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9 Common Factors of Divorce in Arizona, from Start to Finish

9 Common Factors of Divorce in Arizona, from Start to Finish

by | Jul 20, 2020 | Alimony, Child custody, Child Support, Divorce, Legal Seperation, Parenting, Visitation

Defending the People of Arizona

With more than 100 Years of combined experience

9 Common Factors of Divorce in Arizona, from Start to Finish

Many people who decide to divorce have never been in court and are unfamiliar with what to expect. If you want to end your marriage, you will have to go through the divorce process. While there are certain exceptions through which you might be able to get an annulment, most people will need to go through the divorce process to terminate their marriages.

In Arizona, this process is called a dissolution. When you go through the dissolution process, you will need to make decisions about many different issues, including community property, debt and asset division, spousal maintenance, child custody and visitation, and child support. By understanding the divorce process, you might be able to anticipate what to expect.

The attorneys at the Schill Law Group can help to guide you throughout the process and demystify it for you. Here is an overview of the stages of a divorce from its beginning to the end.

1. Filing the Petition for Dissolution

The first step to take when you want to get a divorce is to file the petition for dissolution. Under A.R.S. § 25-311, people must make sure to file their petitions for dissolution with the court that has jurisdiction to hear the matter.

Under A.R.S. § 25-312, one or both of the parties must have been domiciled or serving in the military in Arizona for at least 90 days at the time that the petition is filed. Your petition will be filed along with a summons and other documents, including a preliminary injunction, request for temporary orders, and others that apply to your situation. In your petition, you will list what you are requesting about property division, spousal maintenance, child custody and visitation, child support, and attorney’s fees and costs.

2. Service of Process and the Response

After your petition and other documents are filed, the court will issue a notice and summons to respond. You must serve copies of the petition, the summons, and any other legal documents that you have filed in the case of your spouse. You will be called the petitioner, and your spouse will be called the respondent. You can hire a private process server or use the sheriff’s department to serve your spouse.

However, if you can get your spouse to agree to waive service of the documents, he or she can sign a waiver that can be filed with the court. Once your spouse has been properly served with notice of your divorce, he or she will have time to file the response. If your spouse lives in Arizona, he or she will have to respond to your petition within 20 days of when he or she was served. If your spouse lives out of the state, he or she will have 30 days to file his or her response. Under Arizona law, the only defense to a petition for dissolution in a regular divorce is that the marriage is not irretrievably broken under A.R.S. § 25-314. If your spouse fails to respond to the petition after being properly served, the court can grant a default divorce decree after 60 days from the date of service.

3. Temporary Orders

In some cases, people will file requests for temporary orders or preliminary injunctions at the time that they file petitions for divorce under A.R.S. § 25-315. Either party can ask for temporary orders, including the respondents. These orders establish the rules for how different things will be handled while the divorce is still pending.

For example, you might ask for temporary orders for child custody and visitation, child support, who will remain in the house, who will be responsible for paying the bills, and spousal maintenance. A preliminary injunction might be issued by the court to restrain both you and your spouse from spoliating or disposing of the property before the divorce is completed.

It can take a few months before temporary orders are issued. If there is an emergency, a spouse can request emergency temporary orders that can be heard much faster.

4. The Discovery Process

Once the petition and response have been filed, the divorce case will move into the discovery phase. Both you and your spouse are entitled to receive information from each other about your assets and other relevant factors about your case.

The process for obtaining the needed information is called discovery. It can be a straightforward process in some cases. In others, it can be time-consuming and expensive. In most cases, the size and value of your estate and the length of your marriage can impact how much discovery is necessary.

The discovery phase might involve several procedures. Your lawyer will submit and receive information for you, but you will also need to provide input. Interrogatories are written lists of questions that you can send to your spouse. Your spouse can also send interrogatories to you. If you receive interrogatories, you must respond with written answers within a set period.

If you need certain documents that have not been provided to you, your attorney can file a request for the production of documents to secure them. Either you or your spouse can schedule a deposition. This is an out-of-court proceeding during which you, your spouse, and other witnesses may be asked questions under oath and in person. When a deposition is held, a court reporter will be present and will prepare a transcript of what occurred. The attorneys will ask the questions at a deposition.

In some cases, attorneys can complete discovery without resorting to the formal processes that have been described above. This is almost always less expensive and more efficient than going through a more formal process.

5. Negotiating a Settlement

Other than in cases that involve domestic violence, drug or alcohol abuse, child abuse, or people who are possibly hiding assets, it is often best to try to resolve a divorce case by negotiating a settlement agreement. People who can negotiate divorce settlements are often happier than those who leave the decisions up to the judge.

Negotiated settlements give the parties greater control and privacy. Spouses who reach negotiated settlements are likelier to comply with them than they are with orders from a court. If you reach a negotiated settlement with your spouse, you can file it in court. As long as the judge finds that your agreement is fair and conscionable, your settlement agreement will be a part of your final divorce decree.

Judges may sometimes order mediation to try to encourage the parties to settle their cases. In many cases, people can resolve many of their outstanding legal issues during mediation. Your lawyer can represent you during mediation. While he or she may recommend that you reject or accept a proposal to settle, the decision will be yours.

6. Divorce Trial

If you cannot reach a settlement agreement with your spouse, your divorce case will go to a divorce trial. At your trial, you will each be provided with the opportunity to present evidence, call witnesses, give testimony, and submit exhibits. You and your spouse will likely have to testify and to submit to cross-examination by the opposing attorney.

If your case does go to trial, it will likely be more expensive. In some cases, it might be the only way to reach an end to your marriage. You should keep in mind that trials are risky. Your attorney cannot predict the outcome for you. The judge will issue his or her orders as he or she understands the case. The judge will not know you or your spouse but will be given the power to tell you how to live your life after your divorce.

In some cases, a trial will not be the final step of a case. If you or your spouse are unhappy with what happened, either of you can file an appeal. If an appeal is filed, more time and expense will be involved. Appeals are also difficult to win.

7. Divorces with Children and Custody Issues

If your divorce will involve child custody issues for the minor children that you share with your spouse, you will have to file a petition for dissolution with minor children. For this type of divorce, you and your spouse will need to try to negotiate a parenting plan. If you cannot reach an agreement, you will each need to submit a proposed parenting plan to the court.

Child custody and visitation issues are frequently among the most contentious issues in divorce. They can also present added challenges for your attorney. While your lawyer is loyal to you, he or she also must keep the best interests of the children in mind.

Your parenting plan will include information about legal decision-making authority and parenting time for you and your spouse. Legal decision-making authority refers to which of you will have the ability to make decisions for your child’s religion, education, and medical care. Parenting time refers to where your child will reside and how much visitation time he or she will have with the other parent.

Legal decision-making authority and physical custody may both be either sole or shared. Your attorney can explain how this might look and advise you on the types of custody that might be most appropriate in your situation. Parents who are divorcing, with minor children, will also be required to attend parenting classes.

8. Determination of Child Support

Another issue that will be at play in a divorce with children in Arizona is child support. Under A.R.S. § 25-501, both parents are expected to contribute financially to the upbringing of their child. Arizona has child support guidelines for courts to use to determine the amount of support to order. This can help to make the amount of child support that you might have to pay or might receive more predictable.

9. Keeping the Best Interests of Your Children in Mind

If you cannot reach an agreement with your spouse about child custody issues, the court will follow the factors that are outlined under the best interests of the child standard in A.R.S. § 25-403. Regardless of whether you take your child custody issues to trial, you should conduct yourself in a way that will minimize the emotional harm to your children during and after your divorce.

Always put your children first. You should never try to use them as a weapon against your estranged spouse. Do not talk badly about your spouse to your children or in front of them to others. Encourage your children to spend a lot of time with your spouse. Remember that divorce is just as hard on children as it is on the adults.

However, children are less equipped to deal with the emotional conflicts and fallout that divorce can bring.

You should not introduce your children to your new romantic interest until they have had plenty of time to adjust to their new reality. You should also not take your children with you to your attorney’s office or the court. Be flexible and try to stick to the schedule that has been ordered or that you have created with your spouse.

Talk to your spouse about discipline issues and try to reach an agreement so that there can be continuity between both of your homes.

Complete Help from the Phoenix Divorce Lawyers at the Schill Law Group

Getting divorced is not easy for most people. If you want to end your marriage or have been served with a petition for divorce, contact the Schill Law Group for help and guidance through difficult times. Call us today at 480.525.8900 to schedule a consultation.

 

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What Does “Best Interest of a Child” Mean?

What Does “Best Interest of a Child” Mean?

by | Jun 15, 2020 | Child custody, Custody, Divorce, Legal Seperation

Defending the People of Arizona

With more than 100 Years of combined experience

What Does “Best Interest of a Child” Mean?

When parents of a child have a dispute over custody, the family court is required to make its custody decision based on what is in the best interests of the child. This is a legal standard that includes several factors that must be considered by a judge who is hearing a child custody matter.

Family court judges use the best interests of the child factors to make decisions about parenting time, custody, and modification requests. If you are involved in a dispute about the custody of your child, the attorneys at the Schill Law Group can help you to understand how this standard might be applied in your case.

What Issues Must be Determined in a Child Custody Case in Arizona?

When Arizona courts hear child custody cases, two issues must be decided. The first issue that a judge will need to determine is the physical custody of the child. This refers to which parent the child will live with and the amount of visitation the other parent will enjoy with the child.

The second issue that a judge will need to decide is the legal custody of the child. Legal custody refers to which parent will have the authority to make decisions for the child. These two issues are referred to as parenting time and decision-making authority in Arizona instead of physical and legal custody.

Instead of letting the court make decisions about parenting time and decision-making authority, parents should try to negotiate with each other to reach an agreement. In many cases, parents are happier with the outcome when they can reach negotiated agreements with the help of their lawyers instead of leaving the decisions up to the court.

After reviewing the best interests of the child factors, the court might issue any of the following orders:

  • One parent could be granted sole legal decision-making authority and sole parenting time with limited or supervised visits for the other parent.
  • Each parent could be granted sole decision-making authority over different types of decisions with shared parenting time.
  • Both parents could be granted joint parenting time and shared decision-making authority.

In some cases, the parents will not be able to agree on parenting time and decision-making authority. If this happens, the court will listen to the evidence and issue orders about the issues for which the parents were unable to agree. When the court makes the decision, the judge will follow the best interests of the child standard.

What is Arizona’s standard for Best Interests of the Child?

The best interests of the child standard are codified at A.R.S. § 25-403, which includes the factors that the courts are expected to consider when they make custody decisions. The factors that the courts must consider when determining what is in a child’s best interests include all of the following:

  • The relationship the child has had with each parent in the past, the relationship that the child has with each parent currently, and the potential future relationship that the child might have with each parent;
  • The relationship that the child has with each parent, any siblings, any stepsiblings, and others in the home;
  • How well the child is adjusted to his or her current home, community, and school;
  • If the child is old and mature enough, the child’s wishes;
  • The physical and mental health of all of the parties;
  • In all cases that do not involve domestic violence or abuse, whether one parent is likelier to encourage a continuous and meaningful relationship between the child and the other parent;
  • Whether a parent misled the court intentionally;
  • Whether child abuse or domestic violence has occurred;
  • Whether one parent used duress or coercion to secure a parenting time agreement;
  • Whether the parents have completed the required parenting classes;
  • Whether a parent has been convicted of falsely reporting child abuse;

In any child custody dispute that is handled by the court, these are the factors that the judge will be required to consider before making his or her decisions. When custody is disputed, the judge will also be required to make specific findings of each of the relevant factors that led to his or her decision.

You need to keep the factors that the courts consider in mind when you try to negotiate with your child’s other parent about parenting time. The factors can help to give you a better understanding of whether the court might grant you primary custody in a contested hearing. You can also use the factors to help to shape your parenting plan.

Joint vs. Sole Parenting Time and Legal Decision-making Authority

In Arizona, the courts are not supposed to have a preference for one type of custody. This means that a judge should not prefer joint vs. sole custody but should instead make his or her decision based only on what is in the best interests of the child. Under A.R.S. § 25-403.01, courts can award joint or sole legal decision-making authority. When they make their decisions about the type of custody to order, they are supposed to consider all of the best interests of the child factors as well as the following factors:

  • Whether the parents have an agreement about joint decision-making
  • Whether the lack of an agreement is due to something that is not included in the best interests of the child factors
  • The parents’ ability to cooperate when making decisions that will affect their child
  • Whether joint decision-making is logistically feasible

If a parent is granted sole decision-making authority, he or she does not have the power to change the court-ordered parenting plan on his or her own. Legal decision-making authority allows the parent or parents to make important decisions about their child’s education, religion, and health care.

If a parent has sole decision-making authority, he or she will not have to talk to the other parent before making a decision. If the parents share decision-making authority, they must consult with each other before making decisions for their child.

Parenting Plans and the Best Interests of the Child Standard

Under A.R.S. § 25-403.02, parents who are able to reach parenting-time agreements can submit a stipulated parenting plan to the court. The court will then issue the plan as the court’s order. If the parents cannot agree to a plan, they can each submit a proposed parenting plan for the court to consider. The court cannot have a preference for one plan over the other based on the parent’s gender.

Parents who do not agree on a plan will need to submit proposed plans about the decision-making authority of each parent for the child’s medical care, religious upbringing, and education.

The parenting plan should also include a schedule with details about where the child will be during vacations and holidays. They should also include a proposed schedule for visitation and how disputes will be resolved.

The plan should include information about how violations will be handled and provide for reviews of the plan. Each parent will have to sign a notice and agree that they understand that joint parenting time is not necessarily equal.

Child Custody Modifications and the Best Interests of the Child

Under A.R.S. § 25-411, a parent can file a request to modify a previously issued child custody order with certain limitations. People cannot ask for a modification of a previously issued order unless at least one year has passed since the previous order or something has happened that makes the court believe that the child is in imminent danger in terms of his or her emotional, physical, or mental health.

The court might also modify an existing order if child abuse or domestic violence has happened since the original order was issued, one or both of the parents have violated the order, or the custodial parent’s military deployment calls for a modification of the order.

Like other child custody issues, the court will consider the best interests of the child factors when deciding whether to grant the requested modification.

Get Help from the Custody Attorneys at the Schill Law Group

The experienced family law and child custody attorneys at the Schill Law Group can help you to understand the best interests of the child standard and how it might apply to your situation. We can help you to decide the type of custody arrangement that might work best for your family. Our child custody attorneys are skillful negotiators and might help you to resolve your outstanding disputes about custody and parenting time.

While reaching a negotiated parenting plan is often the best way to resolved child custody disputes, there are some cases in which litigation is more appropriate. For example, if there is a history of domestic violence, child abuse, drug abuse, or mental health issues involved in your case, it might be better to litigate the case through a contested hearing.

Our attorneys can help you to figure out the approach that you should take. Contact us today to schedule a free consultation by calling us at 480.525.8900.

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Legal Separation vs. Divorce in Arizona

Legal Separation vs. Divorce in Arizona

by | May 31, 2020 | Divorce, Legal Seperation

Defending the People of Arizona

With more than 100 Years of combined experience

Legal Separation vs. Divorce in Arizona

Some couples in Arizona are not sure that they want to go through with a divorce while others want to remain married but be separated for a variety of reasons. Legal separation is an alternative to divorce for some people. People sometimes decide to seek a legal separation rather than a divorce because of finances, religious concerns, health insurance coverage, or the potential to reconcile at a later time.

If you are thinking about getting a legal separation from your spouse, the family law attorneys at the Schill Law Group can help you to determine whether a separation might be a good choice for you instead of a divorce.

What is the Difference Between Legal Separation and Divorce?

A legal separation has many similarities to divorce in Arizona. In both types of cases, the spouses will have separated their finances and community property and will live apart. Issues of child custody, visitation, child support, and spousal maintenance might also be decided.

However, the main difference between a legal separation and a divorce in Arizona is that people who are legally separated are still married. By contrast, a divorce terminates the marriage.

To get a legal separation, both parties must agree to pursue it. Under A.R.S. § 25-313, if one spouse objects to the legal separation, the court will order the pleadings to be amended to seek a dissolution instead of separation. By contrast, only one spouse has to agree for a divorce case to proceed under A.R.S. § 25-312 as long as the court finds that the marriage is irretrievably broken. Since Arizona is a no-fault state for regular divorces, this means that a divorce can be granted even if only one party wants it.

The legal procedure that is required to get a legal separation or a divorce is very similar. Both will require the filing of a petition. The petitioner will then need to serve the documents on the other party. The respondent will be able to respond to the petition. As long as both parties agree to the legal separation, they will negotiate with each other to try to reach a settlement agreement for the division of property, child custody and visitation, spousal maintenance, and child support.

If there are outstanding legal issues in dispute, they can be litigated in court. Eventually, a decree of legal separation can be issued. Legal separation and divorce cases also have identical residency requirements.

When a couple receives their decree of separation or dissolution, they will no longer have a community property relationship with each other. There will be both financial and physical separation. A legally separated couple will still be married and unable to marry other people, however.

Why Choose Legal Separation Instead of Divorce?

Couples choose legal separation instead of divorce for several reasons. While legal separation will end the financial relationship between the spouses, and they will live apart, they will still be married. Some spouses choose to do this because of health insurance reasons. For example, the spouses might agree to a legal separation when one spouse is on the other’s health insurance policy and is unable to get a separate policy.

Some people choose legal separation because of their religious beliefs. Others might choose legal separation as a trial to see if they truly want to divorce or if reconciliation might instead be possible.

How Long does it Take to Become Legally Separated in Arizona?

Under A.R.S. § 25-329, the waiting period for a legal separation or divorce is 60 days after the petition has been served by the petitioner on the respondent. This is how long it can take if both parties agree to everything, take their required parenting classes, and file all of their documents early.

If a case goes through litigation, however, it can take one year or longer. Cases that are resolved through mediation might take up to four months.

6 Things to Consider When Deciding Between Legal Separation or Divorce.

There are several factors that you should consider when you are trying to decide between legal separation or divorce. Thinking through each of them might help you to determine which process might be a better choice.

1. Your ability to remarry

If you and your spouse agree to a legal separation, you will still be legally married. This means that neither one of you will be able to marry someone else. If you choose to get divorced, either one of you will be legally allowed to get married again. While it might be hard to think about getting married again, you might feel very differently later.

2. Potential for reconciliation

Some couples choose legal separation because they think that it might be possible for them to reconcile later. If you and your spouse are going through difficulties and feel like time apart might be beneficial, a legal separation might be a good option. However, reconciliation will likely take some work and a willingness of both spouses to go to therapy.

If you are both willing to do this, getting a legal separation while you try to work things out can help to resolve some issues during the time that you live apart.

3. Not being emotionally ready for divorce

Some couples need to use legal separation as a step on the way to divorce. For these couples, a legal separation might allow them to work through their emotions until they are prepared for the permanent nature of getting divorced. If you are not emotionally prepared for divorce but know it is something that you will need to face in the future, you might prefer to get legally separated until you are ready.

4. Religious considerations

One of the primary reasons that couples choose to get legally separated instead of divorced is religion. If your religious beliefs do not allow you to go through with a divorce, a legal separation might be an option. However, your spouse will need to agree to a separation.

5. Health insurance

Some couples choose to get a legal separation because one spouse might not have access to insurance on his or her own. For example, if your spouse relies on your health insurance and has medical issues, you might decide to pursue a legal separation so that he or she can maintain his or her health coverage.

If you choose to divorce instead, your spouse will need to find health insurance on his or her own. In some cases, COBRA might allow a spouse to have some time to look for coverage. COBRA coverage can be very expensive, however.

6. Children and legal separation vs. a divorce

Children might find their parents’ legal separation to be just as difficult as if they got divorced. Whether you choose to pursue a legal separation or a divorce, you should expect it to be hard on your children. You and your spouse should keep the best interests of your children in mind in all of your decisions. Never say negative things about each other to your children or in front of them.

If you and your spouse believe that you will be able to reconcile, you can tell your children that you need to live in different places for a while. Your children should be told that the decisions that you make are not their fault and that you and your spouse still love them. If your marriage ultimately fails, your children will have time to get used to the new circumstances and potentially more able to handle your divorce. If reconciliation is not likely, you should be honest with your children. You do not want them to have false hopes that you will reconcile.

Deciding to Move Forward with Divorce, Schill Divorce Attorneys can Help.

Deciding to divorce or separate can be difficult. While you or your spouse might be against the idea of legally separating or getting divorced, it is important to understand that if either of you want to get divorced, it will move forward. Talking to an experienced family law attorney at the Schill Law Group might help you to sort through your thoughts and determine which process might be better for your situation and your family.

If you and your spouse opt for a legal separation, you can always convert it to divorce later.

The decision of whether to pursue a divorce or a legal separation is personal. Seeking the advice of a family law attorney is advisable in either case. To learn more about these different processes, contact the Schill Law Group today to schedule a consultation by calling us at 480.525.8900.

 

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Arizona Community Property Laws – Who Gets What?

Arizona Community Property Laws – Who Gets What?

by | May 18, 2020 | Annulment, Divorce, Legal Seperation

Defending the People of Arizona

With more than 100 Years of combined experience

Arizona Community Property Laws – Who Gets What?

When you go through a divorce in Arizona, you and your spouse will have to divide your property and debts. How your property will be divided will depend on when it was acquired and whether you have a prenuptial or postnuptial agreement in place.

The attorneys at the Schill Law Group can help you to understand the community property laws of Arizona and advise you about the potential tax consequences and other issues that might arise during the property division portion of your case.

How is Property Divided in Arizona Divorces?

While some states are equitable division states for divorce cases, Arizona is what is known as a community property state. Under A.R.S. § 25-211, all of the assets and property that are accumulated during your marriage are considered to be community property with the following exceptions

  • Property that one spouse inherits
  • Property that is given as a gift to only one spouse
  • Property that is obtained after a divorce or separation petition has been filed

[1] Community property is considered to be equally owned by both spouses. This means that the community or marital property will be divided equally between each spouse during the property division portion of the divorce.

How are Debts Handled in a Divorce?

Like the assets that you accumulate during your marriage, the debts that you and your spouse have accumulated are also considered to be community debts and subject to division in your divorce. Handling the division of debts in your divorce can raise some important issues.

If the judge orders that your spouse is responsible for repaying a debt that has both of your names on it, your credit score can be harmed if your spouse fails to pay it on time. This is because your creditors are not parties to your divorce case, and they are not required to follow the family court’s orders.

If you have joint debt with your spouse, you should try to either jointly pay them off before your divorce is finished. If that’s not possible, you should contact the companies to try to get your name removed.

If your spouse is allocated the responsibility for repaying a jointly held debt after your divorce but fails to fulfill his or her obligation, you will need to repay it yourself to avoid damage to your credit.

You can file a motion with the court to hold your spouse in contempt for failing to meet his or her obligations to seek reimbursement for the amount that you had to pay for the debt that was allocated to him or her.

What is Separate Property?

Under A.R.S. § 25-213, the separate property includes the property and liabilities that each spouse brought into the marriage. It also includes inheritances that are received by one spouse and gifts that are given to only one spouse during the marriage.

Separate property is not subject to division in a divorce and instead remains the sole property of the spouse who owns it. However, property that becomes commingled with the marital property during a marriage may lose its separate nature and be included in the marital estate.

For example, if one spouse inherits money, deposits it into a joint bank account, and uses some of the funds to pay for bills and other items during the marriage, it might be considered to be commingled with the marital estate and subject to division.

If a spouse who inherits money instead keeps it in a separate account and does not use it to pay for community debts, it should retain its separate nature and avoid being divided in a divorce.

What is the Effect of a Prenuptial or Postnuptial Agreement?

A prenuptial or postnuptial agreement is a legal agreement that both spouses enter into either before or after their marriage. Prenuptial agreements have become more popular. If your fiancé presents you with a proposed prenuptial agreement, you should consult with a family law attorney at the Schill Law Group before you agree to sign it.

A prenuptial agreement may be used to waive your rights to certain types of property in the property division of any future divorce. It can also be used to waive your right to seek spousal maintenance.

If a prenuptial agreement is in place, it could prevent you from getting some of the assets that would otherwise be considered to be marital property in your divorce. For example, if your spouse had a business before your marriage, you may not be able to get your portion of the increased value of the business in your divorce if you waived your rights to it in a prenuptial agreement.

A Phoenix divorce attorney at the Schill Law Group can review a prenuptial agreement to determine whether it is valid and how it might affect your rights. If the agreement was not entered into or drafted correctly, the court may disregard it and order the community property to be divided between you and your spouse as if it did not exist.

A prenuptial agreement can be challenged and might be set aside by the court for the following reasons:

  • You entered into it involuntarily.
  • Your spouse failed to disclose the extent of his or her assets.
  • The prenuptial agreement was unconscionable at the time that it was drafted.
  • The prenuptial agreement resulted from fraud, coercion, or duress.

Proving that a prenuptial agreement should be set aside will require some investigation and evidence. If it is set aside, you will then proceed with a normal property division in your divorce.

It is important to note that a prenuptial agreement will not be set aside simply because you made a bad deal or that your circumstances have changed since you signed it.

What Happens if a Spouse is Concealing or Hiding Assets?

In some divorces, one spouse will try to hide his or her assets, transfer them to others, or spoliate them simply to prevent the other spouse from getting his or her fair share. If you believe that your spouse is hiding assets to prevent you from receiving what you should, working with an experienced attorney is important.

A lawyer can work with forensic accountants and other experts to locate assets that your spouse has hidden. If it is impossible to locate everything, your attorney can present evidence to the court and ask for the judge to draw an adverse inference based on your spouse’s conduct.

Have an Aggressive Phoenix Divorce Attorney on Your Side.

Dividing your property and debts in a divorce can be complicated. If you have been married for years and have accumulated substantial assets, the process can be even more complex.

The attorneys at the Schill Law Group have handled hundreds of complex divorce cases and are experienced in handling all types of property division matters. Contact us today to schedule a consultation by calling us at 480.525.8900.

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High Net Worth Divorce in Arizona

High Net Worth Divorce in Arizona

by | May 4, 2020 | Alimony, Annulment, Divorce, Legal Seperation, Parenting, Paternity

Defending the People of Arizona

With more than 100 Years of combined experience

High Net Worth Divorce in Arizona

When younger couples get divorced in Arizona, the process may be fairly straightforward because they may not have had much time to accumulate very many assets. However, if you have been married for a long time and have built substantial assets during your marriage, you may have to go through a type of dissolution called a high net worth divorce.

This type of divorce can be very complex because of the different types of assets that may be involved. High net worth divorces may involve complex asset classes and holdings worth hundreds of thousands up to millions of dollars. People who go through these types of divorces will likely need to get the help of a competent family law attorney who is experienced in handling high net worth divorce cases.

The Schill Law Group understands complex asset and debt division matters and is prepared to help.

How is a High Net Worth Divorce Different from a Regular Divorce?

A high net worth divorce will frequently involve complex legal and business issues that are not involved in regular divorces. High net worth couples may have vastly more extensive assets, including businesses, real estate holdings, art collections, trusts, stocks and bonds, investment accounts, retirement accounts, jewelry, and more. All of these types of assets may need to be identified, located, and valued to accomplish an appropriate division of property.

Under A.R.S. § 25-211, Arizona is a community property state.[1] This means that all of the assets that you have accumulated during your marriage that are not deemed separate property are considered to be equally owned by both spouses and subject to equal division. In many high net worth divorces, however, there may be antenuptial agreements in place.

High net worth divorces are likelier to include disputes about whether certain assets should be considered to be separate or community property.

How are Trusts Handled in High Net Worth Divorces?

Some wealthy couples have trusts established to hold substantial amounts of their assets. The handling of the assets of a trust can be crucial for the outcome of the property division in a high net worth divorce. When a spouse funds a trust with community property, it can transform the assets in the trust from being considered to be the separate property of that spouse to being considered to be the community property of both spouses to be divided in the divorce.

Normally, a trust that was created by a third party to benefit one spouse but not the other will be considered to be the beneficiary spouse’s separate property. The other spouse might argue that the court should consider the trust when it determines the amounts of spousal and child support that the other spouse should be granted.

When a trust is involved in a divorce, an attorney will need to seek disclosure from the trust. This can be hard because trust accounts may be located outside of the U.S. Trustees for U.S. trusts will normally send disclosures in response to a request. Offshore trusts might have trustees that fail to respond. When that happens, you might have to file a petition with that country’s court to seek an order for the trustee to provide disclosures.

How are Businesses Handled in Divorces?

Many high net worth divorce cases involve private businesses. When a private company is owned by one of the spouses, multiple complex issues will need to be addressed. The business will need to be properly valued. If the company has assets that are spread around the world, the valuation will be more complex. Often, business valuations will require significant investigations and the work of forensic accountants.

After a business valuation is completed, the divorcing couple will then need to determine how to distribute it in the property division portion of their divorce. One spouse may not be willing to give up his or her interest in the company. The spouse that wishes to keep control of the company might need to give a larger portion of the other assets to his or her spouse to retain control of the business.

How is Real Estate Handled in a High Net Worth Divorce?

While a regular divorce might involve dividing the marital home, high net worth divorces may involve real estate holdings beyond the home. Wealthy couples might have rental properties, commercial properties, and vacation homes. An appraisal of each of the various properties that are owned will need to be completed to understand what their fair market values are.

Some of the real estate properties might be the separate property that one spouse brought into the marriage. Other properties might be community property. Finally, some separate real estate might become community property if marital funds were used to make improvements. All of these issues will need to be addressed to ensure a fair division of the property.

Types of Complex Valuations in a Divorce

There are multiple types of complex valuations that might be necessary for a high net worth divorce. Some of the types of valuations that might need to be completed include the following:

  • Retirement accounts
  • Investment accounts
  • Stocks and bonds
  • Jewelry
  • Art collections
  • Intellectual property
  • Real estate
  • Businesses
  • Yachts
  • Other valuable assets

Different experts might have to value the assets from within their fields and submit written appraisals. In some cases, each spouse will hire his or her experts to testify about how they arrived at their valuations.

Spousal Maintenance in High Net Worth Divorces

Under A.R.S. § 25-530, spousal maintenance is a type of support that may be ordered by the court in cases in which the divorcing spouses have a large income disparity. Spousal maintenance is in addition to any child support that might be ordered, and it is frequently at issue in high net worth divorces. However, some cases involve prenuptial agreements through which the lower-earning spouse may have waived his or her rights to spousal maintenance.

In those types of cases, the lower-earning spouses might challenge the prenuptial agreements’ validity and claim that he or she signed under duress. A lower-earning spouse might also claim that the wealthy spouse failed to disclose all of his or her assets, meaning that the lower-earning spouse could not understand the rights that he or she was waiving.

Managing tax implications involved with asset division

Many tax implications might be involved in high net worth divorces. Both spouses will need to consider credits and deductions that might be lost after divorcing. Spouses who will have to pay spousal maintenance are not able to deduct the payments on their taxes any longer, and spouses who receive spousal maintenance are required to report the payments as income on their tax returns.

Transferring certain assets in divorces can trigger tax consequences. Some of the illiquid assets that might involve tax issues include the following:

  • Brokerage account funds
  • 403(b) accounts
  • 401(k) accounts
  • IRAs
  • Stock options
  • Annuities
  • Thrift savings plans

To prevent tax consequences when transferring some of these illiquid assets, a qualified domestic relations order may need to be prepared. This might help people to avoid penalties and taxes on what is transferred.

Concealment of Assets During a Divorce

Unfortunately, some spouses try to conceal or hide assets to prevent their spouses from getting their rightful share in divorces. They might try to transfer assets to family members or friends, hide them, or spoliate the assets. Others simply do not disclose all of their assets. For example, they might have accounts that are not disclosed and transfer funds from disclosed accounts to make it appear as if they have less. They might also move assets to offshore locations or place community assets in trusts.

Whenever a spouse believes that the other spouse is concealing or hiding assets, he or she will need to get help from an experienced attorney. A lawyer might work with a forensic accountant to find assets that have been spoliated, hidden, or concealed. If it is not possible to determine the extent of the person’s actions, the court can draw an adverse inference against the spouse who has engaged in this type of behavior.

Schill Law Group Experienced High Net Worth Attorneys

If you have accumulated substantial assets during your marriage and want to get divorced, getting help from an experienced high net worth divorce lawyer at The Schill Law Group is important. Our experienced property division and divorce lawyers understand how to handle the complex issues that are frequently involved in these types of divorces.

Contact us today to schedule a consultation by calling us at 480.525.8900.

 

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Divorce and Kids: Steps to a Smooth Transition

by | Feb 19, 2018 | Child Support, Custody, Divorce, Legal Seperation, Parenting

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With more than 100 Years of combined experience

Divorce and Kids: Steps to a Smooth Transition

Divorce is extremely stressful, and things only get more complicated when there are children involved. For children, divorce can be confusing and scary. As a parent, it’s your job to make sure that as you and your spouse transition into a life separate from one another, your sons and daughters are able to make that transition as smoothly as possible. Here’s a look at a few tips for minimizing the amount of stress and anxiety placed on your children during the divorce process.

Hire an Attorney

The first step to keeping your divorce simple and stress-free for your kids is to hire a divorce attorney right from the get-go. Schill Law Group has worked with countless individuals and families going through the divorce process and understands what it takes to create a safe and nurturing environment for children after their parents have separated. Our team can work with you to come to an agreement with your ex with regards to legal custody of the children, living arrangements, child support, visitation schedules, and more. Having an attorney work with you on these types of arrangements is a critical part of keeping things civil between you and your former spouse so that your children can transition into this new way of life without fear and anxiety. Working with legal representation helps to remove much of the emotional turmoil and drama so that you can focus on what’s truly best for the kids.

Establish Paternity

When a child is born, there’s no question of who the mother is. Even in committed, long-term marriages, though, paternity can come into question. Without legally establishing paternity, a father may find himself stripped of his parental rights. Conversely, without the legal establishment of paternity, a mother may be forced to grant visitation to a man who is not legally the father of her child. It’s a good idea to go through all of the proper channels and legally establish paternity in order to guarantee that no problems arise as the result of your failure to do so.

Obey Court Orders

Once the court makes a ruling about custody, visitation (or “parenting time”), and/or child support, you must comply with this ruling. Even if you disagree with the decision that was initially made, you should never violate a court order as this can lead to much more trouble. Trying to keep your kids longer than the allotted visitation period, for example, could result in a kidnapping charge or you could be held in contempt of court. This is very traumatic for your children and could result in your inability to spend any time with them at all. Failure to pay child support in full and on time, too, is a huge mistake. You may believe that the amount is unreasonable, but that doesn’t mean that you can make the decision not to pay. This is harmful to your children and could lead to penalties. It’s imperative that you always go through the court and petition for changes to be made to the ruling instead of doing whatever you believe is right and fair.

Work Together

Wherever possible, it’s always in the best interest of you and your children to work to cooperate with your ex and keep communications open at all times. Your relationship with your ex will impact your children whether you realize it or not, so try to work together and keep things civil. Trust us – though it may be difficult with some couples, we urge you to grin and bear it for everyone involved.

If you’re going through a divorce with children, you absolutely need someone on your side. The Schill Law Group is experienced in this area and is ready to help you today. Reach out to us for a free case evaluation.

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