Now is the Winter of Our Discontent

Now is the winter of our discontent was a line penned by Shakespeare and spoken by Richard III to open the play of the same name. Though he was speaking of his good fortune, for many married couples winter is the season of their marital discontent and the time to file for a divorce. The number of divorce filings is normally high from January to March.

Why is this supposedly happy holiday period the launching pad for many divorces?  Spouses may decide to have one last holiday season together or the stress of a bad relationship along with being surrounded by family members during the holidays may be the straw breaking the camel’s back.  If children are involved, delaying the filing to January allows children to have one last Christmas with married parents. January is the busiest month for bankruptcy filings, evidence of the financial problems that frequently break up couples. In addition, an unappreciated spouse suffering through another Valentine’s Day may have decided he or she has had enough.
Filing after New Year’s Day can have some financial benefits.  For example, one spouse may be due an end-of-the-year bonus from work, money the other spouse can add to the overall financial picture.  Also, for tax purposes the couple’s finances would be fixed for the entire preceding 12 months. This makes the division of assets much easier to calculate once the divorce process begins.

February is usually the high point in divorce filings, according to CNN. They report a study of divorce filings in New York, Illinois and California which found that February is the busiest month of the year for divorce filings as numbers are usually up about 18% from the average month at this time each year. 

A divorce may come as a surprise to a spouse, no matter when it’s filed. If that happens to you: 

• Control your emotions and maintain an even temper;
• Don’t blow up in a rage and say or do something you will regret;
• Stay cool, calm and collected; and 
• Start making your own divorce preparations.

If you are not the one in control, or do not have a good understanding, of your family’s finances, start obtaining files and information that can give you a grip on your family’s money matters. 

If you live in the Scottsdale, Arizona, area and have decided that 2014 is the last year you want to be married, the attorneys at Nirenstein Garnice can explain divorce law and the process involved in dissolving your marriage. Call us today at (480) 351-4804 or email us for a free, confidential consultation.

When Is A Non-Modifiable Divorce Modifiable? When One of the Parties Lies

In Arizona, the parties to a divorce can agree that, in the future, a dissolution decree cannot be modified.  By statute, a court cannot alter a separation agreement that prohibits future modifications.  But there is an exception—when one of the parties lies or withholds information from the court.

Nancy S. McNeil petitioned husband Robert Hoskyns for dissolution of marriage in 2005, and he agreed to pay her $5000 monthly in temporary child and spousal support.  Because of a mistake involving automatic bank transfers, however, he began unwittingly paying her twice that amount. McNeil knew she was being overpaid, but never told her husband.

In 2007, at the trial for their marital dissolution, the parties agreed that Hoskyns would continue to pay $5000 per month for six years, an amount that could not be modified or terminated.  The court specifically asked the parties if there were any payments outstanding.  McNeil said he still owed $2500.  His wife said nothing about the fact that, because of duplicate payments, he had actually overpaid $85,000.  The overpayments continued, but McNeil still did not tell her husband or the court.

Two years later, McNeil filed a Petition to Enforce Spousal Maintenance claiming that her husband owed her $14,000.  At the time, she knew he had paid her far more than he owed.  A court-ordered accounting finally revealed the overpayment, and Hoskyns asked for relief.  His wife, however, then claimed he owed $49,000 in arrears.  She also threatened to try to have his dentist’s license revoked and filed a petition for contempt that resulted in her husband being briefly jailed.

After a series of hearings, the court decided that McNeil had committed fraud on the court on three occasions.  The court vacated all previous orders requiring Hoskyns to pay arrears, terminated his obligation to pay further support, and fined his ex-wife $5000 for “repeated fraud and misrepresentations.”  

She appealed the termination of support, claiming that, by statute, the court could not change a decree that was non-modifiable and non-terminable. The Arizona Court of Appeals upheld the lower court’s order, however, saying that the statute did not apply when there was fraud on the court. 

In divorce, it is common for the parties seek maximum advantage in spousal and child support arrangements.  That strategy can backfire, however, if one of the parties is less than honest with the court.  It can even lead to the modification or termination of payments.  If you are contemplating dissolution of marriage or if you have already divorced and are still in conflict with your ex, the experienced matrimonial law attorneys at Nirenstein Garnice can help you find a just solution to your problems. Based in Scottsdale, Arizona, we have years of experience handling all types of divorce and domestic relations issues, including spousal support and child custody disputes.  Contact us today at (480)351-4804 for a confidential consultation. 

Arizona Cardinal’s Player Drops Ball in Paternity Suit

Football and fatherhood need not be at odds.  Yet in the wake of Arizona Cardinals running back Jonathan Dwyer’s domestic violence case, another Arizona player is involved in a family law dispute.  After fumbling a court appearance in a paternity suit, Arizona free safety, Tyrann Mathieu, is appealing a ruling that he was the father of a child born in 2013 and owes thousands in child support.

Mathieu, nicknamed “Honey Badger” because of his tenacious defensive play on the field, didn’t show up in court to defend against the paternity claims.  His absence enabled the child’s mother, Megan Edwards, to win a default judgment.  Mathieu is appealing, claiming he did not receive proper notice of the paternity suit, which was brought in New Orleans.  A three-judge panel of the 4th Circuit Court of Appeals will hear the case.

Edwards’ attorney claims that Mathieu was served with papers twice by mail at the Arizona Cardinals’ business address, a post office box in Arizona.  Mathieu’s attorneys argue that this was not proper service.

According to the allegations in the case, Edwards had a six-year monogamous relationship with Mathieu that ended four months before their son was born.  Edwards says a 2014 DNA test proves that Mathieu has 99.99999 percent likelihood of being her child’s father.  She testified that Mathieu acknowledged fathering the child to family, friends, and colleagues, in person and in social media.  Mathieu has also paid a number of visits to the child.

Meanwhile, Mathieu appears to have a fathered another child with the stepdaughter of Arizona Cardinals’ defensive coordinator Todd Bowles.

Edwards says she has spent $3000 on child care for her son, while Mathieu, who has a $3 million contract, provided $1500 on Thanksgiving 2013 and an additional $800 on their son’s birthday.

A New Orleans judge has decreed that Mathieu is the biological father and has ordered him to pay $22,200 in back child support, plus $2,598 in day-care expenses retroactive to the date the suit was filed.  Going forward, she ordered Mathieu to pay $3,700 in monthly child support and $433 in monthly day-care expenses, purchase health insurance covering the child, and buy a life insurance policy with the child as a beneficiary.  Some of the financial support is to be paid into an educational trust fund for the child.  The judge also ordered Edwards to pay for attorney’s fees, court costs, and DNA testing.  

Edwards says she remains open to Mathieu visiting and having a relationship with his son.

Paternity battles can be costly and damaging to the reputations of all parties, and missteps, missed court dates, or the wrong strategy, can make matters worse.  Whichever side of a paternity or child support case you find yourself on, having qualified counsel is essential.  The Scottsdale, Arizona attorneys at Nirenstein Garnice have helped people involved in all forms of domestic relations and family law disputes. Call us today at (480) 351-4804 or email us for a free, confidential consultation.

Protecting Your Children from Parental Kidnapping

Deciding how to best care for your children after a divorce or break-up is a difficult matter.  Things like child custody and support are not often easily agreed upon, especially if you and your former significant other are on bad terms. The court might need to get involved to make a decision in such a dispute.  Unfortunately, that might not be the end of the matter.  You might be concerned that your ex is going to take your kids despite a court decision.  This is a legitimate concern in some situations and happens regularly in the State of Arizona and across the country.

Recently, a 21 year old Phoenix woman took off with her 2 year old son.  Isabella Guervara lost custody of her son to her ex after the judge became worried about the child’s safety.  His father was awarded full custody but Guervara refused to abide by the order.  She would not turn her son over to the father and at this point cannot be found.  The Phoenix police are looking for her and she is wanted on charges of custodial interference.

So, what should you do if you are concerned that your child’s other parent is going to abduct them in disregard of your court ordered custody?  It is recommended that you be proactive.  If you are worried about parental kidnapping, compile all of the facts and express your concerns to the court or to your lawyer so that they can address them.  You can request supervised visitation under certain circumstances, and if there is a valid threat to you or your child, you may be able to get a restraining order to stop contact with your ex altogether.  If your ex does abduct your child, Federal and Arizona law is on your side.  This is a crime which can be addressed federally if the child is brought out of state and you should call the police immediately at the first sign your child has been abducted.  Once your child is safely returned to your care, you should work with a family law attorney to change the custody agreement to ensure this never happens again.

If you are a parent and are worried that your ex may attempt to abduct your child, do not wait.  Work with an experienced family law attorney to protect your child from the initiation of custody proceedings.  Contact the Scottsdale, Arizona family law attorneys at Nirenstein Garnice by calling (480)351-4804 for a consultation today.

Surrogate Causing Concern for Arizona Couple

For couples who have fertility issues, a surrogacy arrangement has become a valid option in the United States.  A surrogate carries the child for the couple or individual who cannot.  This person can have a biological relationship to the baby they are carrying, through the donation of an egg.  If the sperm and egg are donated by other people, usually the prospective parents, the surrogate is not genetically related to the child in any sense. Both types of surrogacy can create serious legal issues pertaining to child custody and parental rights.  

Arizona couple, Alan and Alicia Lundgren, wanted a child together after being married, but, Alicia was unable to carry a pregnancy.  A friend of Alicia’s mentioned that she was thinking about becoming a surrogate and the two agreed that she would act in this capacity for the Lundgren’s.  Alicia, Alan and the friend were cleared physically and psychologically by a fertility clinic and were then advised to consult with an attorney.  They entered into a gestational carrier agreement and the couples sperm and egg were used to impregnate the friend.  As part of the friend’s compensation, they allowed her to live in their home, paid for her medical insurance and costs as well as gave her a credit card for personal use.  The Lundgren’s claim that they treated the friend like a member of the family in every sense.

A few months into the pregnancy, the friend began acting strange in relation to medical decisions for her and the baby.  After she was confronted about the strange behavior by the Lundgren’s, she left the home.  They spoke to her for a while and tried to get her to sign an agreement terminating her parental rights, which she refused to do. Then, contact ceased completely. Now, they do not even know where she is or where she will have the baby when the time comes.  A news organization contacted the friend and she stated that she intends to give the baby to the Lundgren’s when it is born but chose to end her relationship with them for other reasons.

Unfortunately, the Lundgren’s do not have a lot of options at this point. Surrogacy agreements are unenforceable in the State of Arizona, even though there are guidelines for them in place.  If a parent has no biological ties to the child, he or she has no legal recourse.  If the parent does have a biological relationship with the child, as in this case, he or she can go to court to enforce their parental rights.  There is no guarantee as to what the court will decide in this type of action.  

If you have a family law issue that you would like to discuss, call the Scottsdale, Arizona area attorneys at Nirenstein Garnice at (480)351-4804 for a consultation today.

Victim of Statutory Rape Owes Child Support

The State of Arizona currently has over 150,000 child support cases pending with the Department of Economic Security.  Many different scenarios can result in a parent’s liability for child support.  Even a parent that conceived a child when they themselves were underage and that was the victim of statutory rape can be responsible for payment.    In Arizona, the state is punishing the victim of statutory rape by holding him accountable for child support payments dating back to when he was a child.  

At 14 years old, Nick Olivas had sex with a 20 year old woman. He claims that he was having a difficult time at home and that the woman took advantage of him.  He did not know that he was a victim of statutory rape at the time and therefore, never pressed charges.  Unbeknownst to Nick, a child resulted from the relations.  Eight years later, he was served with child support papers informing him of the child’s existence for the first time.  Out of fear, he ignored the papers and never went for a paternity test.  The state claimed that he owed over $15,000 in back due child support and eventually began collecting this money by garnishing his wage and assessing interest.

Nick has come to terms with the fact that he is a father and wants to be involved in the child’s life.  But, he does not agree with the states assessment of the child support he owes.  He claims that because he was a teenager when the child was conceived and did not know about her, that he should not be liable for back due payments.  He also argues that because he was a victim of statutory rape that this should mean something.  

Unfortunately for Nick, the courts in many states have disagreed in cases similar to his.  In Kansas and California, the courts have decided that men who were young boys at the time their child was conceived and who were the victims of statutory rape, are nonetheless liable for child support.  The main reason for this seems to be that it is more important to ensure that the child is taken care of and to collect the money that has been given out in public assistance than to protect the rights of the rape victim.  This is in essence making the statutory rape irrelevant.

In Arizona, the laws provide that a parent that was the victim of rape is responsible for child support unless the rapist was convicted of sexual assault.  Many believe that this is a double standard and that there would be uproar if female statutory rape victims were treated this way.  

If you have been served with a demand for child support or are involved in any family law matter call the Scottsdale, Arizona area attorneys Nirenstein Garnice  at (480)351-4804 for a consultation today.

Divorcing in Arizona? Now Is the Time to Start Assessing and Protecting Your Property

Most married couples are aware that marriage is more than an expression of love and commitment. Marriage is also a legal contract that can merge assets, combine debts and blur ownership rights for property that might otherwise be associated with just one of the two spouses. So, when a couple divorces, one or each spouse might have an uncomfortable feeling he or she may soon be only a partial owner of property they once may have had exclusive rights to.

Fortunately, Arizona law allows for both separate and community property within a marriage. This means that a divorcing spouse in our state may be able to retain most or all ownership of a specific property if the property is designated separate property (i.e. separate from the other spouse) because it was:

• Owned by him or her prior to the marriage or was acquired after separation;
• Inherited or received as a gift;
• Received in a lawsuit for compensation for pain and suffering; or
• Designated as separate property by a written marital agreement.

Protecting property rights during divorce via separate-property designation is especially important in Arizona because Arizona is one of just nine community property states as opposed to equitable distribution states. In equitable distribution states, even separate property may be divided unevenly (i.e. possibly to your advantage) based on various circumstances. In community property states like ours, though, all non-separate property is generally divided in half, even if one spouse has strong reason to believe it should not be.

If you are divorcing in Arizona and would like to retain as much property as possible following the completion of your divorce, contact a skilled divorce attorney at Nirenstein Garnice in Scottsdale for answers and qualified legal help. We can work to demonstrate that your house, land, investment fund, savings account, business or other property is designated as your separate property and that your full claim to property is not diluted due to issues such as property comingling. To contact us for a free consultation, call (480)351-4804.

Lawmaker’s Arizona Divorce Highlights Disclosure Risks

An unusual recent case highlights a risk that couples should be aware of when considering divorce—the disclosure of potentially embarrassing personal information.  During her divorce proceedings, State Legislator Michelle Ugenti claimed legislative privilege and attorney client privilege to prevent Verizon from handing over several months of text messages to her husband.  Her husband’s lawyer had attempted to subpoena the records, most likely to try demonstrating that Ugenti was having an affair.

Ugenti’s lawyers claimed that the texts were irrelevant under Arizona family law and that they were privileged communications.  The husband withdrew his request before a court could decide.

However the judge might have ruled, the case is a useful illustration of how damaging the discovery process can be during the dissolution of a marriage.  The parties may use any weapon they can find to gain leverage in negotiations or simply humiliate each other.

Arizona family law requires the parties to file a detailed “resolution statement” packed with information needed to terminate a marriage fairly.  They have to complete an Affidavit of Financial Information with proof of income, including tax returns and financial records related to wages and investments.  They have to document a wide variety of expenses, including medical, childcare, and education costs.  They also have to make full disclosure of assets and indebtedness.  All of these are minimum requirements in most cases.

Further, each party can submit “interrogatories” —written requests for information.  They can also submit a “request for production” of certain documents.  Or a “request for admission” — a statement which the receiving spouse must admit to, deny, or object to.  Some requests may be reasonable, but others may be an attempt to expose secrets and harass the other side.  A court may have to rule on whether a request is legitimate.

In an amicable divorce, the discovery process can be complex and daunting.  In a contested divorce, it is often a battleground.  In either case, the information uncovered can have a lasting impact on spousal maintenance, child custody and support, and division of marital property. 

Before moving forward with a petition for divorce, you should be fully prepared for the disclosures that will ensue.  An experienced family law attorney can guide you on how much information to provide, how much to seek, and how to handle probing interrogatories and requests.  We’ve provided family law help in Arizona for more than 24 years.  For answers to divorce, separation, and property distribution questions in the Scottsdale, Arizona area, call us at (480) 351-4804 or email us for a free, confidential consultation. 

Factors Considered in Arizona Child Custody Proceedings

Divorce is a complicated, long and expensive process that can involve many uncertainties.  For those people with children, when faced with a divorce, one concern might be which spouse will get custody.  In the State of Arizona, child custody is referred to as legal decision making and includes the right to make decisions relating to a child’s personal care, health care, education and all other non-emergency matters.  State law allows separating and divorcing parents to decide which parent will retain legal decision making and how parenting time will be divided.  If the couples cannot decide and the courts become involved, the courts will make the decision for them.  The courts do not just pick the parent they like the best.  They are obligated to consider many different factors when making their decision.

All legal decision making issues are decided according to the best interests of the child standard.  As part of this standard, the courts must consider certain factors relating to the child.  They must consider the relationship between the child and each parent.  They have to contemplate the current relationship, as well as the past and future relationships, between parent and child.  The courts must look at the interactions between the child and each parent, as well as siblings, if any exist.  The courts will also consider how well-adjusted the child is to home, school and the community they reside in.  If the child is old enough, they can consider the child’s wishes as well.

The courts will then turn their attention to the parents.  They will consider which parent is more likely to foster a relationship between the child and the non-custodial parent.  This factor is only used in cases where domestic violence and child abuse are not present.  Therefore, the courts must inquire as to whether domestic violence or child abuse was present within the family.  The courts then look to the parent’s behavior.  For example, did they delay litigation or run up costs in bad faith? Did they falsely accuse the other parent of child abuse? Have they engaged in coercion or duress to get the other parent to agree to the legal decision making agreement? Have they complied with the mandatory divorce education program provided by the court?

Arizona courts take all of the above factors into consideration when deciding which parent is best suited to care for the child subsequent to divorce.  Dealing with a child custody issue is not easy.  It is imperative that you have a qualified attorney to protect your rights.  If you are going through a divorce and have questions or concerns, call Arizona family law attorneys Nirenstein Garnice at (480)351-4804.  

Can You Be Liable for Your Dead Ex-Spouse’s Debts in Arizona?

When two people get married they usually accumulate a variety of assets and liabilities.  When two people get divorced, they have the opportunity to decide how their joint property will be distributed and who is responsible for what debts.  If they cannot or will not make these decisions together, the court will decide for them.    Arizona is a community property state meaning that absent an agreement between the parties, the law dictates that each spouse is entitled to an equal share of the assets and debts accumulated during the marriage.  Most people don’t realize that this includes debts.

If your ex-spouse agreed to be responsible for one of these joint debts and they passed away before the debt was satisfied, you may be held responsible.  How is this possible?  You assumed that you were completely covered by the agreement you entered into with your spouse.  Unfortunately, you are not.  This is because the creditor was not a party to that agreement.  No one made an agreement with the creditor to collect the debt from your ex-spouse alone.  The creditor still has the ability to go after anyone who may be responsible for the debt notwithstanding the agreement.

Worse yet is that if you find yourself in this situation you don’t have a lot of options.  You might not have any other choice than to pay the debt and make a claim against your ex-spouses estate.  If the estate has no money to distribute, you are out of luck.

Luckily you can avoid this situation with a little pre-planning.  Once it is determined who is responsible for what debts in your divorce proceeding, you should seek a novation or an accord and satisfaction for any you are not responsible for.  A novation or an accord and satisfaction will release you from responsibility for the debt. These arrangements should be sought at the time of the divorce.  

Contact the Arizona attorneys at Nirenstein & Garnice if you are having an issue with the debts of an ex-spouse or need advice on any other family law issue. Call us today at (480) 351-4804 or email us for a free, confidential consultation.