Family Law Blog

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.

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.

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.


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!

Protecting Yourself From Danger: How to Get an Order of Protection

November 13, 2009

Filed under: Order of Protection — Tags: , , , , — Burt & Feldman @ 1:58 pm

lock and key

by Elizabeth Feldman

If you are a victim of domestic violence, you may need an Order of Protection (OOP).  An OOP may be issued before, during or after a divorce.  You must believe, and convince the Court, that there is a threat of violence, danger or harm to you from your spouse, significant other (or a few other enumerated relationships).

You must first decide where to request an OOP.  If you have not yet filed for divorce (or separation or paternity), you MAY be able to request that a Justice Court or City Court issue an OOP.  If you are in the midst of a divorce, you will need to file in Superior Court.  In any case, depending upon the timing, most OOPs eventually get transferred to Superior Court.

The process of getting an OOP is personal and involved. You will need to go to the courthouse and fill out the form.  You can bring a lawyer, but you will need to fill out the form and speak to the judge or commissioner.  The form will ask for specifics, including any evidence of any past threats, assaults, interference, harm, harassment, stalking, damage, trespass, etc., and/or any future potential threats.  The form will ask if you want anybody else included in the OOP, such as a child.  It is usually difficult to include other adult third parties, as they will need to get their own orders.  If you, however, believe that your child is in danger, you may ask the court to include him/her and you will need to state specific reasons.  Sometimes, it can be more difficult to include children.  The form will also ask if you want “exclusive use” of the residence, if you feel it necessary to preclude the defendant (your spouse, significant other, etc.) from returning to the house.  The request may also ask if you want some kind of contact with the defendant, such as phone, e-mail or text.  Often having some way of communicating, especially about children, such as e-mail, where there is a written record, can be helpful.  Finally, the request will ask if you believe the defendant possesses any weapons or guns.

Once the Judge (or commissioner) grants your OOP, you will need to have it served.  A lawyer can help with this process, or the court can tell you how to utilize law enforcement or a process server.  Remember, you CANNOT serve the order yourself.

Once the order is served, the defendant can request a hearing.  The courts usually set the hearing relatively quickly, usually within about a week.  You can bring a lawyer to the hearing.  At the hearing, you will have the “burden” of proving that the OOP should remain in place.  You will be sworn and testify as to the statements that you included in your request for the OOP.  You should be as specific as you can.  The defendant may or may not testify.  The Court may continue the OOP, modify it or dismiss it.

If you believe that you or your children are in danger you will want to take whatever legal steps available to protect yourself.  We can help you get the protection you need. Remember that an OOP is different than temporary orders. If you have questions about either of these, please contact our office.

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

November 6, 2009

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


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 1: Health Care

October 23, 2009

Filed under: News and current events,Personal — Tags: , , , , , , — Burt & Feldman @ 6:41 am

by Sandy Bregman

hospital bed

With all the debates about the President’s goal for universal healthcare coverage and the different opinions as to how we can accomplish that— or even if we should — I’m reminded of some very frightening issues I’ve faced regarding my own health care over the years.  Some of my experiences have been in American hospitals, and some have been in foreign hospitals.  Here is my story.

In the 1970’s I was in the Peace Corps in Sierra Leone, West Africa.  I lived in Kenema, the capitol of the Eastern District.  Other than by population standards it was a small town.

There was one government hospital and one private hospital/clinic, which was owned and run by Doctor Banya , a local man and good friend of ours, who had been educated in the West.  It was rare at that time for an African doctor to run his own hospital.  There was only one other private hospital in the country owned and run by an African doctor; neither doctor had been educated in his own country.

One morning I was alone in the house with Mohammed; a man who cleaned, shopped, cooked and lived at the house with us.  I had just finished breakfast when I started to shake and feel faint.  I called for Mohammed.  Because we had no transportation he went out looking for help.  The only vehicle nearby was a large noisy motorcycle owned by a neighbor who was loud and argumentative.  My impression of him had been that he was a big bruiser of a bully, but when Mohammed asked for help he was there immediately, helping Mohammed carry me to his bike.  I was now too sick to hold myself up.  The neighbor held me with one arm and used his other hand to steer the motorcycle.

At the hospital there was no “triage” and no waiting.  I was taken to a bed right away and given immediate and excellent care.  No one asked about payment—perhaps they simply thought the U.S. Government would take care of its own.  Nobody ever asked what was in it for them to help me, and never asked if I was worthy of their help.  They simply gave it willingly and gracefully. Without their quick actions I might have died.

The conditions in Africa were not easy: the weather was intensely hot and humid, and air conditioning was unheard of, the hospital itself was basic. But the care I received was excellent and pleasant; the facilities were kept spare, clean and well-ventilated with fans.  I was able to spend two weeks in the hospital bed recovering.

When the doctor worried that I may have contracted Lassa Fever, a new and fatal disease that had just been identified in a neighboring district he took action immediately. One day I awoke to find the doctor, a nun from the hospital in the neighboring district, and a doctor from Atlanta’s Disease Control Center surrounding my bed, asking questions to determine if I fit the profile.  As serious as it was I was relieved to find out that I only had a bad case of Malaria.

When I needed my blood tested at the government hospital, again my doctor was on top of the situation. He gave me a needle and told me to insist that it be used by the hospital – because they reused their needles on patients and I couldn’t be sure to get a new needle.

Compare this story to an experience I recently had here in the U.S.  My mother was sent to one of the city hospitals for tests on her heart.  We waited and waited, but several days later the tests had not yet been done.  By the time they finally were scheduled my mother had abdominal pain so severe she refused to have the tests or to see anyone.  The next morning we went to the hospital and found that she had been taken off her pain medicine, was hallucinating and in excruciating pain.  The nurse didn’t know why.  We asked to speak to the Doctor.  She put in a call.  We checked with her regularly and each time she called for the doctor again.  The doctor wasn’t in but his Physician’s Assistant was in the hospital and would come to see us.  My daughter saw the PA pass our room a few times but we could never find her down the hall.  She didn’t come in until about 3 P.M. with an apology and the comment that she had “more urgent” cases.  She agreed that it was unacceptable for Mom to have no pain medication and she would order some right away as well as a visit from the Pain Management Team.  Again we waited. When no medicines came we checked with the nurse and discovered that no medicine had ever been ordered.  The PA left it up to the Pain Management Team, who had not been told it was urgent, and who would come when they were ready.  They never came.

By 6pm my Dad, 81 and recovering from the flu, was worried about getting back to his home over an hour away.  It was March, getting dark, a blizzard was expected, and we could not stay at the hospital.  Eventually we took Dad home, but ended up driving back to the hospital at 11P.M, fighting the blizzard.  Mom died in the middle of the night.

I have a lot of feelings surrounding these events.  I feel guilty at times.  I feel angry and frustrated at the Doctor and his P.A.  I know they meant well and were doing their best, that the situation was a combination of bad moments, bad choices and tragic results.  Unfortunately in the last five years of my parents’ lives my family experienced many other upsetting experiences regarding their health care.

Now there is another aspect to my experience in Africa—my experience at the other hospital.  I remember a long building with a surrounding porch.  People lined the walls waiting to see doctors.  Some were mothers who had carried their sick babies and children on foot for miles to get medical help; many of whom would end up carrying their dead children miles home again to be buried.  Patients in beds filled the porch, overflowed into the corridors and down the stairs into the grass.

I realize that I was lucky to get the excellent care I did in Africa… but my mother was not so lucky right here in the United States.  Although I would not choose to get health care out of the United States, I know that that does not necessarily mean we have a good system.  We have good technical health care.  We have good people with good training.  But we have a serious breakdown in the system.

Is this broken system what we are willing to accept?  The bottom line should be the care of the patient, of the person; not rules or policies or other concerns. Our “Humanity” is in how we treat each other in our interactions, in the care we give face to face; it is not in our rules or policies or on something we list on a piece of  paper. When those rules and policies become more important than people, when they keep doctors from fulfilling that first and most sacred of oaths, “do no harm”; shouldn’t something be done?