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Divorce

What exactly do divorce decrees cover, as far as liabilities for existing debts are concerned?

What should I look for in a divorce attorney? How can I be sure that I'm getting the best possible settlement?

I have committed adultery. Will my spouse get the lion's share of everything, including property and higher-than-usual child or spousal support?

What is a legal separation? How does it differ from a divorce?

I want a divorce, what do I do first?

Can one lawyer represent both my spouse and me? I think it would save us time and money.

My husband and I have decided to divorce after 20 years of marriage, and I'm wondering about our joint finances. When should we separate our joint bank and credit-card accounts? Should I apply for my own credit card? And if one of us were to run up large balances on the joint credit cards, would both of us be responsible for paying them?

Can I get divorced in Arizona?

What is the procedure for obtaining a divorce in Arizona?

If I file for divorce, how can I protect certain assets (family heirlooms, etc.) from my ex?

What is the difference between a contested divorce and uncontested divorce?

Can a participant to a divorce be ordered to pay the opposing party's legal expenses?

What is a premarital or prenuptial Agreement?

Can a spouse collect alimony in Arizona?

What is a covenant marriage and how does it affect divorce?

What is community property? What are community debts?

What are the grounds required for obtaining a divorce in Arizona?





Q: What exactly do divorce decrees cover, as far as liabilities for existing debts are concerned?

Debts that were obtained in the name of both spouses before a divorce (meaning both husband and wife signed a document or application saying that they were responsible for the debts remain the obligations of both parties after a divorce, no matter what a divorce decree says as it related to third-party creditors. Therefore, if your ex-spouse does not pay a debt that he/she was assigned in a divorce decree, then YOU are responsible for it.

Be aware:

If you are divorcing your spouse, pay special attention to credit accounts held jointly, including mortgage, home equity loans and credit cards. Refinancing (paying off the joint mortgage) is the only way to get off of the mortgage loan.

In conjunction with a divorce, ask creditors to close any joint accounts. Try to convert or reopen these in individual accounts.

A joint account means both spouses are legally responsible to the creditor for the account. This is true even if a divorce decree makes one spouse responsible to the other for paying off the joint account (since creditors are not party to this agreement).

On jointly held accounts, your credit will suffer if a former spouse handles it irresponsibly. This could happen, for example, if a former spouse makes numerous charges on a credit card and then refuses to pay.


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Q: What should I look for in a divorce attorney? How can I be sure that I'm getting the best possible settlement?

Choosing the right attorney is one of your most important decisions when ending your marriage and successfully beginning the next phase of your life. The right matrimonial lawyer can help provide you with financial security; the wrong lawyer may lead to the loss of community assets that are rightfully yours, or may even result in your losing custody of your children. You need an experienced and concerned attorney to fight for you, guide you through the legal process, and respect your needs. Litigants in divorce cases often change lawyers before the conclusion of their case. Part of the problem is that clients don't always put enough time and effort into selecting their attorneys.

Before making your decision, interview attorneys. Allow a wide range of factors to weigh into your decision. Do not choose a lawyer based solely on what others say. The fact that your friend or relative has recommended a particular attorney does not mean he or she is right for you; be discriminating.

Knowledge of family law and experience are the most important criteria for selecting a divorce and family law attorney. An experienced divorce and family law attorney will be familiar with the law, its trends, and the legal system. When a problem or crisis arises in your case, the seasoned lawyer is less likely to be caught off guard and more likely to be prepared to handle it. Pose the following questions to each attorney you interview to determine their level of knowledge and experience:

  • How many years have you practiced law? A lawyer who has practiced ten or more years is more likely to have a strong base of knowledge and experience.
  • During the past ten years, what percentage of your practice has been devoted to divorce law? Look for a lawyer who devotes at least half of his or her time to divorce and family law.
  • How many contested divorce trials have you had during the past five years? Although a lawyer may otherwise be knowledgeable, he or she may have limited courtroom experience.
  • How many contested custody cases are you currently handling? Custody cases require special and unique skills; a lawyer may be experienced in divorce cases but have minimal experience with custody matters.
  • Do you frequently handle complex or large asset cases? You do not want to be the guinea pig for a lawyer who is just learning the ropes or who handles only simple cases.

As a client, you deserve to be treated with dignity and respect. In this area, your "gut feeling" about the lawyer can be your best guide. Do you feel comfortable talking to the lawyer? Do you feel that the lawyer is condescending to you? Be wary of lawyers who are abrupt and inattentive. Keep in mind that you will spend many hours with your lawyer during the course of your case. The process of a divorce is often time consuming and emotionally draining. If you are uncomfortable with your lawyer, this may be a constant source of additional stress to you. Does the lawyer want to win for you? There is a greater likelihood that the lawyer will be committed to your case if he or she is interested in and excited about your case at the onset and is not distracted or preoccupied. A lawyer's interest in your case may be revealed by a lively and energetic search for facts and detail.

A divorce and family law attorney often needs the assistance of other attorneys and paralegals. Your lawyer can delegate certain tasks, such as legal research, to other attorneys or paralegals with lower billing rates.

Similarly, a strong support staff can keep your case from grinding to a halt if your attorney is unavailable due to a prolonged trial or a vacation. In these instances, it may be necessary to talk to another attorney in the office who is familiar with your case. Ask how many lawyers in the firm handle divorce and family law and about their availability. You may also want to meet other lawyers in the firm or department to determine whether you can establish a rapport with them as well.

A lawyer should have a reputation for being trustworthy, credible, well prepared and reasonable. Often divorce cases require knowledge of other fields of law, such as real estate, bankruptcy, personal injury, criminal, commercial, estates, trusts, and tax law. You should ask whether the law firm has other departments that are available for consultation when needed.

Also, a divorce and family law attorney must rely on outside experts to render opinions related to custody matters and appraise assets such as businesses, real estate, pensions and personal property. Find out whether the lawyer has prominent and credible experts accessible to him or her for these services.

Make sure you choose an attorney who is willing and able to adapt to your changing needs. Though you may want a lawyer who is sensitive and compassionate toward you, keep in mind that these qualities alone are insufficient. There are also times when your attorney must be assertive and tenacious, especially when dealing with your spouse, your spouse's attorney, and the Court. A lawyer who exudes strength and confidence during your initial interview is more likely to be able to be aggressive when the need arises.

Every case requires a plan of action consistent with goals that the lawyer and client mutually agree upon. Unless your lawyer develops a strategy and remains focused on your goals, your case may become prolonged and costly. During the interview, ask the lawyer what result could be reasonably obtained and what strategies could be implemented to achieve your goals. The lawyer's response to this question will give you insight into his or her analytical skills and ability to develop a strategy.

The Rules of Court mandate that an attorney and client have a written fee agreement. The agreement normally provides for a retainer (an initial lump sum payment that will be applied towards future bills) and an hourly rate charged by the attorney. The difference in hourly rates and retainers among experienced divorce lawyers is relatively insignificant. It is most important that you feel confident that the lawyer is trustworthy because you cannot independently verify all the time spent on each task.

It's important to realize that an expensive attorney is not always a skilled attorney. On the other hand, don't let somewhat higher legal fees deter you from retaining a skilled lawyer. An experienced lawyer may cost more now, but the long-term financial benefits may outweigh that cost later. For example, if your lawyer obtains $50 more per week in child support for your three year old, after 18 years you would receive an additional $46,800.

If you have a strong, experienced lawyer fighting for your best interests, you can devote more time and energy to your emotional and psychological well-being, and start looking forward to your new life.

 


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Q: I have committed adultery. Will my spouse get the lion's share of everything, including property and higher-than-usual child or spousal support?

In a nutshell, adultery is a non-issue in Arizona and, as an act, is totally irrelevant to the division of property, child and spousal support, and custody issues -- except in very, very limited circumstances. The only time adultery comes into play is if the act is committed in front of a couple's child or children. Presuming that has not occurred, the mere act of adultery does not figure when it comes to the conditions of ending a marriage in Arizona.

Rather than the act of adultery, it is the act of expending community-property funds on an extra-marital partner that gets people in trouble. For example, if a wedded partner spends money from a joint checking account on his or her lover's condo or apartment, or buys them jewelry or some other gift, not only could there be a claim for reimbursement, but also a claim for breach of fiduciary duty. Legally, that partner has misappropriated community money, and that is the crux of the issue. In other words, it is a violation of the fiduciary duty of the wedded spouse. There are specific laws in Arizona as to breach of fiduciary duty and its ramifications, and their financial and emotional effect can make dissolution very costly.


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Q: What is a legal separation? How does it differ from a divorce?

A legal separation is also an order entered by a court. The legal procedure for obtaining a legal separation is the same as for a divorce.

A decree of legal separation means that the parties live apart, but neither party can remarry. The decree of legal separation, similar to a divorce decree, also divides the property and debts, provides for support (if appropriate), and ends the community for purposes of community property or debts.


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Q: I want a divorce, what do I do first?

Before beginning a divorce, it is always wise to consult with an attorney, whether you will be retaining an attorney initially or instituting the divorce action on your own.

During the Initial Consultation at Nirenstein Garnice PLLC, you will be educated as to the applicable laws that pertain to your specific situation. You will also discuss with the attorney or attorneys, in detail, the specific facts relating to your situation so that the attorney(s) may provide advice and counsel on what options are available for you going forward. Before you take any action, you must know what possible outcomes may result.


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Q: Can one lawyer represent both my spouse and me? I think it would save us time and money.

Divorcing spouses should never, ever be represented by the same lawyer under any circumstances. There are a number of options available for couples that have decided to end their marriages, and it is indeed possible to save time and money, but having one lawyer for both parties is not one of them. The one thing we tell everyone loudly and clearly is that having one lawyer represent both you and your spouse is a recipe for disaster, and is in fact, impermissible according the Arizona Rules governing the ethical behavior of attorneys.

The most prevalent option is litigation, in which the spouses and their lawyers go to court where a judge will ultimately determine the issues like custody, support and property. It can exact a very costly and painful toll.

Another option however, is mediation, which allows a third party (like a family-law attorney, or a therapist -- if custody is involved) to privately work on a binding resolution to resolve the issues and arrive at a final agreement that will be endorsed by a judge. Mediation is a fabulous way to avoid serious financial burdens and many months of depositions and court appearances. But, as always, there are pros and cons to using mediation.

The bottom line is never to allow a spouse to persuade you that a divorce can be equitably handled by sharing one attorney. Both of you will come out losers.

 


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Q: My husband and I have decided to divorce after 20 years of marriage, and I'm wondering about our joint finances. When should we separate our joint bank and credit-card accounts? Should I apply for my own credit card? And if one of us were to run up large balances on the joint credit cards, would both of us be responsible for paying them?

The way the two of you interact during the earliest stages of your divorce will set the tone for the entire process. Handled improperly, your divorce can be unnecessarily contentious, prolonged and costly, and settlements can be unfair or unworkable. Aside from your major economic goal -- to financially survive your divorce -- you and your husband will most likely need to continue to interact once your divorce has been finalized. Unnecessary emotional scarring during the divorce process can make this much more difficult.

Too often clients come to Nirenstein Garnice PLLC after their divorces have been finalized. This is a major mistake. Working with an experienced attorney in the earliest stages of divorce can help you focus on your long-term situation, and empower you to make better and more informed decisions during the process. Although you undoubtedly have legitimate emotional issues, your future finances should not be controlled by ignorance, anger, or emotional pain. Although it's not always easy to do, the more business-like you are during the divorce process, the better off you are likely to eventually be -- emotionally as well as financially.

You've raised some important issues. The bottom line is that you and your husband are still financially connected, and with this connection comes certain risks. For example, credit-card companies will hold both of you personally responsible for joint credit-card debt. If one of you decides to go on a spending spree or fails to make timely payments on any debts, the financial consequences to the other party can be disastrous. The best way to deal with this problem (assuming that the two of you are still able to work together) is not to unilaterally close or freeze all of your joint accounts -- this will only raise the stakes -- but to try to work with each other to minimize the risks.

Here are some suggestions. First, make sure that each of you has a complete set of financial documents. It would probably be best to close any joint credit-card accounts. However, if you have not already established credit in your name, you should do so before the existing accounts are closed. In the interim, a formal written agreement between you and your spouse on the short-term use of these accounts or other potential sources of marital debt (such as equity lines of credit) would be helpful. You should also open individual bank accounts and separate whatever cash you can reasonably and quickly agree upon. Investment assets that can not easily be separated should be frozen by calling and writing to the respective financial institutions. If there is a need to maintain a joint checking account, you should probably formalize in writing the purposes of the account and require both signatures on any future checks. Any existing ATM cards should be destroyed. To further reduce individual exposure, the titles on any large accounts, including the marital residence, should may be changed to "tenants in common." Finally, your safe-deposit box should be jointly inventoried and frozen if necessary.

Although joint handling of the above matters can increase the likelihood that your assets will remain intact, it is not without risk. It you have doubts that the two of you will be able to work together honestly and amicably, you should seriously consider immediate action to separate your finances. This will probably increase hostility, but the long-term benefits may far outweigh the costs.

 


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Q: Can I get divorced in Arizona?

In Arizona, a divorce is called a "Dissolution of Marriage" proceeding. Arizona residents who have lived in Arizona for more than 90 days may petition the court for a dissolution of marriage. If both parties and all minor children have resided in the state for more than six months, Arizona will have jurisdiction over the divorce, property, custody, and support. In most cases, in order for Arizona to have jurisdiction over child custody matters, the children involved must have lived in Arizona for at least six months.

If you have lived in Arizona for more than 90 days but your spouse has never lived here, the court may grant a dissolution of the marriage, upon proper service on your spouse, and divide property and debts in Arizona. If your spouse never lived in Arizona, the court cannot order your spouse to pay child support or spousal maintenance, or to pay debts.


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Q: What is the procedure for obtaining a divorce in Arizona?

To begin the divorce, a Petition for Dissolution of Marriage, i.e., the petition, must be filed by one person. The petition must be served on the person's spouse by a process server authorized in Arizona. As an alternative to personal service, the person receiving the petition may sign an Acceptance of Service which acknowledges receipt of the petition.

After service or signing the Acceptance of Service, the person receiving the petition must file a written response within 20 days if served in Arizona, or 30 days if served outside of Arizona. If a person does not respond to the petition at all, a default will be entered and the divorce decree can be entered without further notice to that person.

There is a 60-day waiting period before a divorce decree may be signed by a judge. This time starts to run from the date the person is served or accepts service.

If a response is filed to the petition, then the case must be scheduled for a trial before a judge, who will hear the case and decide the issues and grant the divorce. The parties may enter into a written agreement and submit that to a judge instead of having a trial.

A divorce may not be granted by mail. At least one person must attend a final hearing at which time a judge signs the divorce decree. Once the decree is signed, it is filed with the Clerk of Court immediately and the divorce is final. There is no further waiting period.

 


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Q: If I file for divorce, how can I protect certain assets (family heirlooms, etc.) from my ex?

Know that the family heirlooms given to you by your family do rightfully belong to you, whether they were given to you prior to your marriage or after you took your vows -- unless, of course, they were a gift to you together with your spouse. Also know that there are steps you can take to make sure there is no confusion when it comes time to divide property with your ex.

As you separate, the first thing you want to do is to make a written "log", listing all of the family heirlooms you owned before your marriage. Next, ask someone to meet you at your home and either photograph these items or videotape them in this witness' presence. Your next step is to remove the items from your residence and take them to a place where they are securely stored. For instance, you may want to take them to your mother's or another relative's home.

It's also important for you to have some documentation from a relative stating that these items were passed on to you along with the exact date they were given to you. If there seems to be a dispute with your ex over who owns these items, see if you can get an immediate court order to protect these treasured assets by asking the court to allow you to take them from the home and to a safe place. Do not put them in storage where they may get damaged, and do not give them to a mutual friend of you and your ex for safekeeping.


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Q: What is the difference between a contested divorce and uncontested divorce?

If a divorce is contested, it means that the parties are unable to agree on some aspect of the case and that the respondent in the action has filed a response to the petition for divorce to contest it.

Issues that must be resolved prior to the court granting a divorce are child custody, child support, spousal maintenance, division of property and debts. If an agreement cannot be reached by both parties, the case will go to a trial before a judge who will render a decision on the unresolved issues. In Arizona there are no juries in a divorce case.

 


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Q: Can a participant to a divorce be ordered to pay the opposing party's legal expenses?

In Arizona, the law does provide for an award of attorneys' fees and costs under some circumstances.

In deciding whether an attorney's fees award is appropriate, the court considers both parties' financial resources, including each party's relative ability to pay their own fees and expenses.

The general purpose behind an award of fees and costs is to allow the party with the lessor financial means an equal opportunity to present their case. It may also be used as a sanction depending on the positions taken by a party throughout the litigation.


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Q: What is a premarital or prenuptial Agreement?

A premarital (prenuptial) agreement is an agreement entered into by the parties before they get married. If the necessary requirements for such an agreement are met, a premarital agreement will be upheld and followed by the Court in a divorce or if one spouse dies.

To be valid, a prenuptial agreement must be in writing and signed by both parties before marriage. The agreement must also be voluntary, and not unconscionable. Each party must disclose to the other all of his or her property and financial obligations or waive that disclosure. Generally, each person must have an attorney represent them in the signing of an agreement so that the agreement will be determined to have been entered into voluntarily.

A prenuptial agreement may waive (give up) community property rights that would otherwise exist after the marriage of the parties. A prenuptial agreement may also waive or eliminate the right to spousal maintenance in the event of a divorce. Such an agreement may give up rights a spouse would have in the event of the death of the other spouse.


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Q: Can a spouse collect alimony in Arizona?

n Arizona, alimony is called "spousal maintenance". Spousal maintenance may be ordered if the requirements of the statute are met. The applicable statute is Arizona Revised Statutes §25-319.

To receive spousal maintenance, a person must show that he or she meets one of the following requirements: (1) Lacks sufficient property to meet his or her reasonable needs; (2) Is unable to support himself or herself through appropriate employment, or has custody of a child whose age and condition precludes outside employment, or lacks sufficient earning ability to support himself or herself; (3) Contributed to the educational opportunities of the other spouse; or (4) Had a marriage of long duration and is of an age which may preclude the possibility of gaining adequate employment to support himself or herself.

If one of these requirements is met, then the Court considers a list of eleven different factors, which do not include marital misconduct.

The factors include the length of the marriage, the age and earning ability of each spouse, the need to contribute to the education of children, the standard of living during the marriage, the extent to which either spouse contributed to the earning ability of the other or reduced his or her own income or career opportunities, the financial resources of each party, the time necessary to obtain education or training to become employable, and excessive expenditures or destruction of community property.

The monthly amount and length of time for payment of spousal maintenance is based on these factors. The judge considers the length of time that the spouse receiving the spousal maintenance will need to become employable and/or self-supporting, if this is possible.


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Q: What is a covenant marriage and how does it affect divorce?

A covenant marriage is a marriage in which the parties agree, prior to marriage, that the marriage is for life, by making a written statement to this effect. Pre-marriage counseling is required for a covenant marriage, including information on the effect of covenant marriage and receipt of a brochure from the Arizona Supreme Court. An affidavit must be filed with the marriage license that the parties have received pre-marriage counseling, along with the signed statement of the parties to the marriage declaring the marriage to be a covenant marriage. A regular marriage can be converted into a covenant marriage by filing a declaration and a copy of their marriage certificate.

A covenant marriage requires grounds to be met before the dissolution of the marriage (or legal separation) may be granted. The grounds include: adultery; commission of a felony with a sentence of imprisonment or death; abandonment for at least one year with a refusal to return; physical or sexual abuse of the spouse, a child or relative living in the marital residence; domestic violence; emotional abuse; living separate and apart for 2 years before filing; living separate and apart for one year after a decree of legal separation has been entered; or abuse of alcohol or drugs. A dissolution of a covenant marriage may also be granted if both parties agree to a dissolution of the marriage.

After a petition for legal separation or dissolution of marriage of a covenant marriage has been filed, the judge may enter temporary orders for the support of the parties, the children, and relating to property, as it could in any dissolution of marriage or legal separation case.


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Q: What is community property? What are community debts?

Community property is property acquired by either spouse during the marriage, except by gift, inheritance or as income from property owned prior to the marriage.

In a dissolution of marriage, the community and jointly owned property is divided "equitably" between the parties. Generally equitably is defined as equally. Community property may be waived by a pre-marital agreement.

Separate property is property owned before the marriage, inheritances, gifts, and income from separate property. In a dissolution of a marriage, each party is awarded his or her separate property.

Debts incurred during the marriage are also generally community debts, even if only one of the spouses signed for the debt. The exceptions are debts incurred for the purchase of real estate, leases and guarantees on debts which must be signed for by both spouses. Community debts are the obligation of both of the spouses and both are liable for them in the event of a dissolution of marriage. The judge or the parties can allocate responsibility for payment of the community debts in a dissolution of marriage decree. However, the other spouse may still be liable to the creditor for the debt if it is not paid, as a contract liability.

 


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Q: What are the grounds required for obtaining a divorce in Arizona?

The only ground for obtaining a divorce in Arizona is that the marriage is irretrievably broken and cannot be saved. The popular term is "no-fault" divorce. If the marriage is a covenant marriage, grounds for a divorce may be required.


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