existed (parents unwed, parents divorced, or a parent deceased) and that it was in the child’s best interest.  However, the statute for grandparent visitation changed in 2013 and a recent Arizona Court of Appeals decision interpreting the statutory change has made it more difficult for grandparents to get a court order for visitation with grandchildren over a parent’s objection.
The amended statute, A. R. S. § 25-409, requires the courts to give “special weight” to a parent’s decision to oppose visitation between a child and a nonparent.  The Arizona Court of Appeals in Goodman v. Forsen, 239 Ariz. 110, 366 P.3d 587 (App. 2016), held that a parent opposing visitation does not bear the burden of proof, and that “special weight” means the party seeking visitation must prove that a fit parent’s decision to deny visitation would substantially impair the child’s best interest.
In Goodman, the trial court awarded visitation to the mother’s ex-girlfriend over the mother’s objection because it found the mother's testimony regarding her reasons for opposing visitation was not credible.  The appellate court ruled that the mother’s credibility was not the proper focus of the inquiry, and by making it the focus of the inquiry the trial court had improperly placed the burden of proof on the mother.  The Court of Appeals reversed the trial court’s decision and remanded the case to the trial court to determine whether the fit mother’s decision would substantially impair the child’s best interests.
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