Family Law Blog

Post-divorce school?

January 2, 2013

Filed under: Uncategorized — Burt & Feldman @ 4:38 pm

From the New York Times:

Cleansing the Toxins of Divorce

In Santa Monica, Calif., a land that reveres both self-reflection and serious rehab, helping people to view divorce as a good thing.    For full article, cut & paste the link: http://nyti.ms/UtrgBJ

 

 

Family Court Wizard

December 3, 2012

There are lots of online programs for divorced parents to use to ease communication, but the one that is getting the best reviews and is the most comprehensive is “Our Family Wizard.”   If a client has difficulty communicating with other parent,  Our Family Wizard is phenomenal in aiding communication and providing a reliable record, which can be used in later Court proceedings, if necessary.  The program has the typical online calendar, but it can also be used for email , tracking who said what when (in a clean format, instead of 20 page string emails), text tracking, and third parties can be given permission to review the parents communication and calendars – permission must be given by both parents.  The FCW can facilitate  expense reimbursements; online payments can be made by the owing parent,  and the FCW has private or shared journaling capabilities.   I think  it’s worth taking a look to see if use of Our Family Wizard can help make your dealings with the other parent easier.  And, of course, there is an Android and iPhone app.

Mediation

August 19, 2012

Filed under: Uncategorized — Burt & Feldman @ 12:50 pm

Another post about mediation, probably becauseI am so enamored of it.  In Maricopa County, divorcing parties are requried to attend what is called “ADR” or Alternative Dispute Resolution, before they go to a final trial.  This is a free service offered by the Court.  The problem with the free ADR offered by the Court is that the mediator is only required to set the ADR for three hours.  Unfortunately, most cases cannot be resolved in that short of a period of time.  After years and years of mediation (about twenty to be exact), I find that the momentum to settle builds after the 4th or 5th hour.  The first hours are usually spent exploring issues and airing grievances; once the parties feel they have been “heard,” they are much more likely to reach a mediated agreement.  Divorce is an emotional process that requires time, even in mediation.  What I have been doing lately is asking the free ADR mediator appointed in a specific case to “go on the clock” at the conclusion of the free mediation period, if we are making progress.  My clients save money, they have received the first hours of mediation for free, and they get the time needed to fully settle their case.

What to Expect When It Comes To Spousal Maintenance

January 6, 2011

by Elizabeth Feldman

Spousal maintenance, or what use to be called “alimony,” is one of the hottest topics in family law these days.  Often one of the first concerns a spouse has when considering a divorce is whether they will receive or pay spousal maintenance and why; how much they will have to pay or receive, and for how long.  Unfortunately, there is no easy answer to this question, and there is no quick calculation.

When it comes to spousal maintenance there are very few hard and fast rules, but there are a few things to consider.  If you are considering (or going through) a divorce you may want to talk to your lawyer about are the following:

  • Do you and your spouse have a prenuptial agreement? If so, does it cover spousal maintenance? Having a prenuptial agreement may very well control whether spousal maintenance is even an option.
  • Is temporary spousal maintenance an issue while your divorce is pending, and what should it cover?
  • What effect does the length of your marriage have on spousal maintenance? The longer the duration of the marriage the more chance there is that spousal maintenance will be an issue—but there is no magic amount of time which will automatically entitle one to maintenance.
  • Is it possible for you (or your spouse) to work after the separation? This is one of the most important questions when considering maintenance. Whether one or both of the parties are working, what they could earn if they were working, whether they are working at their full potential or are underemployed, whether they need training or schooling in order to work, what they can earn at a job, what their plan is, and how it would affect all the parties, etc.  These are all issues that a court considers when granting or denying spousal maintenance.
  • Is there a calculation that factors in to your spousal maintenance?  If so, what role does it play?
  • If children are involved is their care factored in?
  • Does it make any difference if you or your spouse was a lousy partner?
  • What is the importance of you or your spouse’s expenses in calculating maintenance?
  • What happens if you or your spouse earns more or less after you get divorced, and how does it affect spousal maintenance?
  • Are there any tax consequences with maintenance? Generally the person paying receives a deduction and the person receiving must pay taxes on that income.

There may not be any simple answers, but considering the questions above can give you a much better idea of what to expect.

In considering the duration of a maintenance order, a court will generally consider how long the parties have been married, but also their ages and circumstances.  If a court makes an award of spousal maintenance, the award is usually modifiable and either party can return to court and ask for more or less money, or more or less time.  If, however, the parties reach an agreement on maintenance, they may agree that it is non-modifiable and cannot be changed.

Always remember that there are no set calculations for spousal maintenance.  This is an issue where a Court simply has to consider all of the factors and circumstances of each case individually before making a decision.

The Time and Place for No Fault Divorce

November 30, 2010

by Elizabeth Feldman

If you are thinking about getting a divorce (or separation), or are in the midst of divorce litigation, you will hear (maybe all too often) that Arizona is a “no fault” state.   What this means is that neither party has to prove that the other party is “at fault” in order to get a divorce.  In other words, if you or your partner wants a divorce, you get divorced.  It doesn’t matter if he/she is a dirty, rotten, mean, cheating scoundrel.  And usually a court won’t even be interested in any of the juicier details.

Almost every state in the country is now no-fault.  Prior to the change, most states required that one party provide evidence of the other spouse’s wrongdoing (for example, adultery or cruelty) for a divorce to be granted, even if both parties wanted out.  New York is the final remaining state and is now considering no-fault.

There are many good points and bad points to a “no fault” divorce.  These include the fact that you don’t have to re-live the pain of your marriage in order to prove that you “deserve” one, and you can procure your divorce more quickly and easily than if you had to show fault.  However there are other times when “fault” can be relevant.  For example, if your spouse is cheating and spending community funds (using the joint bank account or credit card) to fund his/her dalliances, it could signal that he/she is “wasting” community funds and you may have a right to be compensated.  Also, if you share children, and one spouse has problems with drugs or alcohol then that spouse may be unfit for custody.

In other words, although we live in a “no fault” state, there may be times when you and your attorney should push the issue of fault.  A Judge may not be eager to hear the grim details of why you are getting divorced, but it may be very relevant to other, more important issues surrounding your separation such as property division or parenting.  As such, in these cases the issue of fault simply cannot be ignored.

Mediation, is it for you?

May 13, 2010

Image by Takashi Tomooka

Image by Takashi Tomooka

written by Sandra Burt

The answer to the title question is an emphatic YES!

Mediating your divorce or even problems you are having after a divorce is a great and less expensive way to resolve disputes. If you have the right type of mediation, then mediating your dispute does not mean you will be giving up any rights you have or compromising on your end result.

There are several types of divorce and post-divorce mediation.  There is the mediation that simply helps you and your spouse reach an agreement that is fair but that is not necessarily based on what a “court would do” if the case were litigated.  Then there is mediation that facilitates settlement using “what the court would likely do” as a template for creating an agreement.  I personally believe in and use the second method because the end result of the mediation is an agreement that is similar to what the parties could be expected to achieve in court, with compromises along the way to save time, money and relationships.

When parties follow a template for mediation that is grounded in Arizona law, they know they are saving money without losing result.  A good lawyer mediator can give you an idea of what they believe a court would do in your situation, and can hire experts (accounts, custody experts, business evaluation experts) along the way to prepare reports for use in mediation.  These are the same types of reports that are prepared when you have a case that is being litigated.   The end result is a mediated agreement grounded in Arizona law.

When you choose to try mediation rather than a combative court battle you can go home at night knowing you’ve used reason and compromise to reach an agreement that is grounded in Arizona law and is the same or close to what you would have achieved in court—but for many thousands of dollars less than you would spend in court!

Good People in Bad Times? Good People At Their Worst!

March 12, 2010

"The Incredible Hulk" from the CBS TV Series

"The Incredible Hulk" from the CBS TV Series

In family law we often refer to the two parties as “good people at their worst”. Divorce is one of the most emotional of court proceedings.  It’s not just about money or property, it is about love gone awry (or gone away), and about the loss of your hopes and dreams for the future.  One of the easiest ways to deal with this is to turn your spouse into a bad guy: to remember only the bad times you’ve had with your spouse and his or her family,  to think only about the bad  characteristics and habits – all of the aggravating and annoying things you’ve endured  throughout your marriage.

This is normal, and your spouse is likely going through the same emotional turmoil as yourself; but this kind of thinking can be counter-productive to the divorce process, leading you both to be rigid and unwilling to compromise. In order to smooth the way for yourselves and for your children, consider these few things when you go through the process:

1.Your  history with your spouse

  • What was it that brought the two of you together in the first place?
  • Take stock of what characteristics led you to marry in the first place.  Were they ones to value?  Do they contribute to making your spouse a good parent?

2. Your spouse’s current character and values

  • How would you describe your spouse’s character now?
  • Have you seen a change since you were married?
  • What about his or her core values?
  • How do your character and values compare to your spouse’s; generally and as parents?

3. Conflicts between  you and your spouse

  • How do you and your spouse handle conflicts now?
  • How do you react to each other now?
  • Do you know how to push each others buttons?
  • Do you know when not to?
  • Do you make the efforts not to?

4. Your expectations: now and for the future.  How do you anticipate your spouse reacting to…

  • Following through with a court order?
  • Following through with a negotiated agreement?
  • Parenting and being actively involved with the children?
  • Remaining current on the child support or paying child related expenses?

Unless there are reasons to doubt your children’s safety, make the effort to not feel threatened as a parent because of the break-up of your marriage. You are leaving your roles as husband and wife.  And if there are no children, that should be the end of it.  You may mourn the end of the relationship, and you may find it hard to move on, but it will happen.

But if there are children, your lives will be interconnected at least until the children are grown and probably even longer as the family grows with grandchildren.  It is in their best interests that neither of you leave your roles as their parents-so long as there are no safety issues involved.  Your children’s best interests are paramount, and are a court’s prime directive
in determining children’s issues as between mother and father.

Your children need their mom and dad.  Find a way to work that out without getting in each other’s way.  Try to work together, not at odds.  Kids learn early how to manipulate mom and dad.  That’s hard enough if all of you live in one home, but impossible in a separation.  Furthermore, kids need consistency.  If you can’t accomplish that then you need to at least make it clear that dad has his rules and mom has hers, and as long as the kids are safe with each set of rules, then they must respect the rules in each home-and so will mom and dad.

The bottom line is:  What’s in your children’s best interests?  Do you trust your spouse as a parent?  Are your children safe?

Many good people may be at their worst now, during the divorce.  But their core character and values don’t really change. When the dust settles, so will you and your spouse.  In the  meantime, resist the temptation to tear at your own and your children’s emotions because of issues with your ex.

Why Do I Have To Pay Child Support Through The Clearinghouse?

February 11, 2010

By Sandra Burt

My clients often ask me why they have to pay through the clearinghouse. “Isn’t that an extra step between the money and the children?”  As you may or may not know, all child support (and sometimes spousal maintenance) payments go through the Department of Economic Security Clearinghouse.

While divorcing parties can choose to have direct pay, most opt for the payment to be made through the clearinghouse for record keeping purposes.  The clearinghouse will track all monies in and out for about $2.25 a month.  The clearinghouse is not necessarily a policing service; they will not they do not “contact” a party if their payment is late, but they do provide their records if a party has to take the paying parent back to court for nonpayment.

Some parties express as concern about a “delay factor” with the clearinghouse, but there is really no delay.  The clearinghouse pays the payee as soon as the money is received from the payor, usually by direct deposit into a bank account.  In fact, the clearinghouse disperses funds so fast that they can and do sometimes get stuck with bounced checks on which the payor would obviously have to make good.

There will certainly be concerns whenever you are dealing with something as sensitive as money, and especially when you feel as if you’re handing control of that money over to a third party; but the Department of Economic Security Clearinghouse is a trustworthy middleman, and in many cases necessary.  With no delay in the transfer of money and close to perfect recordkeeping, the clearing house can be an invaluable ally.

What to Do About Holiday Nightmares

December 4, 2009

Filed under: Current Events,Custody — Tags: , , , , , — Burt & Feldman @ 1:14 pm

Torn holidays

I wrote earlier this week about how the holidays are a time of warmth, family and togetherness… but that warmth, family and togetherness is not always so easy to come by.  Halloween, Thanksgiving, Hanukkah, Kwanzaa and the winter break including Christmas and the New Year all seem to flow together and create high levels of stress.  It is especially acute when you have children who split holidays between mom and dad.  It is a busy time for Family lawyers.

Everyone wants perfect holidays with their children, where everyone is happy and everyone gets along.  But the ideal holiday may be an unrealistic expectation, even for the intact happy family.

When you are divorced, separated or in the process of either of these, it is best to lower your expectations and prepare to be flexible, otherwise your anxiety levels during this time reach the breaking point.  Your best hope may be to just survive the holidays without a major disaster!

I can vividly remember the feelings of panic when my ex took our daughter for a “couple hours” on Christmas day to celebrate with him after the presents were opened at my home, and she didn’t return for five or more hours with no calls to let me know she was safe, why she was late, or when she could be expected.

I also remember Halloween stress each year when she was supposed to spend the evening with me.  This was one of my favorite holidays because we lived in a historic neighborhood that had hundreds of trick-or-treaters (our last year there we counted 600 coming to the house).  When she was young, I took her around the neighborhood early to trick or treat so that we could be home to enjoy seeing all the kids and families coming to our house.  Her Dad wanted to take her to his neighborhood too, so again when it was supposed to be for a short time I was often left worrying for hours about where she was and whether she was alright.  But year after year I agreed to this because I wanted her to have memories of a happy time.  Sadly, in my opinion, she missed out on the unique experience of our neighborhood activity.

Your goal for the holidays should be for your children to have positive memories of their childhood holidays.  And sometimes this may mean that you will experience more stress, especially when sharing or splitting time with the other parent who, you believe, is not reliable or respectful of your time or anxieties.

Schedules

Your parenting schedule for the holidays may follow the Model Parenting Time Plans which has you and your ex-spouse alternating holidays.  But if you have special needs or circumstances you may decide to customize the schedule.  Whether sharing the holidays or some other division of time, you will have some holidays or a portion of a holiday alone without your child and you may experience stress and loneliness.

Whatever schedule you have you can be sure that there will come a time when that schedule will not fit with the schedule or traditions of one of you or your extended families.

The key in these situations is to remain flexible and consider exchanging years with your ex-spouse if one of your families is having a big event in a particular year that does not fall on the year the children are to be with that family.  Or make adjustments in the schedule so that your children can celebrate with both families.  Worse than celebrating without your children is to later find out that the holidays are stressful for your children because they are being pulled in opposite directions or end up feeling guilty about having a good time without one or the other parent.

We should put ourselves in the back seat while we focus on the prime mandate of family law – the best interests of the children.

Whatever stresses you feel and whatever issues you have with your ex-spouse, it is important to remember that your children are in the middle.  They pick up on the emotions and anxieties of both of you.  Your reactions to any particular situation may cause negative feelings for your kids. It can be helpful to take a step back and think about how important your position will be five years from now.

This is not to say that you need always give in to avoid conflict.  If you honestly feel that your position has merit or your ex’s position is frivolous or a power play and not in your children’s long term best interests, or that the effect on them will not be traumatic or otherwise outweigh the long-term benefits, then by all means stand firm.  But first take a deep breath and analyze the issue from your child’s perspective.

Here’s hoping that your holidays will be happy experiences for you and your children!

Giving Thanks

December 1, 2009

Filed under: Personal — Tags: , , , , — Burt & Feldman @ 7:06 am

BBF Firm Photo

By Sandy Bregman

During this Thanksgiving holiday, as I took the time to slow down, spend time with my wonderful family, and give thanks for those people and things for which I am most grateful, one of the things that was foremost in my mind was you–my clients, colleagues, and loyal readers.  I would like to take this opportunity to thank all of you who read this blog, come into our office, and support us in so many different ways for the time you have spent with us, the trust you have put in us, and the role you have let our firm play in your lives. It gives us great pleasure to know that we are helping families—young or old, large or small—deal with some of the most difficult and emotional parts of their lives.

The holiday season is a time of warmth, family, and togetherness.  It is a time to be with the people we love most, a time for reminiscing, telling stories, reconnecting, and showing those closest to us just how important they are. We think of our clients and readers as part of our firm family, and we appreciate you letting us be a part of yours.

I hope you had a warm and happy Thanksgiving, and wish you all the delights of a wonderful holiday season!

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