Should I Get a Divorce?

Everyone experiences difficulties at various points in life. These concerns can be numerous and minor, few and severe, or any combination between. Families endure financial hardship, healthcare problems, emotional and psychological differences, domestic disputes, births, deaths, and sometimes legal trouble.  For married couples, these and other issues may lead spouses to consider divorce.

The question of whether to seek a divorce in Maricopa County can trouble a person for years because the process and consequences of legally dissolving a marriage are complex and frequently change.  Some people may not know anyone who has divorced, or they may know people whose hardships only increased after beginning the process.  Others may have outdated ideas about dissolution based on rules that no longer apply. Still more may understand the process but are not able to weigh the consequences on their own.  Here are some tips and observations to enlighten your decision.

What is a dissolution?

Which Way To Go?In Arizona, ‘dissolution’ describes the process of legally ending a marriage (the same process that most people call ‘divorce’). Dissolution differs from annulment primarily in the court’s treatment of marital property because dissolution dissolves a marriage while an annulment treats the marriage as if it never existed because of some technical flaw in its formation.  Parties whom the court acknowledges were married are typically entitled to a more comprehensive analysis and distribution of community assets than parties whose marriage should never have been granted (because, for example, one of the parties was under 18 and lacked legal capacity to marry without parental permission).

How do I get started?

Dissolution begins when one of the spouses files a Petition for Dissolution with the appropriate court (in Arizona, this is usually the Superior Court for the county in which one of the parties resides).  For example, a married couple living in Scottsdale would likely file their dissolution action at the Superior Court of Maricopa County unless they have not lived in the state long enough to establish jurisdiction.  The petition tells the court the information that it needs to confirm that the parties filed in the correct jurisdiction and lays out the issues that the petitioner needs to have resolved, such as division of marital property, orders for spousal maintenance, child support, parenting time, and legal decision-making authority (formerly called custody).  Once the judge receives the petition and supporting paperwork, he will issue a preliminary injunction that orders the parties to maintain the ‘status quo’ by not unnecessarily depleting bank accounts or disposing other assets until the dissolution is complete.

Do I need to have a reason for divorce? 

Arizona, like most states, does not require fault by one of the spouses before dissolving a marriage.  Under the old system (abandoned decades ago), courts would only grant divorces if some form of marital impropriety occurred, such as adultery, abandonment, or domestic violence.  Only uncommon covenant marriages maintain limited permissible bases for divorce that are established by contract before the parties marry.  For non-covenant marriages (the vast majority), the petitioner need only declare in the petition that the marriage is irretrievably broken to begin the dissolution proceedings.  Courts may still consider marital misconduct when dividing property or scheduling parenting time, but the days in which couples attempted to fabricate a basis for divorce are over.

My spouse has all the money.  How can I afford a divorce?

With virtually infinite permutations of marital roles, it is extremely common that one spouse earns significantly more money than the other.  Sometimes, one spouse controls most of the family’s financial affairs and the other is unsure of the existence or whereabouts of community assets.  Unequal access to marital resources may work fine during the marriage, but it can also provide a basis for exploitation and stop an aggrieved spouse from seeking a divorce.

The fear of being ‘frozen out’ during dissolution proceedings should not prevent you from divorcing if you believe the marriage should end.  Even before a final judgment dividing the community property, the judge can issue temporary orders requiring the higher-earning spouse to pay spousal maintenance and other expenses during the case.  Spousal maintenance payments may continue after the divorce if one of the parties lacks substantial earning capacity or needs long-term support.  Sometimes, the judge will also order one spouse to pay the other spouse’s legal fees, especially if the higher earner acts unreasonably during negotiations.  Arizona law is structured to give parties with less bargaining power access to the same protections available to the high-income spouse.

Kid in Sprinkler

What if I lose my kids in the divorce?

There is no denying the fact that dissolving a marriage takes a toll on everyone in the family.  One of the biggest fears that traps people in toxic marriages is that the other parent will take the kids and the family will be destroyed.

First, Arizona law strongly favors granting as much parenting time to each parent as possible.  Unless there is some reason to believe otherwise, such as domestic violence or criminal history, the court presumes that each parent is fit to raise the children and that the children’s interests are best served by having a meaningful and continuing relationship with each parent.

Although many parties threaten that they will ‘battle for custody’ to prevent their spouse from proceeding with a divorce, the determination of where the children will live and spend their time depends on the children’s best interests, not the persistence or finances of one of the parents.  Unless your background or actions during the proceedings cast doubt on your ability to raise your children, your spouse cannot exclude you from their lives.  If your marriage is toxic beyond repair, it may be best for your children for you to divorce instead of keeping them in a marital home filled with conflict.  If you or your children need counseling to get through the process, that expense can also be included in the temporary orders.

Is being divorced worth getting divorced?

Whether you want to remain married is an immensely difficult question to answer.  If you are truly unhappy in your marriage, however, you should not allow fear of the legal process to trap you in a toxic or dangerous situation.  An experienced attorney with strong networking skills can get you the help you need to make an informed decision and, if you decide to seek dissolution, to make the proceedings move as smoothly as possible.  When the quality and fulfillment of your life is at stake, a positive outcome is worth investigating.

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Special Divorce Considerations for Physicians

After representing numerous doctors (and the spouses of doctors) in Arizona, we realize that physician divorces are different.  It is not that the law treats doctors uniquely — there are a host of considerations that are not present in many other divorce scenarios.  Sure, there are the usual issues, but there are complicating factors unique to physicians, such as valuation of medical practices, high asset divisions, as well as spousal maintenance claims.Doctor

There are no clear studies on physician divorce rates, but one recent article did not glamorize success rate of doctor’s marriages.  Although the accuracy 0f these statistics is not perfect, it is indisputable that these dissolutions necessitate a different level of attention because of the issues involved.  Physicians generally have complex financial issues that begin with oppressive student loans, but are also typified by numerous investments including homes, vacation homes, timeshares, retirement accounts, financial accounts, non-traditional investments, and the medical practice itself.

While not meant to be comprehensive, we put together a list of special considerations that are generally critical to physician divorces.  We use this list when initially consulting with physicians (or their spouses) to gather information necessary to form a deliberate legal strategy:

1.  Spousal maintenance:  In Arizona our statute details factors for the Court to consider in awarding maintenance (elsewhere known as alimony).  These factors include, but are not limited to, length of marriage, standard of living during the marriage, and the disparity of income.  While we have seen a number of physician/physician divorces, we also frequently see cases in which the physician’s income is significantly higher than that earned by the spouse.  Sometimes, the non-physician spouse can also argue that they supported the physician through medical school and residency and gave up their own opportunities in the process.

Doctor with xray2.  Practice valuation: Some medical practices have an actual value, much like if the family owned a restaurant.  In Arizona, the spouse would have a claim to their community share of the practice value.  However, this does not apply to all physicians.  For example, an Emergency Room doctor who is employed by an ER practice may simply be paid a rate for his work, much like the hospitalist trend that has taken root here in Arizona.  In those situations there would not be a value to the practice.  However, if that ER doctor were a partner and had an ownership interest in his practice, the analysis would be significantly different.  Similarly, some medical offices have assets to value, such as a radiology practice that owns MRI machines.  Some of these machines have used market values in excess of $1,000,000.  If the physician spouse purchased the machine and paid it off during the marriage, the non-physician spouse could be entitled one-half the value of the equipment.

3. Debts:  It is not uncommon for physicians to have large student debts that still need to be paid off.  Furthermore, while some physicians may be very conscientious of the state of their marital financial affairs, others may be simply too busy and stressed with work to know the intimate details.  For example, they may have no clue that their spouse has racked up significant credit card debt, which is presumably community debt to divide in a divorce.  Knowing what debts you have and your options for ensuring that they get paid, including offsets from other property or even reduced maintenance, is key to a comprehensive settlement.

4. Parenting Time:  Some physicians have routine and well-established schedules.  Others do not and may work a rotating schedule with abnormal hours.  Still other divorcees may be in medical school and looking at internships, residencies, and other jobs that may require relocation.  These all play an important role in determining parenting time for the children.  For physicians, or soon-to-be physicians facing divorce, it is important to maximize the quality parenting time with your children.  Your parenting plan may need built-in flexibility or other creative ways to deal with potential scheduling issues that may arise. Dad and son

5. Child Support:  In Arizona, child support is calculated pursuant to the Arizona Child Support Guidelines.  The guidelines provide the amount of support based upon the respective incomes of the parties.  The guidelines, however, do not compute additional support for combined parental incomes of over $20,000 per month (i.e. your child support is essentially capped once it is calculated at any combined monthly income of the parents at $20,000).  But for physicians it is not uncommon for incomes to be in excess of this per month, and by extension it is not uncommon for children to be accustomed to life styles that require higher than normally calculated child support.  Child support orders may deviate from guideline amounts upon showing of good cause, but the necessity of a deviation can be difficult to discern.

6.  Time and Disclosures:  Often, physicians are not used to having to fully disclose all information regarding their finances to attorneys.  They are also very busy with their practices and may even have schedules that are incompatible with normal working hours.  This makes obtaining information that is required to be disclosed more complicated than usual.  On top of this, perhaps the only exposure physicians have to attorneys before entering into a divorce proceeding is in malpractice suits.  Consequently, it is not uncommon for physicians to be too busy/skeptical/jaded when asked to provide years’ worth of financial records.  Despite this, the best policy is to be forthcoming with all required disclosures.

Physician dissolution cases require finesse and, above all else, trust between the parties and their attorneys. Ideally, a skilled attorney can navigate the treacherous waters of divorce without capsizing the family, the medical practice, or the parties involved, but the best results can only occur when each participant acts in good faith.

Implications of Protective Orders

Orders of Protection are not to be taken lightly. There are many ways an Order of Protection can affect your life.

In Arizona, Orders of Protection are governed by the Arizona Rules of Protective Order Procedures. An Order of Protection is sought when someone feels they are in danger of being physically harmed or have been physically harmed by another person. The other person must have had some type of relationship with the person they are seeking the order against. There are many relationships the parties could share or have shared in the past giving rise to a need for an Order. These relationships could include former lovers, relationship through marriage or blood, residing together, or having a child in common.

ConfrontationIn order to get an Order of Protection, the Plaintiff (requesting party) needs to go to Court and file a Petition for the Order of Protection.  The Petition could be filed with a municipal or justice court in places like Mesa, Glendale, or Scottsdale, or in the Superior Court in Phoenix.  The Court will consider the Petition for Order of Protection and can grant the Order based solely upon what the Plaintiff says.

Once the Order is granted, it is served on the defendant (other party).  At that point, the Defendant has the right to contest the Order of Protection.  If a hearing is requested, both parties need to appear in the Court and the judge will decide whether the Order should be kept in place, modified, or dismissed. This is a crucial point in the case. If an Order is not defended or contested properly, it could have lasting implications on you.

What could that mean for you if the Order is issued against you, or upheld against you after a hearing?

Orders of Protection are likely to show up on background checks run by potential employers, preventing you from obtaining certain jobs. An Order of Protection could also get you terminated from your current position or reassigned to other duties within a company or government office. Orders of Protection prevent you from possessing a firearm and, if you already own one, force you to relinquish it. The Court could also order the exclusive use of a common residence to the Plaintiff.

Gated Patio

The Order may also limit your ability to see or communicate with children, and that could also have an effect on any other pending family court cases.  Orders of Protection cannot list a child unless the judicial officer believes that “physical harm has resulted or may result to the child, or the alleged acts of domestic violence involved the child,” but the weight that the judge gives to allegations in protective order hearings is often greater than what would be given in other types of cases.

Under emergency circumstances, a judge may err on the side of caution and enter a child on a temporary basis even with a minimal allegation of danger. This is a small consolation because in the end an Order of Protection could affect permanent parenting time and legal decision-making.

Although many parties proceed without representation in Order of Protection hearings, the severe consequences of having an Order entered against you may justify retaining an attorney.  Even though the Order is temporary, its impact can last a lifetime.

Proposal Will Change Arizona Child Custody Law

A new piece of legislation in Arizona may require divorced parents to file notices with the court and serve their ex-spouse with the notices before moving.

Boxes (Woodnick)The bill, described by Bob Christie writing for the Associated Press (reprinted on azfamily.com – link here), would require divorced parents to give notice 60 days in advance of the proposed move. If their ex-spouse objects, then the parent who wishes to move would need to seek judicial approval. While this requirement is no different than the current relocation statute, the circumstances which would prompt the written notification are.

Under current Arizona law, parents are required to notify their ex-spouse if they intend to move out of state or more than 100 miles away. The purpose of this requirement is to address the impact that a long-distance move can have on the parenting time of the non-custodial parent.

The new bill removes the 100-mile “bright line” rule, and instead requires notice to be given if the proposed move substantially affects a number of parenting time related issues, such as parenting time, school attended by the children, or the traveling time for the exchanges. Proponents of the new bill say that abolishing the 100-mile rule will stop abuse by custodial parents who frequently move short distances to interfere with the non-custodial parent’s parenting time, or resolve the problem that arises when a parent moves less than 100 miles, but parenting time is still negatively affected.

Conversely, opponents fear that custodial parents’ right to travel and freedom to accept new employment opportunities. Christie’s article also points out one of many potential conflicts in the event of an involuntary move – a landlord may require a custodial parent to move after issuing a 30-day notice, leaving them without enough time to file proper notice with the court and the non-custodial parent.

Moving House (Woodnick)In Arizona divorce and child decision-making and parenting time law, the ultimate goal is to effectuate the best interests of the children in every case. For parties with a parenting plan including parenting time for both parents, the new law, if passed, will prevent abuses which are presumably allowed under current statute. It could also open the door for abuse, however, because it become so easy to object a move even if the distance is relatively inconsequential.

The interests of children are almost always best served by the agreement of the parties. Divorced parents who can come together to work out parenting plans and later amend them to incorporate the needs of everyone involved – whether those needs include moving, changing the schedule, or some other arrangement – do their children a great service. After all, having their parents repeatedly feuding in court for unmeritorious reasons is not in any child’s best interest.

Sperm Donor Expected to Pay Child Support

Reuters reports that the State of Kansas has filed a petition to declare a sperm donor the legal father of his genetic child in an attempt to make him pay child support.

The donor, William Marotta, met privately with a lesbian couple seeking to have a child, rather than arranging the donation through a licensed physician as required by Kansas law.  The couple found Marotta on Craigslist and presumably arranged the donation privately to avoid unnecessary expenses.  The couple sought to receive state benefits for the child’s medical care, prompting a mandatory identification of the child’s genetic parents – namely Marotta.

Woodnick

Marotta’s response to the state’s petition centers around a contract signed by the parties, absolving him of legal parental status and any future financial obligations arising as a result of the sperm donation.  Marotta’s lawyers cite a 2007 Kansas Supreme Court case in which a sperm donor was denied parental rights.  In that case, the parties had no formal agreement stating whether the donor maintained legal parent status or any potential obligations.

In essence, Marotta claims that the state should not be permitted to assign parental rights in the present case, where hard financial times have left the couple unable to fully provide for the child’s medical expenses, unless the state is willing to grant parental rights to all sperm donors who seek them out.

The case has drawn national attention due to its bearing on parental rights both of sperm and egg donors, as well as those of same-sex and infertile couples who hope to conceive a child.  An unfavorable ruling for Marotta would set a precedent which could be harmful to anyone seeking to conceive by artificial insemination.

In Arizona, A.R.S. § 25-501 provides that a child born as a result of artificial insemination is entitled to support from the child’s mother and the mother’s spouse, but only if the spouse is also the child’s biological father or signed a written agreement to take responsibility for the child before or after the insemination occurred.

Woodnick

It is unclear whether the state could seek support from a sperm donor in the same way as Kansas, although several Arizona Supreme Court decisions declare a universal duty owed by parents to support their biological or adopted children.  With many leading fertility specialists practicing in Phoenix, Chandler, Scottsdale, and around the state, a case like the one in Kansas may be inevitable as more individuals turn to artificial insemination as a means to have a child.

In any surrogacy situation, sperm or egg donation, adoption, or custody matter, it is important to speak to an attorney and to lay the necessary legal groundwork in advance of taking any action.  Smart legal advocacy and planning are critical, especially when the impact involves children.

Same-sex Couples, Surrogacy, and Custody

Child custody is often a complex and contested issue in the contexts of divorce and legal separation.  Parties may dispute the child’s best interests, including how much time the child should spend with each parent, where the child should live and attend school, whether grandparents should be entitled to a minimum amount of time with a child, and myriad other issues.

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At times, parties may also dispute the child’s biological parentage, which can usually be resolved with a DNA test.  Consider the following scenario, however, with which Arizona courts have struggled:

A same-sex couple conceived a child using an anonymous sperm donor.  Fertility specialists fertilized one partner’s egg and implanted it in the other partner’s uterus, who carried and bore the child.  Eventually, the parties decided to separate, and they turned to the courts to resolve both the child’s biological parentage and the appropriate parenting time to which each partner should be entitled.

In this example, the parties had no surrogacy contract and Arizona law is arguably unclear about legal parent status in this context, so the court temporarily assigned week-on/week-off parenting time to each partner so that the child would be comfortable with both potential parents.

The court moved on to the issue of legal parenthood, citing both Arizona cases and cases from other states in its holding that the legal parent of the child is the partner who provided the egg – the only partner with a direct genetic link to the child.  The court noted that prior rulings which held that surrogate mothers were the legal parents of children they had carried were held unconstitutional because they provided no opportunity for the genetic mother to stake her claim for legal parental status.

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The court also held, however, that the surrogate partner may be considered in loco parentis to the child – and could still seek a ruling entitling her to visitation with the child.

Because this case was one of first impression in Arizona, a prolonged process of appeals is likely to follow.  Because of the diversity of holdings on similar issues in other states, it is nearly impossible to predict how the case will finally be resolved.

Complex determinations can take a long time to resolve, especially if the court’s ruling is appealed.  Arizona case law states that the legal parent, defined as the biological or adoptive parent, is entitled to priority over the non-legal parent unless it is not in the child’s best interest.

Petraeus Scandal: “Royally Screwed Up”

For several weeks, the adultery scandal perpetrated by former CIA Director David Petraeus has dominated the news.  There are countless talking points surrounding the scandal (and virtually everyone has an opinion about them), but one key feature stands out: General Petraeus’ military career.

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Adultery is rarely prosecuted in the few states in which it is still considered a crime.  Generally, the consequences of adultery play out most prominently in the divorce setting.  In some states, a finding that adultery has occurred could result in significant modifications during asset division, as well as in spousal maintenance and child custody determinations.  Arizona, however, is a “no-fault” state which means that the basis for the divorce has no bearing on whether one can obtain a divorce and also does not (in most cases) affect the equitable division of property or an award of spousal maintenance. Generally the only impact adultery may have on asset division in Arizona would be if the injured spouse could prove to the court that the adultery resulted in financial waste to the community (think romantic trips, jewelry, gifts, etc.).

In the military, however, adultery can have much more serious legal consequences.  Uniform Code of Military Justice, Article 134 (UCMJ 134) prohibits “all conduct of a nature to bring discredit upon the armed forces,” and adultery has historically been included within such conduct.  Proving that the conduct brought “discredit upon the armed forces” is a difficult standard to overcome, but the Petraeus scandal would certainly qualify – the scandal has, after all, drawn worldwide attention to the military, the CIA, and the United States government as a whole.

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Court-martials for adultery have grown less common in recent years, but they do occur.  The most common avenue through which adultery comes to light in the military setting is through divorce proceedings – if a serviceperson admits to adultery during a divorce, they may be subject to a court-martial and subsequent discipline (in addition to the civil disadvantages that may occur in the state court’s dissolution action).

Life as a member of the Armed Forces differs in many ways from the lives of civilians.  An attorney with knowledge of military divorces and the unique challenges they present will ensure that your rights and assets are protected throughout the process.  Attempting to navigate the interactions of federal, state, and military law which take place during a military divorce without an attorney could expose you to both civil and – as illustrated by the Petraeus scandal – criminal penalties.

Evaluating “Goodwill” during Asset Division

In a contested divorce proceeding, valuation of community assets is often the most complicated and controversial issue.  Couples who seek a divorce often spend a lot of time (and money) posturing for the most favorable division of assets.

Particularly when businesses are involved, navigating the contours of asset division can become a hard and tricky task.  Although valuing tangible assets – like equipment – is usually a straightforward procedure, there can also be numerous “intangibles” which play a significant role (like professional goodwill).

Goodwill is essentially the value placed on someone’s reputation that will probably generate future income.  To complicate matters, there is no set formula for how to value this.  Instead, courts look at a number of factors such as the practitioner’s age, health, past earning power, reputation, skill and knowledge, and comparative future success.

In a recent Arizona Court of Appeals Decision (Walsh v. Walsh, http://azcourts.gov/Portals/0/OpinionFiles/Div1/2012/1%20CA-CV%2011-0269.pdf), the court addressed a dispute about the value of professional “goodwill” generated over the course of the marriage.

In Walsh, the husband was a partner in a large law firm.  He proposed that the value of his “goodwill” should be limited to tangible, “realizable benefits” he had, such as his stock options pursuant to a stockholder agreement.

The wife – also an attorney – disputed that evaluation, claiming that her husband could withdraw from the firm and retain his reputation and the business which comes from client loyalty, and that this goodwill had a significant value to be divided.

The Court of Appeals agreed that goodwill should not have been limited to the “realizable benefits” of the stock options and that the lower court must examine whether there is a value to the intangible asset.

The court limited its holding by declaring that goodwill is not the same as future earning capacity – “We underscore, however, that our holding does not equate goodwill with future earning capacity.  While future earning capacity may be evidence of goodwill, the earning capacity is not itself a divisible community asset.” – but distinguishing between the two is “not itself” a precise science.

Decisions like the one in Walsh highlight the complexities involved in dissolution actions involving community businesses and business interests.  An attorney who is aware of these issues can make favorably settling a contested divorce much easier (and far less costly).  Furthermore, because evaluation of assets like goodwill is largely at the discretion of the court, an attorney with a great deal of knowledge and courtroom experience is better equipped to protect your interests if a pre-trial resolution cannot be reached.

Holiday Parenting Time Conflicts

The holiday season can be a stressful time of year for a number of reasons, not the least of which is solving parenting time issues.  Here are some common problems and tips to help solve them this year:

1. Alternate time schedules: As with summer break, parents of school-age children often find their parenting schedule arrangements lacking during the holiday season.  Because many schools excuse classes for two weeks or longer, parents may need to arrange for child care during those weeks, particularly if both parents work, take classes, or are otherwise busy during normal school hours.  Such care can be costly, especially in December, so an early discussion is the best route to making suitable arrangements for parents and children.

Even if child care is not a problem, commonplace arrangements like exchanges at school may no longer be possible.  High-conflict parents may need to find alternative places to drop off and pick up their children, such as a grandparent’s or close friend’s home.  Coming together to solve scheduling problems long before the holiday break can help to reduce the impact that such changes will have on families.

2. Holiday travel: Many families travel during the holiday season.  Although long-distance co-parents may already be accustomed to working out travel glitches, planning visits with extended family may be more troublesome than usual because of busy airports, higher airfare, and tighter schedules.  If one parent objects to travel arrangements, whether because of scheduling, the mode of travel, the destination, or for some other reason, negotiating approval can take time.

For parents whose arrangements place children with one parent during the school year and with the other during time off, the holiday break may not neatly fall into either of those categories, creating another area for debate.

Preparing for these possible conflicts before finalizing any plans will likely prevent a headache later on and can reduce the impact that uncertainty has on families.

3. Holiday plans: Solving child care and travel issues may be the least of parents’ worries when it comes to the holiday season.  Often, the most difficult discussion to have is determining where children will spend the actual holidays, such as Thanksgiving Day, Christmas Eve, and so on.  These can be important days for families, and arrangements that worked well in previous years may no longer satisfy one or both parents, the children, or other family members involved in parenting decisions.

If you are in the process of establishing an initial parenting time schedule, careful consideration should be given to creating a detailed holiday schedule which specifically defines the beginning and end of the holiday, who should have the children on that holiday, and any other provisions for transportation or communication with the other parent.  Many parents going through a divorce or separation often believe that they don’t need to pay particular attention to the details of a holiday plan because “we’ll be able to work it out,” but the last thing you want is a dispute on Christmas Eve because your plan did not specifically state when Christmas Eve ends and when Christmas Day starts and your schedule is not agreeable to the other parent.

If you already have a parenting plan in place, it is still important to start talking about holiday arrangements as early as possible to eliminate potential conflicts or disputes.  If there is a conflict that cannot be resolved between the parties, court intervention may be necessary – and court intervention takes time.

Above all else, the best interest of the children is the most important factor to consider when making holiday plans.  Whether children are old enough to give their opinions or not, careful consideration of their needs and wishes should be the first step before making any other decisions.  The holiday season is a time when memories are created – early planning with children’s interests in mind is the best way to ensure that those memories are great ones.

Special Divorce Considerations for Physicians

After representing numerous doctors (and the spouses of doctors) in Arizona, we realized that physician divorces are different.  It is not that the law treats doctors uniquely.  It is that there are a host of considerations that are not present in many other divorce scenarios.  Sure, there are the usual issues, but there are complicating factors unique to physicians, such as valuation of medical practices, high asset divisions, as well as spousal maintenance claims.

There are no clear studies on physician divorce rates, but a recent article (sources not confirmed) did not glamorize success rate of doctor’s marriages.  See http://voices.yahoo.com/the-top-7-professions-high-divorce-rates-7627712.html.  While the statistics are undetermined, it is indisputable that these dissolutions necessitate a different level of attention due to the issues involved.  Physicians generally have complex financial issues that begin with oppressive student loans, but are also typified by numerous investments including homes, vacation homes, timeshares, retirement accounts, financial accounts, non-traditional investments and the medical practice itself.

While not meant to be comprehensive, we put together a list of special considerations that are generally critical to physician divorces.  We use this list when initially consulting with physicians (or their spouses) to gather information necessary to form a deliberate legal strategy:

1.  Spousal maintenance:  In Arizona our statute details factors for the Court to consider in awarding maintenance (elsewhere known as alimony).  These factors include, but are not limited to, length of marriage, standard of living during the marriage, and the disparity of income.  While we have seen a number of physician/physician divorces, we also frequently see cases where the physician’s income is significantly higher than the spouse.  Usually the non-physician spouse can also argue that they supported the physician through medical school and residency and gave up their own opportunities in the process.

2.  Practice valuation: Some medical practices have an actual value, much like if the family owned a restaurant.  In Arizona, the spouse would have a claim to their community share of the practice value.  However, this does not apply to all physicians.  For example, an Emergency Room doctor who is employed by an ER practice may simply be paid a rate for his work, much like the hospitalist trend that has taken root here in Arizona.  In those situations there would not be a value to the practice.  However, if that ER doctor were a partner and had an ownership interest in his practice, the analysis would be significantly different.  Similarly, some medical offices have assets to value.  Task for example a radiology practice that may own MRI machines.  Some of these machines have used market values in excess of $1,000,000.  If the physician spouse purchased the machine and paid it off during the marriage, then non-physician spouse would be presumably be entitled one-half the value of the equipment.

3. Debts:  It is not uncommon for physicians to have large student debts that still need to be paid off.  Furthermore, while some physicians may be very conscientious of the state of their marital financial affairs, others may be simply too busy and stressed with work to know the intimate details.  For example, they may have no clue that their spouse has racked up significant credit card debt, which is presumably community debt to divide in a divorce.  Knowing what debts you have and your options for ensuring that they get paid, including offsets from other property or even reduced maintenance, are key to a comprehensive settlement. 

4. Parenting Time:  Some physicians have routine and well-established schedules.  Others do not and may work off a rotating schedule, or work off-hours.  Still other divorcees may be in med school and looking at internships, residencies, and other job-relocating issues.  These all play an important role in determining parenting time for the children.  For physicians, or soon-to-be physicians facing divorce, it is important to maximize the quality parenting time with your children.  Your parenting plan may need built in flexibility or other creative ways to deal with potential scheduling issues that may arise. 

5. Child Support:  In Arizona, child support is calculated pursuant to the Arizona Child Support Guidelines.  The guidelines provide the amount of support based upon the respective incomes of the parties.  The guidelines, however, do not compute additional support for combined parental incomes of over $20,000 per month (i.e. your child support is essentially capped once it is calculated at any combined monthly income of the parents at $20,000).  But for physicians it is not uncommon for incomes to be in excess of this per month, and by extension it is not uncommon for children to be accustomed to life styles that require higher than normally calculated child support.  Whether or not an upward deviation of the child support should apply is something that a skilled attorney can assist with. 

6.  Time and Disclosures:  Often, physicians are not used to having to fully disclose all information regarding their finances to attorneys.  They are also very busy with their practices and may even have schedules that are incompatible with normal working hours.  This makes obtaining information that is required to be disclosed more complicated than usual.  On top of this, perhaps the only exposure physicians have to attorneys before entering into a divorce proceeding is in malpractice suits.  Consequently, it is not uncommon for physicians to be too busy/skeptical/jaded when asked to provide years’ worth of financial records.  Despite this, the best policy is to be forthcoming with all required disclosures.