Arizona Mediation » Arizona Divorce Law

Can Military Personnel Mediate Their Divorce In Arizona

admin — Fri, 16 Dec 2011 18:18:20 +0000

USA Today reports that the military divorce rate is at its highest level since 1999. See Military divorce rate at highest level since 1999, by Gregg Zoroya. According to the article, almost 30,000 marriages in which at least one spouse was a member of the military ended in divorce. The numbers are expected to rise as more troops are being withdrawn. Why is this happening? The article quotes Chaplain Caarleton Birch, who attributes the high divorce numbers to the fact that more military personnel are coming home, and families are not used to being together. Divorces are most common among enlisted women. Air Force personnel have the most divorces out of all of the branches with almost five percent of marriages for enlisted personnel ending in divorce during this last year.

While the procedure for getting divorce for military personnel is the same in Arizona, there are a few unique challenges. For example, there are specific rules about dividing military pensions and survivor benefits. Also, there is law to prevent certain military personnel from having to participate in a divorce action while serving.

Nonetheless, there is no need for military members to go through a contentious litigation. Military divorces, like all divorces, can be resolved through mediation. In mediation, the parties utilize a neutral (the mediator) to help resolve all issues out of court. Mediation is a good option for people looking to minimize conflict and cost. People returning from active duty may have a particular interest in having a less stressful and less expensive divorce. Further, if one party is out of state or out of the country, that party can participate in mediation through video or phone conferencing. With mediation, neither party has to go to Court. Mediation can also be used to reconcile a marriage that has been frayed by time in service.

Alona M. Gottfried is a family law mediator and attorney in Arizona. If you have questions about mediation, she can be reached at: 480-998-1500 or alona@sglawaz.com. This is a general interest article only and is not intended to be legal advice. See a legal professional before making legal decisions.

Simmons & Gottfried, PLLC
8160 E. Butherus Dr., Suite #7
Scottsdale, AZ 85260

Do I Need A Prenup In Arizona, and Can I Get One Through Mediation?

admin — Sat, 13 Aug 2011 17:45:34 +0000

Prenuptial agreements are contracts entered prior to marriage to address issues during the marriage and in the case of divorce. Prenuptial agreements are not required. However, some people feel more comfortable launching into marriage with some financial protections in place.

A common use for prenuptial agreements is to ensure someone’s sole property (property obtained prior to the marriage or by gift or inheritance during the marriage) remains his or her sole property in the case of a divorce. One can protect separate property without a prenuptial agreement by keeping it separate from community assets during the marriage. For example, if a person has a separate bank account, he/she could keep it in his/her name alone and not deposit community funds into it. However, without a prenuptial agreement, a separate asset would be more susceptible to attack. Upon divorce, the other party could claim that there is a community lien on an asset. This means that the community (the husband and wife together) helped to contribute to the value of the asset. For example, if one party owns a house prior to marriage, but income earned during the marriage went to improve the house or pay the mortgage, the other party could demand some payment. A prenuptial agreement could prevent such claims. Such agreements could apply to separate businesses as well.

A prenuptial agreement can be used to secure other agreements too, as long as the terms are not unconscionable and do not violate public policy or criminal law. An agreement can also limit future spousal maintenance – however, the Court can override that provision if the party who would otherwise be entitled to spousal maintenance now qualifies for public assistance.

To help ensure that a prenuptial agreement withstands a challenge in court, it is important that it is drafted appropriately after full disclosure of all assets and obligations. It is also important to ensure both parties had the right to obtain legal advice. However, there is no reason for both parties to “lawyer up” for an adversarial process in creating a prenuptial agreement. Both parties can jointly retain a mediator, who will help the parties reach agreements and draft the prenuptial agreement. Before signing the agreement, both parties will consult with their own legal counsel to ensure they understand and agree with the contract. By using a mediator, the process is generally less expensive and non-adversarial.

Simmons & Gottfried, PLLC
8160 E. Butherus Dr., Suite #7
Scottsdale, AZ 85260

Common Mistakes To Avoid When Getting A Divorce in AZ – Part 1

admin — Mon, 06 Jun 2011 21:03:28 +0000

I have practiced in the area of family law in Arizona for over 15 years. I have litigated divorce cases, mediated divorce cases and worked with a team in a collaborative divorce. In this two part article, I discuss the five most common mistakes I have seen people make during the divorce process (and other family law matters).

1. Making Decisions Based on Emotion, Rather Than Reason. Divorces are one of the most stressful and painful events one can experience in life. Often, one or both of the parties are extremely hurt, lost and confused. Sometimes those feelings lead one or both parties to want nothing more than to hurt their former partner. Sometimes those feelings make a person want to hold on to the conflict and prevent the divorce from finalizing because they are afraid of the unknown – life after marriage. Revenge and fear come at a big price in a divorce process. It can cause a party to engage in expensive litigation. It can cause a party to engage in unreasonable conduct that may lead the Court to sanction him or her. It can result in unfavorable outcomes in the divorce. The best course of action is to compartmentalize the hurt and the practical issues of divorce. One can see a counselor to deal with the pain and make smart business decisions regarding the divorce. One can avoid contentious litigation in favor of a mediation or collaborative divorce, which allows parties to reach agreements quickly, inexpensively and in their best interests.

2. Involving The Children In The Dispute. There are many ways to damage children during a divorce:

a. Some parents are so angry at the other parent that they try to turn the children against him or her. For example, they let the children hear them say bad things about the other parent, or they let the children read the court documents.

b. Other parents try to coerce the children to side with him or her. For example, they cry and say how lonely they are when the children are gone. Or, they bribe the children with offers of gifts and other benefits, if they tell the custody evaluator x, y or z.

c. Yet other parents withhold access of the children to the other parent, or make false allegations against the other parent to prevent access and to “win” custody.

Studies show that children of high conflict parents have emotional problems as an adult. Parents who put their children first will not put them in the middle. While there are occasions that one parent is a danger, in most circumstances, it is best to let the children have a good relationship with both parents. It is also usually most beneficial to work to form a relationship with the other parent that will allow peaceful co-parenting of the children into adulthood. Mediation fosters that kind of relationship; litigation usually does not.

Please click here to read the second part of this article.

Alona M. Gottfried is a family law mediator, collaborative divorce attorney and litigation attorney in Arizona. If you have questions about divorce/family law options, she can be reached at: 480-998-1500 or alona@sglawaz.com. This is a general interest article only and is not intended to be legal advice. See a legal professional before making legal decisions.

Simmons & Gottfried, PLLC

8160 E. Butherus Dr., Suite #7

Scottsdale, AZ 85260

What Is A Default Decree Or Default Divorce In Arizona?

admin — Tue, 15 Feb 2011 20:17:43 +0000

A divorce is initiated in Arizona when a party filed a Petition for Dissolution of Marriage. The party who files the Petition is called the “Petitioner.” The other party is called the “Respondent.” The Petitioner has to serve the Respondent with the Petition. Service is completed with the aid of a process server. In the alternative, service is completed when the Respondent voluntarily signs a document called an Acceptance of Service. The Respondent, if living in state, has 20 days to file a Response with the Court (if the Respondent lives out of state, he/she has 30 days). Filing a Response requires a filing fee or a Court waiver of the filing fee.

If the Respondent does not file a Response in time, the Petitioner can file an Application and Affidavit for Default. If the Respondent does not respond within ten days thereafter, a default is entered. The Petitioner can then go to a default hearing without the Respondent’s participation and obtain the orders the Petitioner wants, so long as the requests are consistent with the Petition for Dissolution of Marriage and the law. The resulting Decree is sometimes called a Default Decree

It is rarely a good idea to allow an action to go to default. Even if you think you are on the same page as your spouse, you will have a difficult (or impossible) time doing anything about it if the Decree ends up differently than you wanted. If someone has obtained a Default Decree or judgment against you, and you want to try to contest it, time is of the essence. Talk to an attorney immediately.

Even if you do not want to contest the divorce, instead of allowing the default, your best option is to enter into a Consent Decree with your spouse. That means you both agree to and sign a proposed Decree, which is submitted to the Judge. Neither party goes to Court.

A very effective way to reach agreements and enter into Consent Decree is in mediation. The parties sit down with a mediator, who is a neutral party skilled in conflict resolution. In mediation, you work through any disagreements and come up with a Decree that is mutually agreeable. The mediator can make sure the documents are properly submitted to the Court. Mediation is a smart way to avoid the risk of a default action, as well as the stress, cost and risk of a litigated action.

Simmons & Gottfried, PLLC
8160 E. Butherus Dr., Suite #7
Scottsdale, AZ 85260

Arizona Child Support and Recent Revisions to the Guidelines

admin — Tue, 08 Feb 2011 00:35:28 +0000

Arizona uses guidelines to determine appropriate child support. The guidelines base the amount of child support entered on:

Both parties’ incomes or attributed incomes (the Court can attribute income if a parent could earn more than he/she is earning);
Whether either parent is paying or receiving spousal maintenance to/from the other;
Whether either parent has other children;
The number of children;
The number of children over age 12;
The cost of health insurance premiums for the children, and who pays for it;
The amount of daycare, extra education and extraordinary child expenses and who pays those expenses; and
The parental access schedule.

The Court may enter an amount different than the guidelines require, under certain circumstances.

Arizona has approved revised child support guidelines. These guidelines apply to all child support orders entered after May 31, 2011. The revised guidelines raise the base amount of child support. The revised guidelines also increase the self support reserve from $775.00 to $903.00. This means that a parent has to have at least $903.00 per month in actual or attributed income to support him or herself before having to pay support. The revised guidelines also list a “significant disparity of income” as a basis to deviate from the guidelines. A copy of the revised guidelines can be found at: www.azcourts.gov/Portals/22/admorder/Orders10/2010-116.pdf.

Parties can initiate or modify child support either by filing the appropriate documents with the Superior Court, or by initiating the process through mediation. Mediation is a process whereby parents use a neutral party (a mediator) to help the parents come to binding agreements and submit the appropriate documentation to the Court. Mediating child support issues has the benefit of reducing the cost, stress, time and animosity usually connected with a contentious Court Action. The parties have more flexibility when they mediate the issue of child support, as they can agree to appropriate deviations. Courts have the authority to approve agreed to deviations where the agreement is in writing (as it would be in mediation), the parties knew what child support would be under the guidelines, and the parties entered the agreement free of duress and coercion.

Simmons & Gottfried, PLLC
8160 E. Butherus Dr., Suite #7
Scottsdale, AZ 85260

Using Mediation To Form A Prenuptial Agreement In Arizona

admin — Wed, 02 Feb 2011 15:33:25 +0000

A prenuptial agreement is a contract between two parties who intend to marry detailing their money-related agreements. Arizona refers to these agreements as “premarital agreements” and defines them as agreements: “between prospective spouses that is made in contemplation of marriage and that is effective on marriage.” Agreements can address issues during the marriage, and in the case of divorce.

To be valid, the agreement must be in writing and signed by both parties. One can fight the validity of the agreement if that party did not enter the agreement voluntarily or if: (1) an agreement was unconscionable when executed; and (2) and there was inappropriate disclosure of property and financial obligations.

A prenuptial agreement can be used to define property rights and debt obligations. For example, if one party has a business prior to marriage, the parties can agree that that business will remain hers alone. A prenuptial agreement can also be used to limit or extinguish one’s right to spousal maintenance. However, the Court can override that provision if the party who would otherwise be entitled to spousal maintenance now qualifies for public assistance. A prenuptial agreement cannot adversely impact child support.

Parties can also agree to other terms, so long as they do not violate criminal law or public policy. For example, the parties can limit expenditures during the marraige and encumbrances on community assets.

Discussing a prenuptial agreement with one’s future spouse may seem…awkward. However, if done correctly, the prenuptial agreement may actually strengthen a marriage. Discussing money issues prior to marriage will facilitate trust and set the foundation for open communication. Agreements allow the parties to form mutual understandings and expectations about an issue that traditionally causes so many problems in a marriage: money. More people are now marrying later in life and coming into marriages (and sometimes second or third marriages) with substantial assets and debts. Such conditions make prenuptial agreements are even more important.

Using mediation to reach prenuptial agreements is especially effective. Mediation is a non-adversarial process. The parties sit down with a mediator – who is neutral — to reach agreements. Mediating the matter helps to facilitate communication and sets the path of the parties making decisions together. The parties still need individual attorneys to review the agreements and ensure that the parties are entering into the agreement with full knowledge and understanding. However, with a mediator, the process is less like two combatants negotiating a contract through attorneys, and more like future spouses working together in a friendly manner to agree on their financial future.

Simmons & Gottfried, PLLC
8160 E. Butherus Dr., Suite #7
Scottsdale, AZ 85260

Using A Post Nuptial Agreement To Preserve Your Arizona Marriage

admin — Mon, 24 Jan 2011 02:41:29 +0000

It is a well established fact that money issues are a big cause of marital discord and divorce. Sometimes, entering into an agreement after marriage defining financial rights and obligations can serve to save a marriage and end perennial fighting.

In Arizona, the Court’s recognize the right of married people to enter written agreements after marriage. This type of agreement is called a postnuptial agreement (by contrast, prenuptial agreements are entered into before a marriage). The purpose of a postnuptial agreement is to resolve monetary issues during the marriage and in case of a separation or divorce. The agreement limits uncertainty if the parties divorce and provides guidelines for managing assets and debts during the marriage. The agreement can cover everything from defining property and debt as separate or community property, defining spousal maintenance if the parties should divorce, setting forth a household budget and deciding long term care options.

Unlike prenuptial agreements, there are no statutes defining the requirements of a postnuptial agreement in Arizona. However, Arizona has recognized the validity of postnuptial agreements in a 1969 in a case called In Re Harbor’s Estate, 104 Ariz 79, 449 P.2d 7 Ariz. (1969).

Postnuptial agreements must be fair, and, if the agreement is challenged, the person asserting that the agreement is valid must prove that it is fair and equitable by clear and convincing evidence. A party can also challenge an agreement under normal contract defenses like fraud or duress.

To help ensure that an agreement is binding, the parties should disclose their full financial situation and make sure both parties review the agreement with their own attorneys before signing it.

Couples can use a mediator to help them draft the prenuptial agreement. A mediator is a neutral professional trained in conflict resolution who can help parties reach an agreement in a non-adversarial setting. While both parties should still have independent attorneys review the agreement, by crafting the agreement in mediation, the parties forgo what might otherwise be an adversarial process of lawyers sending letters and draft agreements back and forth.

CNNLiving posted an article on April 2, 2008 called Quit Fighting – Get a Postnuptial Agreement, by Robert DiGiacomo. It details one couple’s successful use of a postnuptial agreement to save their marriage. The wife was concerned about losing everything because they had taken out two mortgages and spent inheritance money to support the husband’s business. In mediation, the parties reach an agreement to transfer the house into the wife’s name to address the wife’s fear of losing the house and to protect the asset from the husband’s business debt. The parties also agreed on how to divide their household expenses. They both had the agreement reviewed by an independent attorney to ensure that they understood the agreement and that it was fair. The couple credits the postnuptial agreement as the reason they were able to celebrate their 30^th wedding anniversary.

Simmons & Gottfried, PLLC
8160 E. Butherus Dr., Suite #7
Scottsdale, AZ 85260

Arizona Divorce Laws

admin — Thu, 13 Jan 2011 22:05:32 +0000

There are a number of divorce laws in Arizona that the Court and parties are to rely on in the Arizona divorce process. There are statutes (called the “Arizona Revised Statutes” or “A.R.S.”), which are laws created by the Arizona legislature. The laws regarding a dissolution of marriage are set forth in Title 25 of the Statutes. That Title also addresses paternity actions, separation actions, grandparents/non-parents actions and modification and other post-decree actions. The most widely referenced statutes in a divorce action are: A.R.S. § 25-318 (property and debt division); 25-319 (spousal maintenance); 25-320 (child support); and 25-324 (attorney’s fees and costs).

Another type of law is called case law, which are decisions issued by the Arizona Court of Appeals or Arizona Supreme Court on issues raised in family law cases. Case law assists in the interpretation of and development of the law. Finally, the parties must follows rules dictating proper procedures for court, which are called the Arizona Rules of Family Law Procedure. Parties who choose to represent themselves are expected to know the laws and rules and are held to the same standard as attorneys.

Parties who do not want to go through contested litigation or do not want to worry about properly submitting documentation to the Court should consider mediation. Mediation is a process in which parties resolve their issues with the aid of a neutral party skilled in conflict resolution. Parties to a family law mediation can rely on the mediator to prepare documents for the parties and make sure the documents submitted to the Court are procedurally proper. People who are interested in mediation should make sure the mediator they speak to offers this service. The mediator can also guide the participants to a resolution on all necessary areas and assist the parties in, for example, calculating support. The mediator is neutral and does not act in the role of an attorney (an advocate). However, parties are free to consult with attorneys within the mediation process.

Simmons & Gottfried, PLLC
8160 E. Butherus Dr., Suite #7
Scottsdale, AZ 85260

The Easy Arizona Divorce

admin — Wed, 29 Dec 2010 22:45:59 +0000

The office supply store Staples is well known for their “Easy Button.” A person presses the large red button and quickly gets what he/she wants.

Arizona Easy Divorce

Is there an Easy Button for divorces in AZ? There are admittedly very few easy divorces in Arizona because divorces are normally fraught with emotional pain. But there is an “easy” divorce process – mediation.

In mediation, the parties work cooperatively to reach agreements with the assistance of a mediator. The mediator drafts and files all of the paperwork and guides the parties through the process, making it as easy and worry-free as possible. By choosing mediation, parties avoid the stress of:

Large attorneys’ and experts’ fees bills
The uncertainty of how to properly complete and file documents with the Court
The accusatory letters and pleadings that pervade contentious litigation
Going to Court and testifying in a public forum
The long waiting period for the completion of the divorce
The uncertainty of outcomes after trial

With mediation, parties generally share the cost of one professional – the mediator. Parties are still free to use professionals in the mediation process, if they would like. The average mediated divorce takes under 90 days to complete (the law requires parties to wait 60 days after service to submit a consent Decree). Mediation participants do not even have to set foot in the Courthouse. Finally, mediation has the benefit of being confidential.

By ending their marriage in a cooperative and amicable fashion, mediation participants find that they are able to move forward in their lives in a much more positive manner.

Alona M. Gottfried is a family law mediator and attorney in Arizona. If you have questions about mediation, she can be reached at: 480-998-1500 or alona(at)sglawaz.com. This is a general interest article only and is not intended to be legal advice. See a legal professional before making legal decisions.

Simmons & Gottfried, PLLC
8160 E. Butherus Dr., Suite #7
Scottsdale, AZ 85260

Is Arizona a No Fault Divorce State?

admin — Sun, 30 May 2010 15:33:18 +0000

In Arizona, you do not have to prove someone is at fault (caused the divorce) to get a divorce. You do not have to allege that the other person is cheating, stealing or is abusive.

The Court is unconcerned with a spouse’s bad or unethical conduct, except if it impacts the best interests of any common children (for example: domestic violence or drug abuse). Also, if the misconduct constitutes financial misconduct (hiding/wasting money, for example), the Court may award the innocent party more assets or fewer debts or award that party more or longer spousal maintenance. Finally, if a party engages in misconduct during the divorce action, the Court can order that party to pay some or all of the other party’s attorney’s fees and costs.

The only other reason the Court will be interested in a party’s misconduct is if the parties have entered into covenant marriage. Parties enter into a covenant marriage by declaring that they intend to do so when they apply for a marriage license and submitting an affidavit stating that they attended premarital counseling. Basically, the parties are agreeing that they will be married for life, and they voluntarily and legally restrict their ability to get a divorce. With a covenant marriage, parties can only divorce if both parties agree, or if certain other circumstances exist (adultery, felony incarceration, living apart for specified periods of time, domestic violence, or drug or alcohol abuse).

Whether or not you believe your spouse is at fault for the divorce, mediation, rather than litigation, is often the preferred method of getting a divorce. Rather than spend copious amounts of time, money and energy on fighting with your spouse in Court (which rarely makes anyone feel better), you can work cooperatively to end your marriage in an efficient and less expensive and less stressful manner. All issues can still be addressed in mediation. You can address spousal maintenance, a division of assets and debts and every other issue in mediation. The Court will still ultimately issue the Decree of Dissolution of Marriage, which you will have jointly submitted to the Court, without the necessity of actually going to Court. With mediation, most participants are able to move forward with their lives with less disruption and turmoil.

Alona M. Gottfried is a family law mediator and attorney in Arizona. If you have questions about family law or mediation, she can be reached at: 480-998-1500 or alona(at)sglawaz.com. This is a general interest article only and is not intended to be legal advice. See a legal professional before making legal decisions.