Arizona Women Divorce Professionals (AWDP)

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.

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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.

On November 14th from 10:30 a.m. – noon, AWDP is hosting a presentation called “4 Secrets to Re-energize a Lifetime of Happiness & Passion.” Dr. Sheran Mattson will be the guest speaker at the presentation. Dr. Mattson is an experienced life coach, trainer, facilitator, and author. Along with Dr. Mattson’s presentation, many professionals will share their knowledge and experience regarding divorce.  The presentation will take place at the Granite Reef Senior Center, located at 1700 N. Granite Reef Rd., Scottsdale, Arizona.

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.

Click here to RSVP.

 

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The Top 5 Things to Consider Before Consulting with a Divorce Attorney

None of us get married thinking that one day we will want a divorce. Most people begin marriages thinking that they will be with their spouse forever. Then, life happens. Some couples overcome difficult obstacles together, while others realize they are not compatible with their partner. After they reach a realization that the marriage is broken, they may begin to ponder about divorce. People divorce for many reasons, and a marriage that ends with a divorce is not necessarily a failed marriage. Navigating through a divorce without legal representation can be difficult—that is why there are divorce attorneys. Before consulting with a divorce attorney, there are five major questions to ask yourself:

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  1. Am I emotionally ready for a divorce?

In Arizona, a divorce is called a “dissolution”—which legally ends a marriage. Putting legality aside, a divorce is the breaking apart of a partnership. Before a person decides to seek an attorney’s legal guidance, the person must be emotionally ready to end their marriage. A common question is: “How do you know when you’re ready to end things?” Truthfully, the answer is different for every person. You may be the party being served with divorce papers and not prepared to end the marriage. Arizona does not require both parties to consent to a divorce. Once one party feels a divorce is necessary, the process to dissolve the marriage can commence. Even if you are not ready to proceed with a divorce, emotions must be set aside to reach the best outcome for all parties involved. A divorce should be treated as a business transaction with your attorney and a social transaction with a counselor—who will be better equipped to help you through the lifestyle adjustments.

  1. Am I financially ready for a divorce?

If you are seriously thinking about divorce, do not let the financial aspect keep you from proceeding with the case. You should learn what assets and/or debts you and your spouse have acquired, and what support may need to be paid or requested by putting together a budget. Some people are afraid of being “frozen out” during divorce proceedings. In Arizona, the system is set up in a way for the lower-earning spouse to have the same protection as the high-earning spouse. Before a final judgment is made, the judge can issue temporary orders that require the higher-earning spouse to pay spousal maintenance during the case. Spousal maintenance payments can even continue after the proceedings end if one of the party requires financial assistance. A judge can also order one party to pay the other spouse’s attorney fees, either because one party is in a stronger financial position or because one of the parties acts unreasonably during the dissolution process.  Note, however, that a good attorney will never promise a fees award or spousal maintenance because these are some of the most unsettled and unpredictable areas of family law.

  1. Have I researched attorneys?

It is important to research attorneys before deciding to have a consultation. Some helpful
websites are avvo.com and azbar.org. Take an attorney’s experience, client testimonials, paper and fees into account. Sometimes it is necessary to go to multiple consultations to find the right attorney. Remember that attorneys have different styles, and it is crucial to choose an attorney with whom you are comfortable.

  1. What should I take to my consultation?

Depending on your situation, it is important to take relevant documents to your consultation. If you have already began filling out paperwork using the “Self-service
center” from the Maricopa Superior Court website, make sure to take any and all forms. Also take a pen and paper to take notes during the meeting to reference later. You should
remember to take your driver’s license and the consultation fee (if the attorney requires one). Have questions for your attorney written down so you do not waste time trying to remember them. Most of all, bring a good attitude.  A good attorney will be honest and point out both the strengths and weaknesses of your position and may offer some ‘tough love’ advice, if necessary.

  1. Do I have specific questions ready to ask the attorney?

Initial client consultations are usually less than an hour. That means you have a very short amount of time to explain your situation to an attorney, determine whether the attorney’s personality and advice aligns with your goals, and determine whether the attorney can help you with your legal issues. In that compressed time frame, you must be concise, goal-oriented, and open to hearing both good and bad news. Having specific questions already prepared before an attorney consultation will allow you to get the most out of your brief time, but be prepared to deviate from your script if the attorney points out issues you may not have considered.

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.

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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.

The Importance of Family Counseling in Dissolution and Legal Decision Making Disputes

All too often, tragedies occur in the context of divorce and custody disputes.  In Arizona we no longer use the term “custody” and instead use the phrase “legal decision making,” but for the purpose of this article we will refer to it colloquially as custody.  Unfortunately, many of those tragedies are perpetrated by the parties involved, but there may be ways to prevent the unspeakable from occurring.

On Christmas Day, a Casa Grande woman murdered her daughter, poisoned her family, and stabbed her ex-husband several times before attempting to kill herself.  Recent questioning revealed that the woman, Connie Villa, feared losing custody of her children to her ex-husband.  Few details are yet known about the couple’s 2012 divorce, made official a few months ago, and subsequent custody battle.

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Homicide is not commonplace in a family law dispute, but the threat of domestic violence, kidnapping, and other potential hazards and wrongdoing is great enough that courts often order counseling.  Furthermore, courts may order that the parties to a family law proceeding undergo a psychological evaluation, rehabilitation for substance abuse issues, and other forms of treatment to help create the safest environment possible.

Attorneys also have a pivotal role in resolving disputes in a way that promotes the long-term health of their clients and their families. Unfortunately, the professionals assigned to help guide a family through a case are limited by the good-faith participation of the parties.  For example, a husband who struggles with moderate depression may lie about his symptoms, fail to disclose his diagnosis, or refuse recommended treatment because he fears potential consequences with the court, his employer, or the rest of his family.  Conversely, the wife of a clinically depressed husband may exaggerate his behavior or fabricate an allegation of abuse in an attempt to compel a more favorable judicial result.

Meanwhile, the evaluators and caretakers are unable to make accurate recommendations to the court and cannot prescribe proper treatment of what ails the parties.  Ultimately, the failure of the parties to participate openly and honestly in the process can result in tragedies that might have been preventable.

It cannot be known whether the Christmas Day killing of Aniarael Macias, an innocent 13-year-old girl, could have been prevented, or even whether Villa suffered from an undisclosed or insufficiently treated illness, but the case provides a sad reminder of the high stakes that a family legal dispute can raise.

Welcome Back

If you are involved in a contested divorce, a custody dispute, a dependency hearing, or simply feel as though your family’s affairs are too strained to manage, the most important thing that you can do is to engage with the resources available to you.  Family court cases are immensely stressful to the parties, and even one or two counseling sessions can tremendously improve your quality of life during a difficult time.

Moreover, good-faith participation in the process, including complying with recommended evaluations and treatment, is critical.  Vexatious tactics and vengeance-oriented litigation might strain your family to the breaking point and trigger new disputes, violence, or worse.

The unseen forces that can damage a family – or an individual – beyond repair are particularly worrisome around the holidays, during school breaks and vacations, and just before or after moving to a new home or job.  Your attorney should be aware of these concerns and remind you that being overzealous in trying to protect yourself or your children might have the opposite effect of what you intended.

Arizona Judge Denies “Pregnant Man” Divorce

In December, we outlined some of the legal issues surrounding the so-called “Pregnant Man” divorce. Last week, a Maricopa County Superior Court judge ruled against Thomas Beatie, saying that he had failed to prove that his marriage is valid, azcentral.com reports.

Pearl Harbor Memorial (Woodnick)Thomas Beatie was born physically female, but began taking male hormones in 1979 and had his birth certificate and driver license changed to reflect his actual sex before marrying his wife, Nancy, in 2003. The couple later learned that Nancy could not have children, so Thomas, who had not undergone sex reassignment surgery, underwent in vitro fertilization and eventually bore three children.

Due to provisions in both the state and federal constitutions, the parties to any case before a judge – whether criminal, civil, family (as here), or otherwise – must first demonstrate that the court is legally authorized to hear the dispute. This legal authorization, known as jurisdiction, is usually a mere formality of which lawyers dispose in one or two lines at the beginning the pleadings. In some cases, however, the court’s jurisdiction is questioned either by one of the parties or by the judge (after all, the judge cannot continue to hear the case if he or she does not have jurisdiction over the controversy).

In the divorce of Thomas Beatie and his wife, Nancy, the judge ordered the parties to prove that their marriage, which took place in Hawaii, was valid as between a man and a woman. Because the Arizona Constitution defines marriage as exclusively between opposite-sex individuals, Judge Gerlach concluded that he would not have jurisdiction to dissolve the marriage if it were not valid from its inception.

Brain Diagram (Woodnick)Judge Gerlach saw the marriage as “between a female … and a person capable of giving birth, who later did so,” so he denied the couple’s request for a dissolution. Furthermore, Judge Gerlach opined that a double mastectomy is not legally equivalent to sex reassignment surgery and declared that hearing this case would be “precisely the kind of absurd result the law abhors.”

Because same-sex marriage was not legal in Hawaii at the time of the Beaties’ marriage, either, Judge Gerlach’s decision is a bit perplexing. Arizona, like Hawaii, permits an individual to have their birth certificate and driver license gender changed. Courts around the country have struggled with transgender issues because legal precedent is often absent and because contemporary psychology and neuroscience have only scratched the surface of understanding personal identity. An appeal appears likely because the Beatie case is one of first impression for Arizona courts.

Bankruptcy and Divorce

Often, a married couple’s decision to divorce comes when they are already considering filing for bankruptcy.  In other cases, bankruptcy is used by one divorcing party as a strategy to discharge some of the financial burdens of the dissolution action.  Because bankruptcy operates under federal law and dissolution is mostly governed by the laws of specific states, their intersection is rarely simple.

Alarm Clock (Woodnick)Here are some key considerations:

Timing

If you are considering both divorce and bankruptcy, timing is everything.  Under Chapter 11, § 362 of the United States Code, a petition to begin bankruptcy proceedings freezes attempts by creditors to assert claims against the debtor’s estate – a legal operation known as an “automatic stay.”  The stay only applies to a dissolution action when “such proceeding seeks to determine the division of property that is property of the [filer’s] estate,” but most dissolutions seek to do just that.  Although committee notes to the statute indicate that divorces which “bear no relation” to the bankruptcy should not be stayed, dissolution property division proceedings stop when bankruptcy begins.

If the bankruptcy filing occurs after dissolution, the parties also must consider the effects of the bankruptcy on asset division and debt allocation.  If the parties to the dissolution are both named on indebted accounts, such as vehicle loans or credit cards, one party’s bankruptcy may not discharge the debt for their ex-spouse.  Creditors could seek to recover some or all of the amount owed from the remaining debtor.

If the parties choose to file for bankruptcy before dissolution, their respective negotiating positions will be much clearer because they will know which debts were discharged.  Bankruptcy proceedings can be lengthy, however, and may result in unnecessary delay if the parties could otherwise have reached a favorable settlement.

Internal Components (Woodnick)Dischargeable (and non-dischargeable) debt

11 U.S.C. § 523 outlines exceptions to the discharge of debt which occurs when bankruptcy is completed.  Among those exceptions are fraudulently obtained moneys, some court judgments, and student loans.  Other well-known exceptions are “domestic support obligations,” including spousal maintenance and child support payments.

The fact that domestic obligations are not dischargeable may provide a false sense of security, however, because non-support components of the dissolution decree could still be discharged.  Negotiated property settlements, for example an equalization payment for the value of a business or a waste claim, may result in money that is due to the other party.  Because this obligation may or may not be classified as a “domestic support obligation,” it could potentially be discharged in the bankruptcy.  The bankruptcy court’s determination of whether an obligation in the dissolution decree is support-based is discretionary and requires specific findings by the judge.

A complex dissolution/bankruptcy scenario can be full of legal hazards to avoid and obstacles to overcome.  Attorneys for each legal action must be willing and able to work together in order to secure the most favorable outcomes for their clients after considering every option.  A family law attorney with inadequate knowledge of bankruptcy law could even run afoul of the statutes if they advise their client to assume additional debt during the dissolution with a planned bankruptcy in the future.

Spousal Maintenance in Arizona

One of the most complex and contested issues in a dissolution action is spousal maintenance.  Spousal maintenance, previously known as ‘alimony,’ is a court-ordered award of payments from the spouse with higher income to the other spouse, often for a period of months or years.

Couple (Woodnick)In Arizona, spousal maintenance awards are governed by statute, codified at A.R.S. § 25-319.  Spousal maintenance is a “two hurdle” question.  First, you have to qualify under subsection A.R.S. §25-319(A), and only if you qualify, do you look at the amount and duration of the maintenance award outlined in subsection A.R.S. § 25-391(B).

The court’s decision to award maintenance is related to the following four factors: (1) whether one spouse lacks sufficient property to provide for their needs, (2) whether one spouse is unable to be self-sufficient either through employment or because they are the custodian of a dependent child and should not be required to work, (3) one spouse has contributed (often through sacrificing their own prospects) to the education of the other, and (4) whether the marriage was of long duration or one spouse is of an age which precludes their ability to become self-sufficient.

A finding of one or all of these factors could suffice to award spousal maintenance, and the judge’s discretion is broad.  Many of the statute’s provisions, such as whether a spouse can be “self-sufficient” or is of an age which precludes their ability to gain “adequate” employment, rely heavily on the judge’s interpretation of the facts presented by the parties.  The judge must also consider what he or she knows about the world in order to determine the likelihood of self-sufficiency, such as whether a particular skill set is marketable, whether a particular field of employment is stable, etc.  Needless to say, the threshold matter of whether maintenance should be awarded largely depends on the type and strength of evidence presented by the parties to convince the judge to rule in their favor.

Once the judge determines that some maintenance is appropriate, they will turn to section B of the statute, which outlines some (but not all) of the factors used to set the duration and amount of the award.  The statute’s list of factors includes some of the same provisions as in section A, like age and duration of marriage, but also considers future earning capacity and expenses (including educational expenses for mutual children), the roles that the parties assumed during the marriage and how those roles affected their ability to enter the labor market, and even foul play and damages caused to one spouse by the other.

Again, these determinations are highly fact-sensitive and give the judge a great deal of flexibility in deciding the proper duration and amount of the spousal maintenance award.  Even the factors that the judge considers are not limited to the list in the statute: judges can consider any relevant (a legal term of art) information so long as they do not neglect applicable factors listed in the statute.

Dollar (Woodnick)Even after the spousal maintenance award is ordered, a change in the circumstances could result in modification under A.R.S. § 25-327.  This statute requires the party moving for modification to show that their circumstances have changed in a substantial and continuing way which makes the previous maintenance order no longer proper.  The statute specifically mentions the addition or termination of health insurance coverage as a potentially “modifiable” change in circumstances, but virtually any substantial and ongoing circumstance with an impact on the parties’ finances could be cause for modification.

If it sounds as though all of these provisions lack clear legal standards, then you probably read them correctly: the body of law surrounding spousal maintenance is constantly changing and very discretionary.  An effective attorney in this area is one who is creative and who understands the nuances of persuasion, as most spousal maintenance actions depend entirely on convincing the judge to adopt one party’s interpretation of a given set of facts.  The judge is not required to consider evidence which is not properly presented, and it can be difficult to modify a spousal maintenance order once it is made final.  Because an adverse spousal maintenance holding could result in thousands of dollars being improperly awarded, there is tremendous incentive to consult with an attorney – attempting to argue for or against a spousal maintenance award without the help of a qualified lawyer could have a lifetime impact on your income.

ASU’s New Beginnings Program Offers Help to Divorced Parents

Separation or divorce is a trying experience for any family, but the greatest impact is often felt in families with children.  Young children are especially vulnerable during times of change – a divorce can leave a child feeling frightened, neglected, and even worthy of blame for their parents’ dispute.  Children who witness a divorce may vent their emotions in unexpected – even dangerous – ways if they are unable to cope with the situation.  In some (thankfully uncommon) cases, the trauma of divorcing parents can cause lifelong problems for children, making them more likely to engage in high-risk behaviors and less able to handle emotional challenges.

Monkey Bars (woodnick)For parents, knowing how to talk to their children about their divorce – or whether to talk to their children about it at all – is no small concern.  There is no simple instruction book for parenting your children through tough times, and it may feel as though there is no way to help them.  If your child starts acting out or doing poorly in school, you may not realize that there are ways for you to help them.

Over the past few years, an Arizona State University applied research project has attempted to change the way parents think about divorce.  The program, dubbed “New Beginnings,” is an educational course for parents who are separating or divorcing.  The program focuses on giving parents the information and tools they need to talk to their children through the process of the divorce.

So far, the results have been tremendous, garnering national attention for the substantial long-term improvements to children’s overall well-being as a result of more effective parenting.  Research (and common sense) demonstrates that more parental involvement helps children adjust after a separation or divorce, and parents who employ more effective parenting strategies see even better results.  New Beginnings is designed to educate parents about these strategies and to prepare them for their children’s reactions to the separation as it moves forward.

New Beginnings is offered to mothers and fathers in Coconino, Maricopa, Pima, and Yuma Counties.  The program’s administrators encourage attorneys and other professionals to inform separating or divorcing parents about New Beginnings.  As interest grows, it seems likely that the program will expand, as well, meaning that parents in cities around Arizona, from the Phoenix-Mesa-Glendale Metropolitan Area to Tucson, Flagstaff, Show Low, Lake Havasu City, and beyond.

Walk (woodnick)The New Beginnings program is offered free of charge to qualified applicants, as it is funded in part by grants from the National Institutes of Health.  Parents are paid for participating in three phone interviews during the process, which allows researchers to gather information about the effectiveness of the strategies they teach so they can continue to improve the curriculum.  Free child care is even offered at the small-group workshops, making the program accessible to parents who may not be able to afford similar assistance elsewhere.

If you are thinking about separation or divorce, there is a plethora of issues to consider.  In the circuses of asset division, spousal maintenance, child support, parenting time, and custody, it is easy to get lost in the numbers and legal disputes and forget about the human impact that a dissolution action can have on your family.  Hire an attorney who can ease the burden of handling the legal issues, then take some time to guide your children through the process.  Your involvement is the best medicine for anything which might negatively impact your kids.

Dueling Appraisals in a Divorce

The process of real estate valuation in the divorce setting takes on two common forms: (1) the parties agree to hire a neutral appraiser whose evaluation of the property becomes the agreed upon figure, or (2) the parties hire their own appraisers and dispute the details of two dueling appraisals.

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Common pitfalls associated with the second scenario are easy to imagine: each party disputes the opposing party’s appraisal and a judge must determine which is more accurate.  Sometimes, the judge declines to use either appraisal and orders a neutral appraisal to settle the dispute. Even under the first scenario there can be dispute if the valuation does not come in just the way one side wanted.

Many appraisers charge greater fees when appraising for the purpose of a divorce – the possibility of litigation and the inherent complexity of determining the progression of real estate value over the course of a marriage makes the process much more arduous than a standard appraisal.  Recent upgrades – remodeled rooms, furniture, or appliances – do not often return their retail value when the home is sold, and the parties may dispute over who should keep them if they are removed.

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With the real estate market rebounding, many divorcees are finding that their marital residence or investment property is “worth the fight.”

For more about the tribulations of real estate appraisals during a divorce, read the Wall Street Journal’s recent article, entitled “Appraisers in Splitsville,” at the following website: http://online.wsj.com/article/SB10001424127887324851704578133200609815808.html

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.