Wednesday, 14 October 2015 12:00

When Parents Want to Change a Child's Name

Sometimes parents who were never married to each other want to change their child’s last name.  The result is often a hyphenated name.  The legal standard for changing a child’s last name when the parents do not agree to change it rests on a determination of the child’s best interest.  In Arizona, there is very little legal authority to guide us on a disputed child name change.

The Arizona Court of Appeals recently issued a memorandum decision regarding a disputed child name change.  The decision is not published, which means that parents and attorneys cannot use it as legal authority in the future, but it contains a useful discussion on two aspects of the legalities of a disputed child name change.

The first aspect of the name change issue is the finality of a decision on a child’s name change, or whether the parties may bring more than one petition to change their child’s name.  The father in this case had twice brought unsuccessful petitions to change his child’s last name, and both times the mother opposed it.  Both times the court denied the petition for name change.  The father later brought another petition to change the child’s name.  This time the court granted the petition.  On appeal, the mother argued that the previous petitions for a change of name were denied and that the court could not revisit the issue.  The Court of Appeals ruled, "We disagree with Mother that once the court denied Father’s name-change request, it could not revisit the issue, as this is a decision controlled by the child’s best interests, which may change over time."

The second aspect of the name change issue is the factors that the court must examine in determining a child’s best interest regarding a name change.  The factors are 1) the child’s preference; 2) the effect of the proposed change on the preservation and development of the child’s relationship with each parent; 3) how long the child has had his or her current name; 4) the difficulties that the child may experience in having the current or proposed name; and 5) the motives of the parents and the possibility that a name change will cause insecurity or a lack of identity.  The Court of Appeals ruled that the trial court had properly considered these factors and affirmed the ruling.

You can review the Court of Appeals decision here: https://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2015/CV14-0328%20FC.pdf

If you have questions about a child’s name change or any other family law matter, please call Thomas A. Morton, PLLC for a consultation.

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Unfortunately, many people lie to the court during legal decision making (custody) and parenting time cases.  Often, the person who is acting badly is the person lying to the court about the other parent.  Too often, these people get away with it because the judge does not know who to believe.

One American soldier just solved this problem with his GoPro camera.  His wife is accusing him of domestic violence while she is committing domestic violence against him.  He hid his camera on his body and captured her not only committing domestic violence against him, but threatening to falsely accuse him of committing domestic violence against her.  The story is here: http://www.wtsp.com/story/news/2015/09/20/soldier-uses-gopro-to-prove-wifes-domestic-abuse/72545676/

People often ask if it is legal to record telephone conversations and face-to-face meetings.  People often tell me that they want to record the other party because the other party lies about what happens or what people say.  In Arizona, it is legal to record a conversation of which you are a part.  Therefore, you can legally record your phone conversations and encounters that you have with other people.  You may not legally record the conversations of other people without their permission.

The story about the soldier who solved the he-said-she-said problem shows how to effectively use recording devices when the other parent lies to the court.

Published in Blog
Friday, 18 September 2015 09:50

Grounds for Divorce in Arizona

The only grounds for divorce in Arizona for most marriages is that the marriage is irretrievably broken, and there is no reasonable prospect of reconciliation.  This essentially means that if one spouse wants a divorce, that spouse will get a divorce.  Spouses wishing to save their marriage have disputed that their marriage is irretrievably broken and that there is no reasonable prospect of reconciliation, but, if either spouse testifies that the grounds for an Arizona divorce exist, there is no judge who will not make the requisite finding.  The judge is not going to force someone to stay married who does not want to stay married.  It is always sufficient for one spouse to testify that the marriage is irretrievably broken and that there is no reasonable prospect of reconciliation.

None of the classic grounds for divorce, like adultery, cruelty, abandonment, and domestic violence, are grounds for divorce in Arizona.  Of course, any of the classic grounds for divorce may cause the marriage to be irretrievably broken with no reasonable prospect of reconciliation.   Because Arizona is a no-fault divorce state, the court will make no findings regarding fault.  The court will divide property and debt, make support orders, and make orders regarding any children without regard to marital misconduct.  Of course, issues like domestic violence or substance abuse may be relevant regarding the children’s best interest.

However, some people get a unique marriage license which says that the married couple has a covenant marriage.  This makes it a little more difficult to get a divorce in Arizona.  A covenant marriage requires a notarized statement that the couple has been counseled by clergy or a marriage counselor, including counseling regarding the limited options for divorce.  The grounds for the divorce of a covenant marriage are adultery; a felony conviction with a sentence of death or imprisonment; abandonment for one year (or expected to last one year) with a refusal to return; physical or sexual abuse of a spouse, child, or relative living in the home, or domestic violence as defined in the criminal portions of the Arizona Revised Statutes (it is a more broad definition than physical or sexual abuse); physical separation of two years (or expected to last two years); one year of separation following a decree of legal separation; habitual abuse of drugs or alcohol; or that both spouses agree to divorce.

Arizona is only one of three states that have covenant marriage.  The other two are Louisiana and Arkansas.

If you have questions regarding divorce or any area of family law, please contact Thomas Morton for a consultation.

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Social media such as Facebook, Twitter, Instagram, and Reddit can be a wealth of information for attorneys in family law and other areas of law because people post so much of their lives online and often have online tantrums.  Something as seemingly innocent as a check-in on Foursquare can turn into incriminating evidence.  Your social media activity can be a trail of evidence that the other party can use against you in family court, particularly when legal decision-making (custody) and parenting time are issues.  It can also hurt you in other types of cases, such as bankruptcy or collection matters.

Information that people post on social media can be evidence of state of mind, intent, communication, times and places of activities, employment, actions, contempt for the other parent, child alienation, and many other issues.  In one case, my client found on the other parent’s Facebook page a picture with a caption bragging about hiding assets during the divorce; pictures and check-ins at various bars, restaurants, sporting events, and entertainment venues while the other parent claimed to have no money; disparaging remarks about the client; pictures of the other parent’s new motorcycle which he had denied owning; and pictures of the other parent with various items of jewelry which he denied owning.  In several collections cases, I have found the opposing party’s place of employment on Facebook.  I have often found evidence on social media that directly contradicts what opposing parties claim in court.

I usually receive this sort of evidence because someone saw it and printed it.  However, social media is now open to the discovery process in many states (but not Arizona - yet).  This means that upon the request of the other party you must print your social media, such as your Facebook time line, and give it to the other party.

Here are some guidelines to help you prevent someone from using your social media against you in court.

1. Do not use social media. This is the only way to be certain that no one will use your social media against you.  If you must use social media, use the other guidelines.

2.  Do not post anything that you do not want a judge to see.  If you don’t want the judge to see it, don’t post it.

3.  Be honest.  If you do not lie in your legal proceeding, you will not have to worry about getting caught because of your social media use.  If you do not lie on social media, for example trying to impress someone by exaggerating your affluence, you will not need to worry about it coming back to haunt you in court.

4.  Set your accounts to private.  This is a good idea regardless of legal proceedings, but it also prevents people from trolling your social media looking for incriminating evidence.

5.  Do not have the opposing party or their friends and family on your friend or contact list.  These are the most likely people to look for something incriminating on your page.  This seems obvious, but this is usually how the other party gets the information.

6.  Do not post pictures or write about doing things that you should not do, such as illegal drug use, alcohol abuse, gang activity (I had one opposing party who posted multiple pictures of himself and his gang flashing gang signs), criminal activity, endangering your children, and generally showing bad judgment.  Do not make a public record of things that you should not do in the first place.

7.  Do not disparage the opposing party, the opposing party’s family, the opposing party’s friends, any former spouse, any former girlfriend or boyfriend, any parent of any of your children, or anyone else that you know. This includes posting threats.  People have actually done this and hurt their family law case.

8.  Be nice. A large part of a family law case is presenting yourself as reasonable. Do not post evidence in public that you are not reasonable.  Being mean online may or may not hurt you in court, but it certainly will not help you.

9.  Do not post trashy things. This includes profanity-laced status updates about various frustrations, filthy jokes, explicit pictures, anything racist, and the like.  Again, this may or may not hurt you, but it certainly will not help you.

10.  Keep most private details of your life private. Posts about how much you love your children, or how much fun you had with your children during a particular activity are fine. Posts about every detail of your life can lead you to post something that you later wish you did not post.

11.  Do not post details about your case.

12.  Free speech is not the issue.  Your focus should be on winning your case.  This includes not saying or posting whatever you want to say or post.  You may have every right to say something, but it will still hurt your case.  One litigant had remarried and his current spouse posted foul, horrible things about the opposing party several times every day. The litigant took the position that his wife is entitled to free speech and can post whatever she wants. He lost his case.  Being right is not worth losing your children.

Published in Blog
Thursday, 06 August 2015 16:57

How to Recover Uninsured Medical Expenses

One issue with which parents often struggle is how to give notice to the other parent of unreimbursed medical expenses for the parties’ children.  The Arizona Court of Appeals recently addressed this issue in an unpublished decision.

The Arizona Child Support Guidelines require the parent seeking reimbursement from the other parent to give notice to the other parent within 180 days of incurring the expense.  The notice need not be in writing and need not include a receipt, unless the other parent asks for it.

The parties in the appellate case operated under these rules until the court entered a modification order requiring the parent seeking reimbursement from the other parent to give notice in writing within 30 days of treatment and to provide a receipt or invoice.

The appellate court applied the standard in the guidelines to the medical claims that the mother incurred prior to the modification order and applied the modified standard to all claims incurred after the modification order.  Also, the court allowed most of the mother’s claims, even the claims for which she could supply no written demand and for which the father claimed that the mother had made no verbal demand, because the court found the mother to be more credible.

The bottom line is that the Guidelines enact one standard for demanding reimbursement for out-of-pocket medical costs, but the court may make its own procedure in any given case.  Therefore, parents should read their court orders and make their demands accordingly.  Furthermore, demands should always be in writing and include a receipt, even if the court’s order does not require it.  As I often tell my clients, the other party can lie about what you said or did not say, but they cannot lie about what you wrote.  Parents should also include the receipt in order to take away from the other parent the argument that the demand did not include a receipt. 

The court also made a few other holdings important for parents regarding uninsured medical expenses.   First, the court ruled that the mother’s inability to pay a medical bill did not change the father’s obligation to pay his portion.  The court ordered the father to pay his portion of the expense directly to the health care provider.  Also, the father’s attendance at some of his children’s doctor’s appointments was not sufficient notice of the medical expense.  The mother still had to give notice of her costs to the father.

Parents often give defective notice or present insufficient evidence to the court.  An experienced family law attorney’s advice and/or help will often make the difference between failure to recover unreimbursed medical expenses and success.  If you have to recover expenses from the other parent, Thomas A. Morton can help you.

Published in Blog
Thursday, 30 July 2015 16:13

Grandparents Visitation Rights in Arizona

Arizona law provides for grandparents (and other people who are not parents) to get a court order for visitation with a child.  When grandparents seek visitation with a child, they usually do so because their child (the parent of the grandchild) has passed away or has very limited time with the child, such as in the case of a parent who frequently deploys with the military, who lives across the country, or who has abandoned the child.

The best route is usually for the grandparents and parents to talk to each other and come to an agreement for the grandparents to visit the child.  My first advice to either parent or the grandparents is to talk to the other parties and work something out.  This often requires the adults to act like adults and set aside the fact that they do not particularly like the other parties or that they are mad at them.  Unless the grandparents pose a danger to the child, continued contact with the grandparents is usually best for the child.

One practical consideration for the grandparents is the parents’ reaction to their petition.  The court will probably grant a visitation order, but the court will not be overly generous with the time it orders for the grandparents.  Therefore, if the parents are voluntarily allowing some visitation, the grandparents may be better off not seeking an order from the court because it will probably not result in more time for the grandparents, could well result in less time for the grandparents (the likelihood of the parents giving the grandparents more time than the court ordered is slim), and will put more strain on the relationship between the parents and grandparents.

However, sometimes the only alternative is to seek the court’s intervention.  The grandparents must prove that visitation is in the child’s best interest and one of the following: one of the legal parents is deceased or has been missing for at least three months; the child was born out of wedlock and the child’s legal parents are not married to each other at the time the grandparents file their petition; the child’s parents have been divorced for at least three months; or, for in loco parentis visitation, the parents’ divorce or legal separation action is pending when the grandparents filed their petition for visitation.  If the grandparents successfully prove these factors, the court may grant them visitation.

The grandparents’ petition must be under oath and contain detailed facts supporting their position.  In making its decision, the court must giving special weight to the parents’ opinion of what serves the child’s best interest, and must consider all relevant factors, including: the historical relationship between the grandparents and the child; the grandparents’ motivation in seeking visitation; the motivation of the person objecting to visitation; the quantity of visitation that the grandparents seek and the potential adverse impact that it will have on the child’s customary activities; and, if one of the child’s parents are deceased, the benefit to the child of maintaining an extended family relationship.  If logistically possible, the grandparents’ visitation time must be during the parenting time awarded to the parent through whom the grandparents claim a right of visitation.

If you have questions about grandparent visitation in Arizona, please contact Thomas A. Morton.

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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.

 

 

 

 

 

 

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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
Thursday, 02 October 2014 18:35

Please Vote for Thomas A. Morton, PLLC.

I have applied for a grant from Chase Bank.  I need 250 votes by October 17, 2014 for consideration.  I would greatly appreciate your vote.  You can vote for me here: https://www.missionmainstreetgrants.com/business/detail/20145.

 

Hopefully, I can get back to my regular weekly blog with advice about family law, divorce, and bankruptcy in Phoenix, Arizona next week.  UNtil then, take care.

 

Thank you!

Published in Blog
Thursday, 28 August 2014 15:56

Arizona Child Support Enforcement Basics

Child support is an important obligation.  Arizona courts make child support orders in order to give children a stable standard of living and to meet all of the child’s needs.  Therefore, Arizona courts take child support seriously.

An experienced family law lawyer has several ways to cause the courts to enforce a child support order.  The Division of Child Support Enforcement Child Support Evader program will only help when a parent owes more than $5,000.00 in child support, has failed to pay child support for six months, and has a child support arrest warrant.  However, parents have a variety of other ways to enforce a child support order.

Income Withholding.  The court may issue an income withholding order directing a parent’s employer to withhold a portion of his or her income and pay it to the Support Payment Clearinghouse.  Courts may issue income withholding orders for current child support amounts or past due amounts or both.  People commonly call this a garnishment.  The income withholding order used to be called an order of assignment.

Credit Reports. The Division of Child Support Enforcement reports to credit reporting bureaus about child support payments and when payments are more than 180 days overdue, this will appear on the credit report as a collection account.

State Tax Refund.  The state may withhold a state income tax return when a parent owes more than $50.00 in past due child support.

Seizure of Assets. When the court has issued a judgment for past due child support a parent may collect on the judgment by seizing the other parent’s assets through various procedures such as a writ of garnishment (for example, on a bank account), or a writ of execution (for example, on a non-exempt vehicle such as a boat).

Judgement Lien on Real Estate.  When a parent records a judgment for past due child support with the county recorder, the judgment becomes a lien on all real estate the other parents owns in the county.

License Suspension.  The family court may be able to order the Motor Vehicle Division to suspend a parent’s driver’s license.  A court may also enter an order to suspend other licenses, such as professional licenses.

Lottery Winnings.  The state may seize a parent’s lottery winnings over the amount of $600.00.

Incarceration.  The court can find a parent who has failed to pay child support in contempt of court and order that parent to go to jail until the parent "purges" the contempt (usually by paying a large amount of the child support arrears and/or making timely payments for a set number of months) or report to jail by a certain date if he or she does not purge the contempt.  In my experience, this is the most effective way of getting payment when the other parent has steadfastly failed to pay child support.  Parents who swear that they have no money tend to miraculously find the money to purge the contempt.  One common question is whether incarceration prevents the other parent from paying child support (the parent can’t work if he is in jail).  The answer is no.  The other parent can be in a program known as work release and be out of jail for up to 12 hours on work days so he or she can work to pay child support. 

Parents can also seek the help of the Attorney General’s office in enforcing child support, but this will cause your case to enter a system that is horribly inefficient and very slow to act.  The state’s involvement will trigger a federal requirement that all child support matters in your case appear before a judicial officer that is different than the judicial officer who will continue to hear all other matters in your case.  This causes multiple delays, often disparate rulings, and twice as many trips to court.  Also, my experience is that the Attorney General’s office is very slow to act.

Thomas A. Morton Has many years’ experience in child support enforcement and is willing and able to help you with your enforcement case. He serves clients in the Phoenix, Mesa, Glendale, and Peoria communities.

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