Understanding Postnuptial Agreements in Arizona

by John Schill | Nov 18, 2020 | Family Law

Most people enter into marriage with the hopes that it is going to last. However, not every union is the same, and more often than not, a good marriage can end up in a divorce. With the rates of divorce being on the rise, signing a postnuptial agreement is becoming popular among married couples. Let’s have a look at what a postnuptial agreement is and whether you need one.

What Is a Postnuptial Agreement?

Marriage is a legal union of two individuals that is recognized by the law. Entering into this union allows spouses to share their assets. While the sharing of assets is a non-issue in a stable marriage, getting a divorce can get things complicated. One of the contentious issues during divorce proceedings is dividing assets. The discussion around money, properties, and other assets can see both sides fighting for what they believe they deserve. This is where the postnuptial agreement becomes useful. A detailed postnuptial agreement in Arizona is a legal contract created by a married couple after their wedding, which outlines how their assets and finances will be divided in the event of a separation or divorce. It may also detail how matters related to the marriage can be dealt with, making the divorce process simpler and faster.

How Does a Postnuptial Agreement Differ from a Prenuptial Agreement?

The difference between a postnuptial agreement and a prenuptial is the timing. While prenuptial agreements are signed before entering into a marriage, postnuptial pacts are made after the ceremony. A prenuptial agreement requires the two parties to have different attorneys, but they can use the same attorney when putting together a postnuptial pact. However, prenuptial agreements are more common among couples than postnuptial agreements.

What Are the Details Included in Postnuptial Agreements?

A postnuptial agreement must clearly outline how you and your spouse want to handle issues in case of a divorce. This is not limited to asset division, but also other issues that may affect your marriage. Here is a brief breakdown:

Terms of Asset Division

The most important details in a postnuptial agreement are asset division. You need to be as specific as possible, providing details about how money and assets are to be divided between the two of you.

Handling of Debt

A couple may take out loans to buy a new home or start a new business, or may have accumulated credit card debt throughout the marriage. A postnuptial agreement details how they will handle those debts after a divorce. This includes who will be responsible for which loan or how the payments will be made.

Transfer of Assets if One Party Dies

Although not a pleasant topic to talk about, unexpected deaths happen all the time. Acknowledging this in your postnuptial agreement makes it clear how the assets and liabilities will be shared.

Terms of Spousal Support

One side may want the other party to pay X amount, while the other may say that the amount requested is too high. Specifying how to approach spousal support in the postnuptial agreement helps prevent things from heading the wrong way.

Can the Terms of Custody and Child Support Be Included in the Postnuptial Agreement?

While custody and child support are points of concern during a divorce, these topics may not always be addressed in a postnuptial agreement. In many cases, the agreement does not enforce the terms of custody and child support. Since the courts focus on the best interests of the children, they will evaluate the specific situation of a divorce first to decide about custody and child support. This means that the courts can still get involved on behalf of the children, regardless of how a couple has laid things out in the agreement.

How Can Both Sides Ensure That a Postnuptial Agreement Is Valid?

After mutually drafting a postnuptial agreement, the couple must cooperate to ensure that it will hold up in a court of law. Both parties must independently seek legal advice and fully disclose their financial information. They will then sign the agreement voluntarily after fully understanding its terms.

How the Two Parties Are Involved

The parties involved in signing a postnuptial agreement must voluntarily agree to the provisions of the agreement. If the court finds that one party was not given ample time to review the agreement or was forced to sign, the agreement may be invalidated.

When The Postnuptial Agreement Is Not in Writing

When it comes to legal matters, it’s always important to get things in writing. Placing that document in front of the judge to examine increases the chances they will honor it during the divorce. If you enter into a postnuptial agreement and do not have it in writing, it may not be enforced by the courts.

The Postnuptial Agreement Lacks Accurate Details

Just like a verbal agreement, inaccurate information will not hold up in court. Check all the details and facts to make sure everything is presented accurately.

The Postnuptial Agreement Contains Invalid or Unreasonable Provisions

When crafting the postnuptial agreement, the outlined provisions must be valid and reasonable. First, the postnuptial agreement must be cognizant of the laws in the area for the court to acknowledge it. Second, the agreement must be fair and not favor one side at the expense of the other. You will have higher chances of the court accepting the agreement when both sides are getting a fair share.

When Should You Consider Creating a Postnuptial Agreement?

Although bringing up the topic of a prenuptial agreement to your spouse can raise questions, several reasons may make it necessary to create one:

You Want to Ensure Your Children Receive a Fair Share of Your Assets

Whether you want to protect children in your current or earlier marriage, creating a postnuptial agreement can be an effective way of ensuring their future is safe. It will indicate how you want your assets distributed so that your spouse and your children receive a fair amount.

You Want to Protect Your Assets

You may want to keep the assets you had before marriage separate, or any business ventures that you started on your own. A postnuptial agreement could prevent the divorce from being messier by highlighting which assets you wish to retain.

You Suddenly Received a Large Inheritance

You may consider creating a postnuptial agreement if you recently received a large inheritance. Without a postnuptial agreement, the inheritance will be treated as another one of your joint assets. In case of a divorce, the inheritance will be divided equally alongside other mutually owned properties.

You Did Not Want to Deal with Creating a Prenuptial Agreement

Planning a wedding can be stressful, and creating a prenuptial agreement may be the last thing you want. After the wedding, when things have cooled down, you can create a postnuptial agreement with your spouse detailing how you want to handle the marriage and your assets.

You Want to Secure Your Assets while Giving Your Marriage Another Try

Some couples sign a postnuptial agreement ahead of one more reconciliation attempt at their marriage. As they are trying to save their marriage, they also acknowledge that divorce is a real possibility. If the reconciliation attempt does not work out, the agreement will help speed up the divorce proceedings.

Get Legal Assistance for Your Postnuptial Agreement

Your postnuptial agreement needs to be well articulated and detailed. If you’re unsure about your approach or what you need, contact us at the Schill Law Group. Our experienced lawyers will guide you on creating a postnuptial agreement and any other legal matters arising in your marriage.

How to Divide Retirement Accounts after a Divorce

by John Schill | Oct 27, 2020 | Divorce

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SCHILL LAW GROUP

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How to Divide Retirement Accounts after a Divorce

Divorce is a difficult process in more ways than one. For instance, you’ll probably need to learn the significance of the terms such as qualified domestic relations order, QDRO, and QDRO process before it’s all said and done. And that’s only part of the new things you’ll pick up quickly if you want to protect yourself financially during and after a divorce.

We’re not going to sugarcoat things and say that learning about those things beforehand will make the whole ordeal easier. The reality is that the divorce will likely still be hard on you. What’s important, though, is that you’re doing all you can to preserve your finances while also giving yourself a sturdier leg to stand on moving forward.

Learn more about how dividing retirement accounts work during a divorce and prepare yourself properly for what lies ahead.

What Is Considered Shared Property and What Is Not?

Before we get to the machinations of dividing retirement accounts, we first need to determine which funds are subject to the divorce proceedings. Labeling those assets properly matters during the process of division.

Let’s start by identifying the assets that don’t count as shared property.

The courts do not consider funds that you receive as an inheritance or as a gift from someone as shared property. They do not need to be factored into the equation when the time comes to divide everything equally.

The assets that were under your name before you got married will also remain as your sole property.

Where things get a bit trickier is when you’re trying to portion out the funds in retirement accounts. Some of the funds found in there could be subject to division, while others may not.

If there were funds already present in your retirement accounts prior to getting married, they would regard those as separate properties. They will not be included in the calculations when the assets are divided.

The assets considered are the ones added to your retirement accounts throughout the marriage. They will also fairly divide other assets that were accumulated by both parties during the marriage.

How Retirement Accounts Are Divided

The process of divvying up the funds inside retirement accounts during a divorce will depend largely on what kind of account it is. To be more specific, it will depend on whether you want an individual retirement account (IRA) or a qualified plan divided.

Let’s start by discussing IRAs first because they are relatively simpler to divide and transfer.

Dividing IRAs

When it comes to dividing IRAs, both parties in the divorce will first need to specify which of their accounts count as such. The court will then take over from there.

The court’s role is to divide the assets included in the IRAs. They will determine how much you receive and how much your ex-partner will receive. Once again, the assets accumulated during the marriage are the ones they will count.

Dividing the funds included in IRAs is simple enough. Transferring them to different accounts is a bit more complicated.

Transferring the Funds from IRAs

You have two choices here when it comes to how they will transfer the funds from the IRAs.

First off, you could opt to spend the money you’re getting from those IRAs right away. In that case, prepare to pay some taxes.

As the recipient, you will pay income taxes on that new money that came in. You will likely pay a premature penalty since you are opting to withdraw the funds early.

It’s worth pointing out here that you may also end up paying those taxes and penalties if you’re not careful. Failing to indicate that you want those funds transferred to a separate IRA will result in the money being given to you right away. Because of that, you’ll still pay the taxes and penalties.

To avoid those taxes and penalties, you should indicate that you want a transfer incident. Upon deciding that you want the funds moved via a transfer incident, they will go from your ex-partner’s IRA to your new account. They will not ask you to pay for anything at this point if you decide to go with a transfer incident.

However, you will oversee how to use the funds once they transfer them to your new account. You can still take the money out ahead of schedule if the need arises but know that you’ll need to pay a possible penalty then. Your ex-partner will no longer have any say over how you use that money, and they will also have no other tax obligations.

Dividing Qualified Retirement Plans

Dividing an IRA is one thing. Both sides know how much money their IRAs contain, it’s easy to divide them between the two parties.

But what happens if the money isn’t available right away? In some cases, retirement assets are tied up in their retirement plans.

To resolve that matter, you can secure something known as qualified domestic relations order.

What Is a Qualified Domestic Relations Order?

The qualified domestic relations order, also known as a QDRO, is an order handed down by the court that indicates how they will disburse certain funds. More specifically, it lays out instructions for how the funds you’re entitled to that are currently in your ex-spouse’s retirement plan will be handled.

The QRDO can be used to dictate how your ex-spouse’s retirement plan will pay for their share of child support, alimony, or even cover for property rights that they could not divide equally. You can also have the funds funneled into a new retirement account you’ve set up.

Similar to transfer incidents, funds moved through QRDOs are tax and penalty-free. Note that funds coming from your ex-partner’s retirement plan that is not being transferred by a QRDO will still be subject to taxes and penalties.

As the recipient of the funds from your former spouse’s retirement plan, you have additional responsibilities to take on as well. The good news is that the most you’ll need to do is make regular reports about the payments you’re receiving. It’s an added chore, but one you should handle easily.

The Limitations of Qualified Domestic Relations Orders

You cannot automatically assume that the retirement plan your ex-partner has can be subjected to a qualified domestic relations order. Those orders don’t cover everything.

QDROs are limited only to qualified retirement plans as designated by ERISA or the Employee Retirement Income Security Act. Those retirement plans include defined benefit plans and defined contribution plans.

Dividing Defined Benefit Plans

Defined benefit plans are sponsored and managed by the employers. The employers themselves will usually share the formula they’re using so that their employees have a good understanding of how much they can expect to receive in the future.

According to Investopedia, you can use factors such as an employee’s salary and employment history to come up with the figure for the defined benefit plan. You should also know that you cannot withdraw the funds from a defined benefit plan easily. Those plans usually designate a specific age when they pay out, so calculating their final value can be put off until then.

Dividing the funds from defined benefit plans is hard to do because of how they are structured.

There is no set value to provide. Because of that, they will need to calculate to determine how much you are entitled to. Those calculations will be quite complex since they should only account for the benefits accumulated while the marriage was in effect.

The amount of money you receive from a defined benefit plan can also be determined by how you want it paid out.

You can opt to have the payment deferred and wait until the plan reaches maturity before claiming your share. As the ex-partner, you can have the option of claiming your share now, depending on the value of the defined benefit plan.

Regardless of how you want the benefits paid out, the court will still be the one to decide how to divide the funds between you and your former spouse.

Dividing Defined Contribution Plans

Compared to defined benefit plans, it’s easier to portion out defined contribution plans between two parties. The main reason is that the amount is clearly defined.

Employees contribute a fixed percentage or amount of their salary to their defined contribution plan. So, it’s easy to calculate how much one party has contributed to their plan over the length of a marriage, and that amount can be divided.

Investopedia does note that there are cases where the employers match their employees’ contributions to boost their benefits. You may get those additional contributions as the former spouse.

The court will again be the one in charge of determining how they divide the money from a defined contribution plan.

How to Secure a Qualified Domestic Relations Order

Given that there are other parties involved in the handling of retirement plans, securing a QDRO is not as straightforward as getting an order from a court. The plan administrator will be involved, and you will require the help of an attorney at this point.

You want to start working with an experienced attorney at this point because of how intricate retirement plans can be. Attorneys who haven’t spent that much time studying retirement plans may miss something important that, in turn, could cost you a good chunk of money once you finalize the divorce.

Leave the drafting of the QDRO to an attorney who has already dealt with retirement plans extensively in the past to ensure that you are getting your fair share. Opting to have an attorney take care of that will also free you up to focus on other matters that are related to your divorce proceedings.

Additional Tips for Securing Your Fair Share of Funds from Retirement Accounts

Working with a knowledgeable attorney is how you can avoid getting the short end of the stick during asset division. Author, businessman, and financial expert Dave Ramsey has additional tips you can follow to protect your fair share of the money.

Secure the Separation of Finances Immediately

Once you and your spouse have decided that your marriage is over, you should move right away to secure your finances. This means closing any joint accounts the two of you have and securing your portion of retirement plans as soon as possible. Acting this way will prevent your ex-spouse from potentially driving down the amount of money you are supposed to receive.

In addition to those actions, you may want to freeze your credit as you’re going through the divorce proceedings. That should prevent your ex-partner from pulling any funny business, such as taking out loans under your name.

Get Everything Down in Writing

You and your ex-partner reaching an agreement regarding how you’ll divide your assets would be ideal. That’s not something you typically want to leave up to the courts.

However, you shouldn’t buy into everything your ex-partner is saying, either. If the two of you do have an agreement, insist on getting it down in writing and make sure that it’s legally binding. That will ensure it holds up in court, and you don’t end up getting blindsided.

Educate Yourself about Retirement Accounts

Remember that those QDROs are helping you receive money from retirement plans. Now would be a good time to learn more about those retirement plans if you haven’t started reading up already.

While you’re at it, you can also use this time to find out how to best use that money. You may have a tough time adjusting to living on a single income again and saving up for your future following the divorce. Find out how you can best use that money to keep yourself financially stable.

The division of retirement accounts following a divorce can turn into a complicated undertaking. Enlist the help of experienced attorneys to make it more manageable. Reach out to us at the Schill Law Group and allow us to help get those financial matters sorted.

How to File for Divorce in Arizona: Step-by-Step Legal Guide

by John Schill | Oct 26, 2020 | Divorce

How to File for Divorce in Arizona: Step-by-Step Legal Guide

The process of filing for a divorce can be overwhelming, especially with the emotional toll that comes with ending a marriage. Although no one enters a marriage with divorce in mind, sometimes it’s the only option. The legal process itself can be complex, with practical decisions to make, requirements to meet, and forms to sign. In this article, we break down the process of filing for divorce in Arizona so you can know what to expect and prepare accordingly.

How Divorce Is Different in the State of Arizona

Filing for a divorce in Arizona refers to the process of divorce as the dissolution of marriage. However, it differs slightly from some states in terms of requirements. For instance, the Judicial Branch of Arizona requires residents to wait for at least 60 days from the date of their marriage before they can file for a divorce. The parties pursuing the dissolution of their marriage must be domiciled in the state for at least 90 days before filing. This means that the couple must have treated Arizona as their primary state of residence. One of the ways you can demonstrate that your primary domicile is by registering to vote. If you and your spouse meet these two requirements, either can push to proceed with the marriage dissolution.

What Do You Need to Discuss With Your Spouse Before Divorce Proceedings?

Before filing for a divorce, it helps to discuss pertinent issues with your spouse or partner. Agreeing on the following issues can speed up the process and make the divorce proceedings seamless:

Custody of the Minor Children

Custody is one of the primary concerns for many parents when filing for a divorce. When minor children are involved, the court will have to decide about the custody. Being on good terms with your partner can be helpful. You can discuss the future of your children and decide on the best course of action:

How you will divide parenting time: Do you want to have rotating schedules, or split the weekends and weekdays?
How will you make decisions about your children: Will the parent who is currently watching over the child have the right to make all decisions, or will consultations be necessary?

Discussing the issues of custody ensures that both of you are content with the arrangement and that the young children involved will not be subjected to conflict needlessly. If you cannot agree about the custody, then the judge will do it for you.

Child Support

Child support refers to the financial obligations that parents have to their children. Whether you are the parent awarded primary custody or the non-custodial, supporting your child will still be your responsibility. Although there is no set amount of child support you must pay, the law requires it to be a reasonable amount.

Maintenance or Alimony

Alimony means maintaining a certain standard of living for your ex-partner. This provision during a divorce covers the unequal division of assets. It can take different forms other than monetary payments, such as providing your partner with certain goods and/or services in lieu of financial support.

Division of Assets

Another thing you will need to discuss before divorce proceedings is asset division. The court will usually seek to equally divide all the assets that the couple acquired throughout the marriage. Talking about the division of assets with your spouse helps to clarify which of your assets were obtained before getting married, and avoid contentious dissolution.

How to File for a Divorce in Arizona: A Step-by-Step Guide

Whether you have discussed the above with your or not, you can still start the divorce proceedings. Here are the key steps to follow:

Step 1: Obtain and Accomplish the Petition for Dissolution of Marriage

The first step to filing a divorce in Arizona is to obtain a petition for dissolution of marriage. This is the document that the court will repeatedly reference throughout the divorce proceedings. Make sure you provide all the requested details and fill out the form under the supervision of an attorney to avoid making mistakes.

Step 2: Complete Other Relevant Documents

In addition to the petition for dissolution of marriage, you may be required to fill out the preliminary injunction, summons, sensitive datasheet, and other documents.

Step 3: File the Petition for Dissolution of Marriage and Other Documents with the Court

Once you have obtained and filled the necessary documents, head over to the courthouse in your area and look for the clerk of court who will accept your filing. Familiarize yourself with the rules for filing and pay the necessary fee. You will then be given a case number that you will use as a reference for future proceedings.

Step 4: Serve the Petition for Dissolution of Marriage and Other Documents to the Other Party

With the documents completed and filed, you can now serve your spouse the petition to dissolve the marriage. Serving them the paperwork gives them a legal notice of what you intend to do.

You can serve your spouse divorce documents by sending an unrelated party such as a registered process server or a law enforcement officer to deliver the documents. You could also have them sign an Acceptance of Service before serving the documents. You are then required to return the signed documents to the clerk of court and file the proof of service.

Step 5: Wait for the Response of the Other Party

If your spouse lives in Arizona, they will have up to 20 days to file a response to your petition while those living outside will have up to 30 days. In cases where the respondent was made aware of the petition through a publication, they will have up to 60 days from the day of the notice’s initial publication to respond. If the other party does not respond on time, the case can proceed by default if they fail to respond promptly.

Step 6: File a Consent Decree if You Agree to the Dissolution of Their Marriage

Once the two of you agree to the terms of the divorce and indicate as such in their response, the next step is to file consent decrees, detailing the terms of your divorce. The consent decrees are then filed with the court. You may need to make an additional appearance in court to finalize the divorce.

Step 6A: Attend a Default Hearing

If your ex-partner does not respond to the petition, a default hearing will eventually end in your being divorced. You will need to file an application and affidavit of the default divorce and send a copy to your spouse. If they do not respond after 10 days, your divorce will push through.

Step 6B: Go to an Early Resolution Management Conference

The court may order both of you to attend an Early Resolution Management Conference if your ex-spouse does respond and indicate that they do not agree with the terms of marriage dissolution. During the conference, the two will need to compromise and agree to the terms of your divorce.

Step 6C: Take Part in a Trial

In cases where the two of you cannot agree to the terms, the trial may go to court. Since trials can be costly and time-consuming, it is best to discuss all the pertinent issues with your partner before starting the divorce proceedings.

Step 7: The Dissolution of Marriage Is Finalized

Your marriage is dissolved at the end of the divorce, whether you went through a relatively civil divorce or a contentious trial. The court will hand down the decree of dissolution of marriage, marking the finalization of the divorce.

Hire a Reliable Divorce Lawyer

Divorces can be messy, tiring, and costly. However, working with an experienced lawyer increases the chances of getting final terms that favor you. If you want to file for a divorce in Arizona, contact us at the Schill Law Group today. Our attorneys are ready to take your case and guide you through every step of divorce proceedings.

What Is Spousal Maintenance?

by John Schill | Oct 22, 2020 | Alimony

DEFENDING THE PEOPLE OF ARIZONA

MORE THAN 100 YEARS COMBINED EXPERIENCE

SCHILL LAW GROUP

8700 East Via de Ventura
Suite 210
Scottsdale, AZ 85258

333 N. Wilmot Rd, STE 340
Tucson, AZ 85711

What Is Spousal Maintenance?

The end of a marriage does not necessarily mean that the two parties no longer have responsibilities to one another. They may still have responsibilities to fulfill if they share custody or if paying spousal maintenance is ordered by the court.

Whether or not you pay spousal maintenance is part of a settlement and how much is owed by one party are often points of great contention during divorce proceedings. It can be a struggle for both sides.

You need to know all about this topic ahead of divorce proceedings to ensure that you’re not getting the raw end of the deal. Learn more about spousal maintenance, when it becomes necessary, how they calculate it, and several other related topics by continuing with this article.

What Is Spousal Maintenance?

Spousal maintenance is known by a few other names. You may have heard it referred to in the past as spousal support or as alimony. Regardless of how it’s called, the goal for spousal maintenance remains the same.

That goal is to give both parties a chance to land on their feet following the end of the marriage.

So, let’s say that only one of the parties involved had a career throughout the marriage while the other stayed at home to watch the kids. Should the two of them separate, the spouse who remained at home most of the time and did not pursue a career will obviously have a tougher time finding a good job following the end of the marriage.

It would be unfair to that spouse if they suddenly ended up with no means to make money because of the sacrifices they made throughout their marriage.

Furthermore, the state of Arizona also regards the accomplishments reached during the marriage to be the results of the two spouses working together. As such, the contributions of both sides will count following the divorce.

Differentiating Spousal Maintenance from Child Support

Before we go deeper into the topic of spousal maintenance, it’s worth taking the time to discuss an important distinction first. Maintenance is not the only financial support you may be required to provide post-divorce. In some cases, you may also be required to pay child support.

So, how do those two differ?

Child support is only for goods or services that your child or children need. They are not for any personal purchases.

Spousal maintenance is different because your former partner can decide how to use it. They can use it on personal purchases if they so desire.

It’s important to make that distinction whether you’re sending or receiving the payments. You could end up running into trouble with the law if you fail to make that distinction.

When Does Spousal Support Become Necessary?

One of the parties involved in the divorce requests spousal support. Even before the matter reaches the court, the two sides may already decide that spousal maintenance is necessary and will include that in their divorce.

However, there are also cases wherein one side will request alimony while the other will object. In that case, the court will be the one to decide if the provision of alimony is indeed necessary.

The court generally considers a few factors when deciding whether paying spousal maintenance is needed.

The Party Seeking Maintenance Lacks the Means to Cover Their Reasonable Needs

First off, the court may order the payment of spousal maintenance if the party seeking it lacks the means to cover their daily needs. If the party requesting support does not have a steady income, the court may order the other side to pay maintenance.

The Party Seeking Maintenance Is Unable to Secure Employment Due to a Lack of Skills or Due to Their Child’s Needs

Maintenance also becomes a necessity if the court sees that the party requesting it cannot find work so easily.

The reason they struggle to find work could be because they don’t have the requisite skills and/or experience. After many years spent staying at home, the party in question may not have had the opportunity to develop their skills. Spousal maintenance will help make up for that.

There are also cases where the party requesting support is the primary parent of a child who cannot be left alone due to their age or condition. The regular support payments will help those parents out.

The Party Seeking Maintenance Contributed to Their Former Partner’s Education, Career, or Training

Let’s say that you helped pay for your spouse’s college education earlier in your marriage. Now that the two of you are separating, they must compensate you for those earlier contributions via spousal maintenance.

The Party Seeking Maintenance May Struggle to Find Adequate Employment Due to Their Age and Long Marriage

If a marriage lasts long enough and the party asking for spousal support is at an age where securing adequate employment becomes hard, the courts may grant their request. Note that there are no set guidelines for what constitutes a long marriage in the eyes of Arizona law. That matter will be left up to the court to decide.

The Party Seeking Maintenance Gave Up Career Opportunities or Steady Income for the Other Spouse

One of the parties in a marriage may have sacrificed career prospects for their spouse. They could have decided to stay at home to watch over their kids and put their career on pause because of that. Spousal maintenance is supposed to compensate the party who made that sacrifice.

How Are Alimony Payments Calculated?

Spousal maintenance payments are not determined randomly. The court will first take into consideration a variety of factors to come up with the right amount that one party has to pay. They consider numerous factors when calculating the total amount of spousal support to be paid, and they are below. The standard of living established throughout the marriage

The length of the marriage
The status of the party seeking maintenance accounting for their age, wellbeing, earning ability, and employment history
The ability of the party to provide spousal support to sustain themselves and the party requesting maintenance
The finances and earning abilities of the two parties
The contributions made by the party seeking maintenance to the other spouse’s earning ability
The sacrifices made by the party seeking maintenance to benefit the other spouse
The abilities of both parties to pay for their children’s education
The resources of the party seeking maintenance and their ability to self-sustain
The time the party seeking maintenance will need to find adequate employment and whether they need further education or training
Excessive expenditures, the concealment, destruction, or fraudulent disposition of community, and properties held in common
The cost of health insurance the party seeking maintenance will need to pay, and the reduction in payment the other spouse will pay if they change their health insurance plan following the divorce
Damages resulting from the criminal conviction of either party that resulted in either the other spouse or their children being victimized

Can the Amount of Spousal Maintenance Payments Change?

How much you receive as spousal support or how much you pay can change over time.

Spousal maintenance payments could increase if the party receiving them lost their job. Other changes to the job market could also be cited as reasons why the payments should be increased.

On the other hand, the payments could decrease if the party on the receiving end has landed a higher-paying job. The court may also decide to lower the payments if the party charged with making them lost their job.

One side will typically ask the court to make changes to the spousal support payments before they can take effect.

How Long Are Spousal Support Payments Supposed to Be Made?

No law sets a specific length of time for spousal maintenance. The courts will decide how long they will need them on a case-by-case basis. They will continue until such time that the prescribed payment period ends.

However, spousal support can terminate for a few reasons. If the party receiving the support dies, the other spouse will no longer make the payments. Support can also end if the party on the receiving end gets married again.

Do note, though, that getting married again does not automatically put an end to spousal support.

For instance, the court may decide to re-evaluate the payments after the party receiving the support remarries. Upon doing so, the court may check if the new marriage has improved that party’s financial situation. If their financial status has not improved significantly, the court could rule that spousal support must continue even after the party receiving the payments is married again.

The court could also find that the party receiving spousal support’s financial status has at least improved to some degree. Citing that, the court may opt to lower the payments that the other spouse has to send.

Spousal support can also continue through remarriage if the party receiving the payments made significant contributions to their former spouse’s education or career. They must still compensate for their previous contributions so their new marriage will not impact spousal support.

How Are Spousal Maintenance Payments Made?

The process of paying alimony will depend on the paying party’s employment.

If the party in question is an employee at a company or business, the courts can place an Income Withholding Order on their paychecks. The order instructs the employer of the paying party to deduct the amount corresponding to the spousal maintenance payments from their employee’s paychecks.

The employer will then send those deducted amounts to the clerk of the superior court. The clerk of the superior court will then record the payments and send them to the other party.

If you’re self-employed, you will send the payments to the clerk of the superior court yourself. The same holds true for unemployed individuals who make spousal support payments.

Can You Send the Spousal Maintenance Payment in a Lump Sum?

For those tasked with sending spousal support payments, having to make regular trips to the clerk of the superior court can become tedious and bothersome. The good news is that lump sum payments are permitted.

How Do You Request Alimony?

You should request spousal maintenance early in the divorce proceedings. When exactly you should make your request depends on whether you are the petitioner or the respondent to the petition for dissolution of marriage.

As the petitioner, you should request spousal support when you file the petition initially. Make it known as soon as possible to both the court and your former spouse that you need that financial support.

As the respondent, you should mention spousal support in your response to the petition. Don’t forget to mention that right away so they can consider it during the divorce proceedings.

Do You Need to Worry about Taxes When It Comes to Spousal Maintenance?

There are no blanket responses regarding taxes and spousal maintenance payments. They will need to consider the specifics of your situation first to determine your potential obligations.

Do note, though, that the party sending the payments may sometimes be allowed to deduct those from their tax obligations. On the other hand, the party receiving the spousal support may also report the payments as additional income.

Divorce could end up being one of the hardest ordeals you’ll ever go through. It could be even tougher if you lack the resources necessary to re-establish your life following the end of your marriage.

Make sure that you receive the support you’re entitled to by requesting spousal maintenance. Partner with us at the Schill Law Group if you want to receive the compensation you deserve.

What Does the Uniform Marriage and Divorce Act Do?

by John Schill | Sep 30, 2020 | Blog, Family Law

Getting married is one of the most important decisions of your life and deserves to be considered carefully and thoughtfully. Unfortunately, even if you truly believe that you’ve found the right partner, some relationships don’t work out for one reason or another, and that is where the Uniform Marriage and Divorce Act can prove helpful. The Uniform Marriage and Divorce Act has proven to be a monumental piece of legislation. It has continued to affect the lives of millions of Americans up to this day. For this article, we’ll take a closer look at the Uniform Marriage and Divorce Act and how it has specifically impacted the residents of Arizona. You can also learn more about divorce proceedings and the things you need to consider if you want to go through with that.

What Is the Uniform Marriage and Divorce Act?

The Uniform Marriage and Divorce Act, which is also sometimes referred to as the Model Marriage and Divorce Act, was drafted up back in 1970 and was later amended in 1973. It was the work of the National Conference of Commissioners of Uniform State Laws, otherwise known as the NCCUSL. Along with the NCCUSL, committee members appointed by the American Bar Association were also tasked with working on the statute. Found within the Model Marriage and Divorce Act are clear definitions of both marriage and divorce. The idea behind the act was to come up with laws concerning marriage and divorce that state legislatures across the country could adopt. The NCCUSL hopes that the model statute will eventually be adopted in all states. If that happens, it will simplify laws concerning marriage and divorce further and will reduce the pressure on judges to make important decisions regarding personal relationships. So far, the act has not been adopted yet by all states, but Arizona is following its guidelines. Since its creation, the Uniform Marriage and Divorce Act has had a profound impact on marriage and divorce across the country. Perhaps its most notable contribution has been the introduction of “irreconcilable differences” as potential grounds for divorce. We’ll get into what “irreconcilable differences” are a bit later in the article. For now, let’s focus first on no-fault divorce.

The Importance of No-Fault Divorce

There was a time in the United States when no-fault divorces were not permitted, and that was problematic for many for a variety of reasons. Back then, couples who were seeking a divorce had bigger hurdles to overcome. Divorce proceedings essentially required one party to be at fault, and that would then serve as the grounds for divorce. The fault in question could be one party committing adultery, committing a felony, or other acts of that nature. Now, the catch was that only one party should be at fault for the divorce proceedings to move forward. If the court found that both parties were at fault for their marital problems, then the union would be preserved. The divorce proceedings could also be derailed if the supposed faults committed by one party were falsified. Needless to say, getting a divorce legitimately back then was hard to accomplish. An odd but perhaps unsurprising byproduct of how the divorce system worked in the past is that it forced people who no longer wanted to be married to come up with ways to dissolve their marriage. These methods included lying in court and coming up with fabricated stories about adultery. If those methods didn’t work, the two parties would have no other choice than to remain married to one another.

How No-Fault Divorces Changed Marriages

Eventually, laws that allowed for no-fault divorces were written and adopted by different states, but that created a new kind of weirdness as well. Since not all the states adopted no-fault divorce laws simultaneously, the result was a lack of uniformity throughout the country. What happened in many cases was that one party in a marriage would head to a state where they allowed no-fault divorces, stay there for the required amount of time, and then move forward with divorce proceedings. These days, you don’t need to move to specific states since no-fault divorce is now permitted throughout the country. The Uniform Marriage and Divorce Act has also made obtaining a divorce simpler for the parties involved.

What Are Irreconcilable Differences?

As we noted earlier, the biggest contribution the Uniform Marriage and Divorce Act has made is the introduction of irreconcilable differences as a possible grounds for divorce. You may have heard the term used before when news of celebrities breaking up made headlines. But what exactly does the term “irreconcilable differences” mean? Also sometimes referred to as incompatibility or irretrievable breakdown, the courts often use the term “irreconcilable differences” as grounds for dissolving a marriage. In the eyes of the court, those irreconcilable differences are substantial enough to warrant the end of the union.

Breaking Down the Irreconcilable Differences

To further clarify matters, let’s focus on the two words included in “irreconcilable differences.” The inclusion of the term “irreconcilable” indicates that at least one of the parties involved believes they can no longer salvage the marriage even with the help of counseling. Something is fundamentally wrong with the partnership and whatever that may be, at least one side has concluded that it has been broken beyond repair. So, what about the differences? They refer to a lack of harmony on important elements of a marriage. They highlight the disagreements that arise between the two people involved. For instance, career demands could be among the main reasons why two people are getting divorced. After taking on a new job, one spouse may be on the road all the time, and that can put a lot of strain on a marriage. If the two sides cannot find a way to overcome the distance, then they may conclude that filing for divorce would be best for them. Money is another potential culprit in the breakdown of marriages. If one party sees the other as being irresponsible with their finances, divorce proceedings might follow soon. Couples could also end up divorced because they want different things out of life. They may disagree on matters such as wanting to have kids or where they want to live. Those fundamental disagreements can lead to even strong unions falling apart.

Additional Facts about Irreconcilable Differences

You should know a few other things if you’re considering filing for a divorce on irreconcilable differences. For instance, the law does not require both parties to agree on divorce on the grounds of irreconcilable differences for them to finalize it. Even if only one side is seeking a divorce, the courts can still approve it. Another thing is that you don’t need to state your reasons for wanting a divorce. Per the Cornell Law School, the courts generally refrain from asking parties to further state why they are seeking a divorce if they cited irreconcilable differences. If you want to keep those matters private, you can do so.

What Are the Other Grounds for Getting a Divorce?

Apart from irreconcilable differences, there are other valid reasons for wanting to end a marriage. These reasons include:

Abandonment
Abuse
Adultery
Alcohol Use
Drug Use
Imprisonment

Former partners who have been separated and living apart for some time may also file for a divorce. In that case, the two parties must be living apart for at least two years without reconciling before seeking an end to their marriage.

How to File for Divorce in the State of Arizona?

Once you and/or your partner decide your marriage is no longer working, you may file for divorce. Before you can start that process though, you must meet certain requirements.

You Must Be Domiciled in the State of Arizona

One of the requirements you’ll need to meet before you can file for a divorce is to show the court that you’ve been domiciled in the state for at least 90 days. According to LegalZoom, being domiciled means that you have completed certain actions which show that you fully intend to live in Arizona moving forward. That is not going to be an issue if you’ve been an Arizona resident for a long time. However, if you recently moved to the state, you would likely need to take a few more actions. You can start by applying for a driver’s license.

File a Petition for the Dissolution of Marriage

Once you and/or the other party have been domiciled in Arizona for the required amount of time, the divorce proceedings can now press forward. If you’re the one seeking the divorce, you will file a Petition for the Dissolution of Marriage. Drawing up that document is something you can probably handle on your own, but you could open yourself up to mistakes. Mistakes in the petition will likely mean having to re-file, and that would be an unnecessary drain on your time. This is the point in time where you will want to consult with an experienced lawyer to help you craft the petition. If you are on speaking terms with your soon-to-be former partner, the two of you can also consult with one another when filling out the petition. You’ll also have to mention the grounds for dissolution in the Petition for the Dissolution of Marriage. In the state of Arizona, that means stating that your marriage is “irretrievably broken.” With the petition completed, you can then ask your lawyer to file it with the Superior Court of the county you live in.

Prepare for and Attend a Court Hearing

In all likelihood, the courts will ask you and the other party to appear once you file the petition. It would be a good idea to prepare for that court hearing beforehand. Go over the facts you mentioned in the petition with your lawyer and make sure you know what to say in front of the judge. For the most part, the judge’s questions will be about the petition and your marriage. They will also ask you if you understand everything that a divorce entails. The judge may ask about matters such as child custody, alimony, and property division during the hearing. Those preparations should make it easier for you to say what you want in front of the judge. The judge may then enter a Decree of Dissolution of Marriage on behalf of you and your former partner.

Are There Cases Where Seeking a Divorce in Arizona Can Be Complicated?

While you can dissolve most marriages in a relatively straightforward manner in Arizona, some couples may have a tougher time doing so. Arizona is one of the few states in the country – along with Arkansas and Louisiana – that have covenant marriages. If you entered a covenant marriage, you and your partner must first go to counseling before you can file for divorce. The two of you will also likely need to wait longer than most other couples before being eligible for divorce proceedings. You should also note that covenant marriages in Arizona cannot be dissolved simply by citing irreconcilable differences. One of the parties involved must show that the other party was at fault for the deterioration of the relationship. The reasons you can cite for fault in covenant marriages are the same ones mentioned previously. Those include abandonment, abuse, adultery, alcohol, and drug use, as well as imprisonment. Living apart for a prolonged period of time can also be pointed to as a valid reason for divorce. Divorce is not the desired outcome for couples when they first got married. However, it is sometimes the inevitable result of people growing apart for one or several reasons. There was a time not too long ago when finalizing a divorce was a Herculean task. Thanks in part to the Uniform Marriage and Divorce Act, couples who no longer wish to be married can have their unions dissolved. If you want help navigating divorce proceedings, we at the Schill Law Group are ready to offer our assistance. Get in touch with us today and allow us to ease your burden as you go through what can be a trying time.

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