Arizona is a community property state. That basically means that both parties have control of property earned or purchased during the marriage. (There are a number of exceptions to this but we’ll save that for other articles). The law regarding this is A.R.S. §25-318, which states in part that the court shall “divide the community, joint tenancy and other property held in common equitably, though not necessarily in kind, without regard to marital misconduct.”
So what is the difference between an equitable division and an equal division? An equal division would be an even split of all property no matter what. An equitable division means that the court will look at what is just and fair in the circumstances. I represented a party in a Court of Appeals case on this subject. The Husband was given a large settlement for injuries he sustained prior to marrying. He took the settlement money and used it to purchase property, which he then placed in his and his Wife’s name. Husband testified that he never intended to gift a portion of the property to Wife and instead placed the property in her name rather than obtain a will because he believed it to be simpler. In the divorce Wife claimed that because Husband placed the property in her name she should receive half of the value of the property, which is what normally would happen according to our laws. However, both the trial court and the Court of Appeals held that the property was my client’s sole and separate property on grounds of equity.
A typical example of an equitable division that is not equal would be a short-term marriage in which one party placed items of considerable value in the other parties’ name. The courts generally do not want a spouse to get a windfall of property when the marriage is so short and the receiving spouse did little to deserve the property. However, please note that arguing for an unequal but equitable division is almost always a risky proposition and you have to have your case clearly laid out to get a judge to side your way.
If you need help with an equitable division of property please call our experience divorce and family law attorneys t (480) 833-1113. We can help!
Attorney Profile: Joshua R. Boyle, Arizona Divorce Attorney
The holidays are a wonderful time to spend together as a family and make lasting memories for children. Unfortunately, without fail, every holiday season I have clients call me with some sort of urgent parenting time issue. Instead of children getting the opportunity to be children during the holidays, they are often thrust in the middle of these parenting time battles. As an experience parenting time attorney I’d like to offer some advice for how to reduce the conflict and make the holidays as great as possible for you and your children.
1. Plan ahead.
Many people find the holidays sneak up on them. Ideally you should have the holiday parenting arrangements worked out months in advance. Start thinking now about whether you are going to be staying in town or going elsewhere. Email or call your ex-spouse and discuss your holiday plans. Don’t discuss plans with your children if you haven’t reached an agreement with your ex-spouse as you may end up disappointing them. Also, please know that the courts are especially backed up around the holidays. If you are going to request a hearing to deal with a holiday parenting time dispute, the closer you are to the holiday the less likely it will be heard before the holiday has come and gone.
2. Be willing to compromise.
Some parents have such a history of distrust and lack of cooperation that their first response to any request from their ex-spouse is “No.” Consider agreeing to allow additional time in exchange for you receiving additional time for a different holiday or the same holiday the next year. If your ex-spouse asks for the whole Thanksgiving holiday weekend for a special family trip, then consider compromising and asking for the same extended weekend the next year. Or perhaps you would like a week over the 4th of July. You can then start saving up for the trip and discussing plans with the children. Although it may be sad to not see them on a particular holiday, being able to relax and have fun with them for a longer duration another time should more than make up for it.
3. Make sure you have a specific parenting time plan.
There is no way to understate how important it is that you have a clear and definite parenting plan. Many parenting plans are basic and say things like: “Mother shall have the children for Christmas in even years and Father will have the children for Christmas on odd years. “ What does that really mean though? Consider instead having a designated start and stop time, for example: In even years, Father shall have the children on Christmas Eve from 10:00 a.m. until Christmas Day at 10:00 a.m. Mother shall have the children on Christmas Day at 10:00 a.m. until December 26th at 10:00 a.m.
If your parenting plan lacks specifics or is outdated, or if you have any questions regarding holiday parenting time, we have experienced family law attorneys here to help you, give us a call at (480) 833-1113.
I am incredibly grateful for our armed forces service members, and it has been my privilege, as an Arizona family law attorney, to represent a number of them in family law matters. Cases involving members of the military are often an amalgamation of state and federal laws, which can lead to even more issues in court. While many of our judges have a general knowledge of some of the special rules affecting service members and their families, you cannot assume that they have all of the information to make the correct decisions.
As a divorce attorney in Mesa, Arizona the one thing I know for sure, divorce is hard. It is the end of something that usually began with the best intentions and a bright future. For some people it is an emotional relief but for most it brings about a lot of pain. I’ve been cheated on and I’ve had my heart broken before. It is awful. Friends and family tried to help by offering little sayings such as, "There are plenty of fish in the sea. Time heals all things. It’s for the best. You were too good for her." If anything those sayings usually made me feel worse.
Dr. Sheri Meyer, a psychologist and marriage and family therapist, offers a number of helpful tips to get through the emotions of a break-up in her online article ‘It’s Over!’ 10 Breakup Survival Tips to Get You Through It.
A few of these include:
- Don’t overeat or self medicate with drugs, alcohol, cigarettes or coffee.
- Get plenty of sleep
- Let yourself feel your feelings instead of trying to repress them
- Remind yourself of the things you’re grateful for
- Give to others
Another tip I have that I’ve found helpful myself and with my clients is to stop seeking out information about your ex. In the digital world we live in, it is often easy to find out what your ex is up to, who he/she is dating, etc. Don’t go to your ex’s blog. If you’re friends on Facebook, defriend your ex and don’t check on his/her page if it is public. (There are other reasons to be wary about Facebook during a divorce as I’ve explained in my previous article "Facebook as Evidence in Family Law Court? Sustained!". You likely have many mutual friends and family member; don’t ask them how your ex is doing. By constantly seeing how your ex is moving on in life, you reopen the wound. It is hard but make a commitment and stay away. You need to move on.
As an attorney, I can guide someone through a divorce and make that part as stress-free as possible by handling the court deadlines and dealing with the other party. However, during or after the divorce process, you may also want to consider a personal counselor to help you get through the mix of emotions. One thing that I’ve found has been true of all of my clients is that they are stronger than they know. You will get through the divorce and there will be happy times again.
In well over half of my consultations I get asked whether there is an advantage to filing first for divorce in Arizona. The answer is no. The question stems from a fear that it may be socially unacceptable to seek a divorce. Arizona is a “no fault” divorce state, which means that to get a divorce, you do not have to prove that one party or another did something wrong. Understand that the judge who will decide your case has likely seen thousands of divorces before he or she sees yours. It is highly unlikely that the judge will make a judgment call about the person who first filed for the divorce simply because that person filed first. (I would guarantee that the judge will not think that way, but any good divorce attorney will never guarantee what a judge will think or do.)
There are a few things to be aware of if you file for divorce first. If you file first, you are the “Petitioner” in the case and your spouse will be the “Respondent”. In an Arizona divorce court the Petitioner pays a filing fee to the court of $321.00 while the Respondent pays $256.00 when their response is filed with the court. In court the Petitioner is expected to present his/her case first. Some divorce lawyers may prefer to go first or second, a good family law attorney however will be able to present a case well, regardless of the order he/she presents.
If you are facing the difficult decision of whether to file for divorce in Arizona, please call our office at 480.833.1113. We have several experienced divorce and family law attorneys who can answer your questions, and help you decide how best to proceed with your personal case.
I had an individual come see me who had represented himself in his divorce. He agreed to take all the debt and in exchange he would receive all the personal property. He thought that “personal property” included his retirement accounts. It did not and he ended up with all the debt and still had to divide his retirement accounts with his ex. By the time he came to see me his divorce had been finalized for months and there was nothing I could do.
Here are a few general guidelines to consider when deciding whether you need an attorney or not:
- Is the other side represented by an attorney?
If neither party is represented by a divorce attorney, the judge may be somewhat more lenient on the rules of evidence and what he/she will allow in the courtroom. If one party is represented by a divorce lawyer, the other party is usually doing a big disservice to his/her case to not hire their own divorce attorney. There are many deadlines in Court that if missed, can have a powerful effect on your case.
- Can your spouse afford an attorney but you cannot?
If your spouse controls all the money and you do not believe you will be able to afford an attorney, it is possible for the judge to order that your spouse pay your attorney’s fees before you even go to trial. You should speak to a family law attorney to see if this is a viable possibility for you.
- Have you fully considered the long terms effects of your agreements?
Even if you and your spouse are amicable and agree on how to divide everything and/or share decision making, child custody and parenting time, I strongly recommend that you have an experienced divorce attorney draw up your final documents for the court. Go over the agreement with the attorney so that you can make sure that you understand the implications of all of your agreements. For example, maybe you and your spouse are agreeing to split all the holidays with the children. While it may seem like that will not be a problem, what happens when it is Christmas Eve and you think it is your year to have the children? What will you have to show your ex spouse that it should be your parenting time and what time your parenting time is supposed to start and end?
If you are facing a divorce or a hearing in family court, set up a consultation with me or one of the family law attorneys at Rowley Chapman Barney & Buntrock. A little money upfront can give you some peace of mind and may save you thousands of dollars down the road.
Attorney Profile: Joshua R. Boyle, Arizona Divorce Lawyer