Family Law Blog

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.

Marriage, Divorce, and Wellness

November 20, 2009

Filed under: Health Care/Insurance,News and current events — Tags: , , , , — Burt & Feldman @ 9:38 am

heart puzzle

I recently read an interesting article on CBSNews.com claiming that divorce is bad for your health.  The article is based on the results of a study published in the Journal of Health and Social Behavior which found that divorced and widowed adults have 20% more chronic health conditions than married people.

This makes sense to me.  I’ve always heard that married people live longer healthier lives, a fact which is mentioned in the article.  I’ve also heard that pet owners live longer happier lives.  Contentment, happiness and good health go hand in hand.

So it makes sense that any traumatic life event has a negative effect on our mental or physical health.  But the article’s headline, “Divorce May Make You Sick”, seems misleading, because anxiety and strain can come from many quarters.  Whether trauma comes from an abusive relationship, a divorce, a death in the family, or violence of any kind—it is toxic to our health and well-being.  Stress always takes its toll.

Should we stay in a bad marriage just to avoid chronic health problems?  Of course not, it won’t work.  Stress is stress and trauma is trauma. Clinical psychologist Dr. Jeff Gardere agrees; “If you’re in a “toxic” relationship that involves physical or mental abuse or in a relationship where you just can’t get along, it’s best to get out of it because the health benefits of divorce are much better than staying in a bad situation.”

The article makes the suggestion that if you are contemplating divorce you may want to have your doctor on hand.  As preventive care, this may be overkill, but I like to think that my primary care physician is always available when needed, anyways.

And if you’re hoping that a quick remarriage will negate the ill-effects on your health caused by divorce you may be disappointed; the study suggests that remarriage won’t reverse the negative health impact for years.  But that shouldn’t stop you from taking the plunge a second time. “Go ahead and remarry,” says Dr. Gardere, “…you can get better in time.”

I think the lesson to be taken from this is that everyone should take measures to be proactive about physical and emotional health.  Do what you can to reduce trauma in your life.  Remove yourself from violent and abusive environments.  Get counseling if necessary.  Keep an active body and an active mind.  Maintain good nutrition, good friendships and good relationships.  And most of all keep a good attitude – bad things sometimes happen to good people, but it doesn’t mean your life is over.  Sometimes it means your life is just beginning.

How Long Does It Take to Finalize a Divorce and Why?

November 6, 2009

Filed under: Divorce Proceedings — Tags: , , , , — Burt & Feldman @ 7:33 am

bxp10437-03

By Sandra Burt

The statutory waiting period for a divorce in Arizona is sixty days, so when I tell clients that they should actually plan on a year to resolve their case the response is often confusion.  Why does it take so long to finalize a divorce?

In truth, the length of time it takes to resolve a case varies; but generally when attorneys are involved there is more complexity to the case and thus more things that need to be done to ensure the parties have a fair agreement.  During the course of the year the attorney and the client are very busy, they are spending that time actively readying the case and pursuing settlement; there is no idle time, everyone is working diligently to create a full picture of the marital financial situation and a full picture of what would be appropriate for the children.  Oftentimes other professionals are consulted as well, to help with some financial aspects of the case, or to address concerns regarding the children and what each parent believes is in their best interest.

I like to think of the family attorney as the head of the fish guiding the tail.  The goal is always to have a complete picture so when the parties are ready for mediation or a trial, all information regarding the children, finances, debts, and values are at the attorney’s fingertips.  Although it may take longer to prepare a case and the long process can be frustrating, in the end the process ensures that the parties and their children are protected.  It is better to spend the time during the initial part of the case gathering information than having to drag the process out even longer at a later date, trying to set aside a final Decree because things were rushed, poorly organized, or missed altogether.

Uh Oh, I Didn’t Expect That: How Medical Surprises Affect Us—Part 2: Health Insurance

October 30, 2009

by Sandy Bregman

Woman reading letter shocked

As I was saying in my last blog, all the debates about healthcare and insurance coverage for everyone these days remind me of some frightening issues I’ve faced concerning health and care and coverage.

In my last post I wrote about my experiences in Africa and the healthcare I received or might have received out of this country years ago versus the care my mother received on the last day of her life.  In this post I’d like to discuss what happens when you get sick and have no health insurance, and what legislators and news commentators are talking about when they say that “many people choose to go without health insurance”.

In addition to being a member of the Arizona Bar I have also been a member of the Oregon Bar.  When I joined the Oregon Bar I was able to obtain their Group insurance with Blue Cross Blue Shield, with good coverage for my family at a reasonable rate.  All went well for ten years or so until I received a notice that the Bar would stop carrying group insurance, but “not to worry” because policyholders would be able to transfer to a private policy at a comparable rate.  When I contacted the insurance carrier in Oregon I was told that they couldn’t help me because my primary practice was in Arizona.  The problem was that this all happened while I was in the hospital, and suddenly I was looking at possible financial ruin for my family.

I was in the middle of what turned out to be a two month hospital stay with three major surgeries, intensive care, continual tests, and the expectation of fourth surgery in the near future… And I wondered, would I still get those things when my insurance was cancelled?  I had great coverage when I went into the hospital.  Would the old policy cover the expenses as part of an ongoing condition and hospital stay until I got out?  Would I be in the hospital with no coverage at all?  Would I ever get insurance again?  Would I be able to afford the doctors, the medicines, the expected and the unexpected continuing medical costs?

An insurance agent we knew was able to get me a decent policy, but the cost was $2500.00 per month.  It was probably our largest monthly bill at the time.  That is a large amount even now, but 10 years ago it was outrageous!  But they accepted my condition as a covered event after the old insurance ran out, so we felt we had no choice.  To not take the policy would have meant we paid all medical bills out of pocket—and they were substantial.  We had co-pays and deductibles, but nothing compared to what the insurance ultimately would pay.  We would pay $30,000.00 a year just for the insurance until we could qualify for something better.  They still wouldn’t make a profit on me for a while.  How we would do it I had no idea.

My experience is very similar to the experiences of those going through a divorce. In a divorce the dependent spouse on the health insurance policy will not be able to remain on the policy.  The children may remain as dependents, but the ex-spouse must either convert to a Cobra policy or make other arrangements.  If you are that spouse and you don’t have access through your own employer or other group to obtain a policy in your own name, you may be looking at getting a Cobra policy.  This is intended to be a temporary stopgap solution when you lose access to a group policy.  But even Cobra is not a viable option for many people.  Those who can’t afford it will have to go without insurance.

In the debate over health care some will claim that these people “choose” not to take Cobra or to get health insurance.  But what choice do you have if outrageously expensive policies are forced on you by circumstances?  We all have expenses to be paid:  housing, car and gas, food, utilities, and children’s needs to mention only the most obvious.

Where does health insurance fit in the budget?  If you are healthy and have been in the past you may “choose” to pay for car insurance and gas to get to work every day rather than pay for health insurance, but it is a gambler’s game.  None of us can ever know when we—or our children—may need extensive health care.

Even if we were to vote for universal health insurance or healthcare in our country, there are a plethora of problems that will remain.  They are here now.  But we have to start somewhere and we have already taken so very long to get started.