Divorcing the Realtor

Steady economic recovery in Arizona has resulted in job growth, a demand for housing, the rise of home prices and, in turn, an increase in the number of people obtaining their real estate licenses.  According to the Arizona Department of Real Estate, there are now over 44,000 licensed realtors in Arizona.  That means if you’re not a realtor, you’re in luck because both of your neighbors are.  Okay, perhaps that is a bit of an exaggeration, but not by much.  Although we’re not yet seeing the number of licensed realtors that we saw during the height of the market approximately a decade ago, the numbers are steadily increasing as economic recovery continues.  Therefore, with a faiDivorcerly minimal amount of barriers to licensure, everyone from your friendly 18year-old barista to your trusted family law attorney (hint, hint) are obtaining their licenses in the hopes of cashing in on the upswing in the market.  That being said, there are several considerations to take into account in the event you are planning to divorce a realtor. 

Your Spousal Maintenance

If a court will be establishing both child support and spousal maintenance, the court will first determine the appropriate amount of spousal maintenance to be awarded.  Although there are limited guidelines for the court to follow when determining the appropriate amount of spousal maintenance to be awarded, the annual gross income of your ex will undoubtedly be at issue.  That being said, it is important to be aware that the unpredictable nature of a realtor’s compensation will make it much more difficult to pin down the amount of your ex’s annual gross income than it might otherwise be to determine the annual gross income of someone with a more traditional 9to5 job with a consistent salary and benefits.  Therefore, if the market is struggling during your dissolution, you will most likely want to insist that any award of spousal maintenance have the ability to be modified in the future.  On the flip side, if you’re getting a divorce at the height of the market, you may want to try to negotiate an award of spousal maintenance that can’t be modified.  In the alternative, you may want to consider negotiating a lump sum settlement for spousal maintenance in order to avoid future fluctuations in the market altogether.  Although a court will only order a monthly maintenance payment, your pretrial negotiations can be much more creative and flexible.

In addition, it will undoubtedly be more difficult to determine the amount of your ex’s annual gross income since realtors are able to deduct a significant amount of everyday living expenses as business expenses, such as vehicle expenses (lease payments, auto insurance, gas, oil, repairs, depreciation, etc.), meal expenses, cell phone expenses, and a home office deduction (just to name a few).  Taking the above-mentioned into consideration, and depending on the overall success of the realtor in your life, it may be worth looking into retaining a tax consultant in an attempt to decipher the amount of so-called business expenses that could arguably qualify as everyday living expenses for purposes of determining an appropriate amount of spousal support to be awarded. 

Your Child Support

Your ex’s annual gross income is also critical to determine an appropriate amount of child support to be awarded.  Luckily, you should have been able to pin this number down somewhat when determining the amount of spousal maintenance to be awarded.  Regardless, since you may request that the court modify your child support order upon a showing of substantial and continuing change of circumstances, it may be necessary to request modification of the child support order much more often when it comes to dealing with a realtor since a realtor’s income can fluctuate wildly from month to month and year to year depending on the strength of the real estate market.  That being said, the Arizona Child Support Guidelines require that courts order parties to exchange financial information such as tax returns, financial affidavits, and earning statements every twenty-four months.  Practically speaking, parties tend to make their financial information readily available if there is a good argument to be made that their child support order should decrease, but may conveniently forget about their continuing duty to disclose their financial information if their child support order should increase.  So, if it’s been more than twenty-four months, the real estate market seems to be booming and your kids report that your ex is driving a new Mercedes, it may be time to remind your ex that it’s time to exchange financial information pursuant to court order.  Depending on the success of the realtor, it could be well worth the time, expense, and potential inconvenience to make sure that your child support order still comports with the Arizona Child Support Guidelines.   

Parenting Time

Just as the unpredictable nature of a realtor’s compensation will make it more difficult to determine the amount of your ex’s annual gross income, similarly, the unpredictable nature of a realtor’s work schedule may make it more difficult to agree upon a reliable and consistent parenting time schedule.  th62zloiklDepending on the success of your ex, it may be difficult for them to exercise parenting time on nights or weekends given the fact that this is the time when most home buyers are available to view homes.  On the other hand, if your ex is struggling to make a career out of real estate, they may have more time on their hands to exercise parenting time, in which case you may be lucky enough to avoid some child care costs.  Regardless of your situation, keep track of the parenting time actually being exercised because child support can be adjusted based on the schedule.

Insurance

If your ex left a steady job at the State with great benefits in order to pursue a career in real estate, after divorcing, you may now find yourself in a position in which you are forced to purchase insurance on the private market for you and the kids which, as it turns out, is anything but affordable.  Fortunately, your child support order will take this extra expenditure into account, effectively ordering your ex to pay a portion of the cost to insure your mutual children.  Again, child support will be adjusted upwards or downwards depending on the amount it costs to insure your mutual children and depending on whether you or your ex have agreed to provide the children with insurance.  In the event you have no children in common, the fact you are being forced to incur the extra expense of purchasing insurance on the private market may be an arguable justification for an increased award of spousal maintenance. 

Dividing your Assets

Another potential point of contention when divorcing a realtor is whether commissions should be considered community or separate property depending on the timing that commissions are paid.  Should any and all commissions paid out after service be considered separate property even though close of escrow occurred prior to service?  Or, is close of escrow a more appropriate date to use when determining the classification of a commission as community or separate property?  What if a majority of the work on a deal was performed while still married, but close of escrow and payment of commission both occurred after service?  In addition to the above-mentioned, you will want to consider whether your ex waived his commission for friends and family throughout the course of the marriage.  If so, you may have a claim to half of the amount of commissions that were waived.      

Real Estate Brokers

m411Please note that all of the above-mentioned considerations will most likely be made much more complicated in the event you are in the process of divorcing a real estate broker since a real estate broker is not only entitled to commissions for any properties he or she assists in selling or buying, but is also entitled to a percentage of the commissions earned by all realtors operating under their broker’s license.  As such, determining annual gross income and whether commissions should be classified as community or separate property will be made exponentially more complicated depending on the amount of agents working for your ex.  In that case, it may be worth considering retaining a business valuation expert who specializes in real estate brokerages.

Although going through a divorce is never an enjoyable process, taking the time to thoroughly consider the above-mentioned pitfalls of divorcing a realtor could help to ensure that an equitable dissolution is ultimately reached. 

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Flippin’ Divorce

You and your husband were smitten by the success of Tarek and Christina from HGTV’s Flip or Flop. Following their lead and a strong rebound in the real estate market, you started buying houses to sell. You quit your regular jobs because you fflip-flopound you could earn much more in real estate. 2015 was amazing: you made over $300,000 flipping 5 houses around Metro Phoenix.

You have been buying everything you can and now have 10 houses in various states of repair and four under contract. Then, you just found out your husband has been sleeping with his college girlfriend. He wants out of the marriage.

When a married couple engaged in a joint business venture divorce, the process of distributing assets and debts can be much more complicated than in the average split. Here are some questions you will have to answer:

1. Taxes. Did you file last year’s taxes? Have you been making quarterly tax contributions in anticipation of this year’s taxes? What about capital gains on your growing pool of investment assets? Even if you have taken care of these issues, how will you and your unknownspouse divide the tax obligations after your divorce? You may choose to file jointly for the upcoming tax year since you were married for some of the that time, or perhaps you decide to prolong completing the divorce until after January 1 for accounting purposes. This is one area in which setting aside your (justified) feelings of resentment can be to your financial benefit because pre-dissolution planning will leave both parties better off financially after divorce.

2. Investments. You have four houses under contract (titled through the LLC that you and your spouse co-own and co-direct). Some of those properties were acquired with hard money loans and you and your spouse cannot afford to let the chaos of divorce stall the closing of escrow. Because not all properties are equal, it’s not as simple as divvying them up one-by-one and calling it square. Triangulating with your family court attorney and your business advisor or financial planner is critical to ensure that your investments are not compromised by your changing family landscape. Also, some loan contracts contain language that treats the filing of a petition for dissolution as a default event, so your lenders may come calling sooner than you anticipated.
3. Savings. Dividing your checking and savings accounts is simple enough: whatever was in the accounts at the time the divorce petition was filed is usually divided in half. But what unknown-1about your 401(k), your SEP IRA, or your children’s 529 College Savings Accounts? Determining how to properly divide and manage those assets is challenging in any divorce, but it can be especially difficult when a budding business venture is involved. For example, if you and your spouse borrowed from the 529 account while the market was investor-friendly in 2015 to supercharge your investment strategy, but never paid the money back, what will you do?Again, because your investments are more complex than average, it will probably not be as simple as drawing a line down the middle of each asset and debt.

4. The Business. As alluded previously, if you and your spouse co-own and co-direct the LLC that you use for your business (or numerous LLCs, as is often the case for real estate investment ventures with separate corporate entities for each property), then you will have to decide how to proceed. Some couples are able to compartmentalize their business and continue to work together even after divorce, but others cannot and must unravel their own complicated corporate structures in order to determine the best way to divide the property without losing too much value. This becomes even more challenging if there are other investors involved: many (if not most) corporate operating agreements contain language that triggers stock buyout options or other consequences for the filing of a dissolution petition by one of the shareholders.

5. Liabilities. Imagine that you resolve the above issues (and many others that arise during your divorce), but later you are sued by a homeowner who purchased one of the properties you flipped. They allege that you misrepresented the condition of the property and that defects in the remodeling caused injuries. You and your spouse always use licensed contractors on your projects, but since you were trying to save money on some of your earlier flip properties, it’s not clear whether the damage was caused by something you did on your own. More troublingly, the contractor has since moved to California and you are left holding the bag. Your husband’s position in the civil lawsuit is that you now solely own the LLC that sold the property, leaving you with tremendous potential exposure. Can you reopen the divorce decree to have this new liability reallocated more fairly?

Obviously the issues raised above merely scratch the surface of the concerns you should have and the decisions you will need to make. There are hundreds of family law practitioners in the Valley, but some are better situated than others to tackle complex business issues in a divorce. If you own a business and are considering divorce, you should not flip open the phone book and call the first attorney you see. Your first step should be to call around, ask questions, and find counsel who understands your business, your strategy, and your goals.

Arizona Divorce Women Professionals April Event

The Arizona Divorce Women Professionals will hold their ‘From Surviving to Thriving’ event on Saturday, April 9th, hosted by divorce coach Dana Lam.

The event will teach women going through divorce various lessons and advice to help the transition go smoother. Lam will be giving advice on how to feel better now, how to get unstuck and The Wheel Life.

Arizona Women Divorce Professionals (AWDP) is a team of highly qualified professionals who help their clients successfully navigate through the divorce process. The team is comprised of eight women who have experience in family law, including attorney Leslie Satterlee, who focuses on representing individuals going in family law litigation.

Other professionals in the group focus on financial planning, estate law, real estate, mortgages, insurance law, counseling, and bankruptcy. The divorce process can be complicated, but AWDP is here to provide knowledge and support.

The event will be held at the Scottsdale Civic Library on 3839 Drinkwater Blvd. in Scottsdale, AZ from 10:30AM-12:00 Noon.

RSVPs and Questions can be sent to info@AZWomenDivorceProfessionals.com .

This workshop is open to all and is FREE.  If you are going through a divorce, know someone going through a divorce, or merely want to learn more about the process or enjoy the presentation, we hope you will come.

 

 

Out of Wedlock Children and Family Court

 

child-custody

The number of children being born out of wedlock is starting become fairly common among many parts of the world, especially in America. Married couples who have children and later end their relationship know that they have to get a court document to officially enter into a divorce and determine legal decision making, parenting time and child support matters. However, this is not so obvious, or common, for never married couples.  But, as rates skyrocket, it is important for those never married couples to realize that they should be thinking about and entering into legal orders regarding the rights and responsibilities for their children.

If the parties were never married, they may not necessarily know each other as well; if they never lived together, their expectations and beliefs on child rearing may be very different.  This is not to say that married couples may not also have these issues, but the concept that a never married couple must jointly raise a child for years to come is potentially a different type of scenario and may be even more reason why the parties should discuss and or get a court order in place to help define their co-parenting relationship. Getting a court order would assist in the process and will possibly make things easier for the parents and the child.

So, how do unmarried couples establish their rights relative to their children?

Paternity – The first step is to establish paternity. This can be done a number of ways according to AZ law.  Without establishing paternity, however, AZ law presumes that legal custody of the child is with the mother.  After paternity is established, however, the father becomes entitled to request specific court-ordered rights to their child.

Legal Decision Making – Once paternity is established, AZ presumptions regarding legal decision making changes.  Specifically, the law presumes that the parent with whom the child has resided for the greater part of the last six months has legal decision making.  This, however, is only in the absence of a court order.  If paternity is established, it is wise for the parents to specifically determine the legal decision making rights to the children.  This can be done via a petition to establish.  Depending on the circumstances of the case, the court can grant joint legal decision making or sole legal decision making to one parent.

Parenting Time – Like legal decision making, once paternity is established either parent may petition the court to order a specific parenting time plan which will outline the exact schedule for the child with each parent, including vacations and holidays.

Child Support – A unmarried parent has no legal obligation to pay child support to the primary parent until an order of paternity is entered. However, once paternity is established, a parent, or even the State in some instances, may initiate a child support establishment.  Child support includes a determination of what amount of monthly support should be paid to the primary parent of the child, but can also include a calculation of retroactive child support for the periods of time when the parties were separated, and may even include reimbursement of certain medical costs (including birthing costs).

All of this may seem daunting to never been married couples.  However, it doesn’t have to be that way. The parents can come to agreements on all of the above and enter their agreements with the court for entry of a court order.  The presence of a court order is important as it clearly defines each parent’s rights and responsibilities for the future.

In ideal world there would be more education and/or resources available to help unmarried couples establish these important issues for the children.  But the tools are there already – you just need an experienced family law attorney who can help navigate these issues.

 

 

Divorce 101: Acronyms and Terms Decoded

Family court can often seem like you are entering a world with a different language. Many new legalese terms and acronyms are used in the field of family law. Here are some frequently used acronyms decoded: divorcecertificate

OOP – Order of Protection—civil court orders prohibiting a specific person from making contact with you such as coming near your home, work site, school, or other locations as listed on the order.  It is based on the relationship you have with the party you are seeking protection from.

CS – Child Support—Court ordered payments made by a a parent for the financial support of  a child.  Courts follow the Arizona Child Support Guidelines to determine the proper amount of support to be paid.

ADR – Alternative Dispute Resolution – a process by which the parties attempt to resolve the case without a trial.

LDM – Legal decision making (previously known as custody).  Right of a person to make decisions about the care and welfare of a child, such as decisions about education, health, personal care, and religious training.

PT – Parenting Time.  The amount of time a parent spends with the minor children.  Also referred to as “physical custody”, “access”, or “visitation”.

AFI – Affidavit of Financial Information: A document detailing a party’s financial affairs, including income, assets and debts.  This document is filed when spousal maintenance, child support or attorneys’ fees are at issue in a case.

ATLAS — A special number assigned by the Arizona Department of Economic Security, child support enforcement agency.  The ATLAS case number begins with numbers not letters.  You must have this number at any time you contact the Child Support Clearinghouse.

PC – Parenting Coordinator—a neutral person who is appointed by stipulation of the parties after an order for legal decision making and parenting time order is entered to help implement the parenting plan and resolve disputes between the parents regarding certain types of parenting disputes.

Qualified Domestic Relations Order (known as “QDRO”):  An order the divides retirement accounts and other items in a case.  A QDRO is a highly specialized document and it is recommended that you seek the assistance of an attorney that specializes in drafting QDRO’s.

Resolution Management Conference (or “Early Resolution Conference”):  A hearing that is a status conference to discuss issues of the case.  Usually contested issues are not decided by the Court at this time, but a trial date may be set later to hear evidence.  This is usually set by the Court early in a case.

TASC:  A company that provides testing for drugs and alcohol, as well as substance abuse assessments.

Many of these terms can be confusing just to understand what is being said in court. In order to get a better idea, an experienced family law attorney would be a great first step towards learning what the terms are about and how they relate to your situation.

Forgetting something? The forgotten assets of divorce

Most people going through a divorce know that they will need to divide their assets and debts accumulated during their marriage.  Most people likely also understand that this can include the house they are living in, the bank account they use to pay their bills, the pots and pans in the kitchen, and that joint credit card.  But, it is important to know that the community may include many other nuanced and not-so-obvious assets and debts.

Here are a couple assets and debts that you should be careful to not overlook:

  • Accounts titled in one spouse’s name. A separately titled account in one spouse’s name may not be dispositive of how it will be divided in a divorce.  In many cases in Arizona, title on an account does not matter so long as the money or assets of that account was earned or acquired during the marriage.  This can include bank accounts, credit cards, and retirement accounts.  So, don’t neglect to divide these accounts just because your name is not on them.
  • Retirement/Employment benefits. There may be more than just 401K funds to divide in a divorce so do not assume that there are no other retirement or employee benefits to divide. Some not-so-obvious benefits that you may want to consider are:  future right to a pension, survivor benefit options, stock options, restricted stock units, unused vacation or sick days, etc.  Some of these can be valued and divided now in your divorce.
  • Personal Property. Valuable collections are another factor of the division of assets that is often overlooked. Special collections like art, guns or coins might seem like a small factor to others. But for the divorcing spouses it can be a major tug-of-war between the two. The division of valuable collections is a process that may involve appraisals and other methods to determine their value, but spouses are each entitled to a fair division of these assets.
  • Tax Carryovers and Estimated Payments. Don’t forget to take a look at your last tax returns to see if you have any carry over losses, overpayments of taxes or estimated quarterly payments already made which should be divided between the parties for future (presumably post-divorce) tax filings.
  • Frequent Flyer Miles and Credit Card Points. You know that credit card that you have had during the entire marriage?  Well it may have racked up quite a bit of points or miles over the years and those points and miles may have quite a substantial value that needs to be considered in any division. Don’t forget to look at your credit card statements to see if you or your spouse has any points/miles to divide.
  • Business Value/Goodwill. It may seem obvious to some that a business owned by a spouse may have a value that should be divided.  This is definitely true if the business is one that is readily saleable and like-kind businesses are sold with some frequency.  But, it is possible that any kind of a business created during the marriage has some sort of value.  The value could include the tangible assets of the business, value of the ongoing business/expected revenue, goodwill of the owner, and a number of other considerations.  It is important that one does not overlook all aspects of a business valuation in a divorce.

There are multiple forgotten assets that couples find the need to divide during their divorce process. A skilled divorce attorney with experience in handling these assists would be the first step towards getting a fair division at divorce.

The Huxtable Divorce: Pop Culture Series

thecosbyshowEveryone remembers Cliff and Claire Huxtable and their kids living a chaotic yet loving life. TV has the ability to show humor and conflict and wrap it all up in a bow in less than 30 minutes.  But what if the Huxtable marriage fell apart like nearly half of all marriages in America?

Cliff was an OBGYN who ran his practice from an office connected to the Huxtables’ brownstone.  Clair was a partner at a law firm. Together they raised Sondra, Denise,Theo, and Rudy. But what if it was a façade; and in the present day, Cliff was served with a sexual harassment suit saying he had knocked up one of his labor and delivery nurses?What if Claire found out he had been dating the nurse for some time and buying her extravagant gifts? How would their personal and business lives be affected if they filed for divorce? (And let’s assume this is all taking place in Arizona for the sake of this hypothetical).

The valuation and goodwill of a business is extremely important in determining an equitable distribution of the assets of the Huxtables. In relation to Claire’s law practice, the value depends mostly on how much of the practice she owns. It may also depend on what type of law she practiced – for example, how is she paid and will she anticipate receiving ongoing future payments for her services – that were earned during the marriage – even after the divorce? In relation to the OBGYN practice, many of the same considerations will need to be evaluated. However, it is also important to consider whether there is a value to the tangible assets, office building, equipment, etc. Is Claire’s office on the corner of Scottsdale and Chaparral? If so, it’s probably worth a few bucks, and that value must be divided or offset in the divorce.

For both parties, they may have a claim to the value of the goodwill (an intangible asset based upon earning ability) of the other. Practical and strategic considerations will need to be made by both litigants about how to value and divide their professional practices and other community property.

What about Cliff’s affair? Claire may have a community waste claim based upon his extracurricular activities. The concept of waste derives from the concept that if one spouse uses community funds in such a way that is entirely contrary to the benefit of the community, it may be considered financial waste. Claire could very well assert a waste claim to Cliff if he used money to take his “friend” out to dinner, on weekend trips, or to buy gifts.

In any divorce with children in Arizona, there arise the issues of legal decision making (formerly custody) and parenting time. Any children of the Huxtables under 18 could be subject to a custody battle between Cliff and Claire. There are many considerations that the Court considers regarding the best interests of the children when entering orders on these issues. Importantly, however, Cliff’s affair is not a factor unless he inappropriately exposes the children to his extramarital activities in a way that may harm them. In Arizona, marital infidelity is not a “best interests” factor in most custody disputes. Of course, not to be overlooked, there are the other assets and debts of the parties that also still need to be examined and valued. They could include, among other things: selling the Brownstone, valuing vehicles, dividing retirement, splitting bank accounts, and dividing debts.

There are certainly a lot of issues to consider in this hypothetical “Arizona Huxtables” divorce. Both parties would certainly need to consult with attorneys because, even though Claire is a legal practitioner herself, Arizona family law is a broad and complex theater with potential pitfalls at every turn.

Holiday Parenting Plans

Holidays are a stressful time of the year, especially for divorced or separated couples. The financial burden that families face is not the only obstacle for families with parenting plans or other orders in place.  Dividing holiday time between parents, especially when long-distance relatives and travel schedules are involved, can be challenging even for separated parents with a good co-parenting relationship.

Holiday Dinner

Determining how to split time for the holidays may be overwhelming, but it is crucial to have a specific written plan. Children need to feel secure and be placed in a stable environment. Establishing parenting time for holidays will reduce anxiety for both the parents and children.  Older children, especially, benefit from a clear schedule known well in advance of the holiday, especially if the plan incorporates how the children wish to spend their time. Children should have the opportunity to spend this special time with each parent and their extended families.

In Arizona, planning holiday parenting time is often made more difficult by non-uniform school schedules and seasonal residency.  Sometimes, children in different schools (e.g., a younger child in elementary school and an older child in high school) have different release dates, shorter or longer holiday break periods, and even intersession classes.  This is especially true for families with younger children in local schools, such as Copper Canyon Elementary in Scottsdale, but whose older children attend schools in different cities, like Brophy/Xavier College Preparatory in Phoenix.

Contract

Moreover, parents should try to maintain the traditions the children have enjoyed in previous years, especially in the first holidays after a separation or divorce.  Children often struggle to come to terms with their new living arrangements when families split; accordingly, providing them with a familiar and comfortable holiday reinforces the children’s understanding that their parents still love them just as much as they did when they were together.

Logistically, parents should decide whether (and which) holidays can be spent together, should be split in partial days, or should be alternated each year. For instance, many families may divide the time on some holidays, such as dividing morning and evening on Christmas Day, but alternate which parent has parenting time all day on Halloween each year. Whether a family’s decision is to alternate holidays or divide, making this decision should be prioritized and must, per Title 25 of the Arizona Revised Statutes, promote the children’s best interests.

Often, high-conflict divorces and separations reach the boiling point when holiday schedules are discussed.  Although it’s never too late to draft a firm parenting plan, there is tremendous benefit to starting the discussion early to ensure that a good parenting plan is in place before other arrangements are made.  When deciding how to handle the holidays, be specific and put your children first.

Upcoming Changes to Custody Laws

Whether going through a custody battle or not, most people are familiar with the longstanding terms of “custody” and “visitation”.  Additionally, most people who have gone through a custody case are familiar with the term “best interests”.

Determination of the “child’s best interests” is usually the most highly contested issue in custody proceedings, and the services of a knowledgeable attorney are invaluable even if the child’s interests seem clear.  That fact will become even truer next year.

Beginning January 1, 2013, Arizona’s custody laws are changing.  Although some of the changes are only a conversion of the language used (e.g. changing “custody” with “legal decision-making” and “visitation” to “parenting time”), many others could have a significant effect on the ways that families resolve disputes regarding their children.

Factors to consider in determining the child’s best interest.  Several changes will be made to the “best interests” factors.  These changes include modifications to existing factors as well as the addition of new factors.

One new “best interests” provision specifically requires the court to consider the child’s past, present, and potential future relationship with the child.  This factor is similar to the current question of which parent has provided primary care of the child (which will no longer be a factor), but includes foreseeable future developments in the parent-child relationship, as well.  This could include how the family dynamic will change post-divorce and puts more focus on the fact that both parents may be more involved with caretaking than during the marriage when, perhaps, the parties mutually decided to split duties between child-rearing and working outside the home.  An attorney who has experience with parenting plans and the ways that they change over time can help answer questions about what these future developments might be.

Another important change is that judges will also consider whether a parent intentionally misled the court in order to delay the proceedings or to attempt to tip the scales in their favor in the judge’s parenting time ruling.  This provision is intended to foreclose the unethical strategy of delaying hearings to drive up the costs of the litigation, which can place undue pressure on a parent who cannot afford increasing legal costs.  Those costs are not limited to court fees – driving from Peoria to a courthouse in Phoenix or Mesa for numerous hearings can create a substantial financial burden, especially when parenting time and divorce proceedings so often occur close together.

If there remains any doubt as to the legislature’s intent to place the child’s best interests above all else, the new statute clarifies that a child’s wishes will be considered if the child is old and mature enough to articulate and understand them – a potentially controversial issue in many cases.

Sanctions for litigation misconduct.  Another significant change is that judges will be required to sanction parties who provide false statements (or falsely accuse another party of making a false statement) or for violating court-ordered disclosure rules.  Such sanctions can include fines, charges of civil contempt of court, and modifications of legal decision-making or parenting time if it serves the best interests of the child.

Third party rights.  The visitation rights of grandparents and individuals who stand in the place of parents will also change in 2013.

The new provision for third-party visitation will require that the child was born out of wedlock and that the child’s legal parents are not married when the third party files for court-ordered visitation.  Judges will be required to give special weight to the opinions of legal parents about their child’s best interests before granting visitation to a third party, and third parties seeking visitation rights will be required to petition for those rights in the same action as the one filed to determine legal decision-making and parenting time.

These changes could make it more difficult to grandparents and other third parties to gain visitation rights, particularly if the third party does not act early enough in the process.  If legal decision-making for your grandchild or a child for whom you acted as a parent becomes contested, it is in your best interest to consult with an attorney (as soon as possible) who can explain your rights and the best ways to protect them.

Drug and alcohol abuse.  Among many other changes to court orders of legal decision-making and parenting time, the new laws establish a “rebuttable presumption” that it is not in the child’s best interests for a parent who has been convicted of a drug offense in the last 12 months to be granted sole or joint legal decision-making for their child.  This means that judges will begin by assuming that the convicted parent should not be granted legal decision-making authority unless that parent can demonstrate that the child’s best interests are not affected by the conviction.

Overcoming the rebuttable presumption can be a steep hill to climb, especially without the help of an attorney who can analyze the conviction and decide how it will likely affect the judge’s findings about the child’s best interests.

Staying on top of a changing legal field.  Whether you are recently separated or wish to change a long-standing parenting plan, understanding the effects of new laws can be an overwhelming challenge.  If possible, do not attempt to tackle complex family law issues alone.

Leslie A. Satterlee Receives Community Service Award!

Leslie A. Satterlee was recently awarded Outstanding Community Service Award for the graduating class of 2006 from the ASU Sandra Day O’Connor College of Law.  The award was presented at a Reunion for the graduating classes of 2006, 2001, 1996, 1991, 1986, 1981, and 1976.  Ms. Satterlee received her award for her work with the Legal Assistance to Women in Shelters (“LAWS”) Program.  The LAWS program provides legal assistance and information to victims of domestic violence in Maricopa County.  Ms. Satterlee created the program in 2009 while chair of the Domestic Violence Committee of the Maricopa County Bar Association, Young Lawyer’s Division.

 

 

In addition to Leslie’s volunteer work, she is the President of the Maricopa County Bar Association Family Law Section and is in practice at Gregg R. Woodnick, PLLC where she regularly represents parties in divorce, child support and custody proceedings throughout Maricopa and Yavapai Counties.