GRANDPARENTS’ RIGHTS IN ARIZONA

“Do grandparents have visitation or legal decision-making rights rights in Arizona?” It’s a question that we hear often. And the answer is: “Yes.” There has never been a time when grandparents were more important to the well-being of children than today. Grandparents have always been intimately involved in the lives of their grandchildren, and today they are raising grandchildren in greater numbers than ever before. There are many reasons for grandparents having to step into the shoes of a parent. The list includes teen pregnancy, substance abuse, incarceration, financial difficulties, mental illness, and other problems. Even under the best of circumstances where the parents are capable caregivers, the presence of grandparents in the children’s lives brings an added sense of love and stability.

But these are complicated times, and our law firm receives calls just about every day from loving grandparents who are being excluded from their grandchildren’s lives and want to learn about grandparent rights. It could be because a parent is angry and seeks to punish the grandparent. It could be because a parent who is on drugs or was missing now returns and insists on taking the children back. Maybe it’s because a parent has remarried and the new husband or wife feels threatened that the children have a relationship with the former spouse’s parents. Or it might be that one of the parents has died, and the surviving parent wishes to move on and put the deceased parent and his family in the past. There are a myriad of reasons why loving grandparents may be cut out of the picture and left in the cold. It’s truly heartbreaking for the grandparents. But, in the long run, it is the children who suffer the most.

In Arizona, grandparents (and other third-parties with a close relationship to the children, such as step-parents and others) have legal rights. Arizona Revised Statutes, Section 25-409 is the Grandparent Visitation, Grandparent Custody (now referred to as “legal decision-making authority), and Third Party Visitation / Custody statute.  The statute lists the circumstances which would enable a grandparent or other non-parent to file a petition for visitation or custody; as well as the factors that the Court must consider in determining whether to grant the petition.

This is not an easy process. In making its decision, the Court must weigh the constitutional right of parents to raise their children as they see fit – against the benefit to the child of maintaining an ongoing relationship with a grandparent or other non-parent that the child loves, and with whom he or she has a close bond. The Court is required to give “special weight” to the parent’s decision. But if the judge feels that it would be in the child’s best interests to maintain a relationship with the grandparents (or other non-parents), and the child’s interests would be substantially harmed if that relationship were severed, then the Court has the authority to order visitation to take place. And if it is determined that all of the factors listed in A.R.S. §25-409(A) are present and it would be “significantly detrimental” to the child to remain or be placed in the care of either legal parent, then the Court can order that the grandparents (or other non-parent) shall have legal decision-making authority (custody) of the child. A strong, experienced attorney can be a tremendous help to someone who is trying to obtain grandparent visitation or custody.

If you are a grandparent or a non-parent who has been (or might be) unfairly cut out of your grandchild’s life and you would like to learn more about how to assert your legal rights, please do not hesitate to give us a call. We’d be happy to talk to you.

 

Our attorneys, Gary Frank and Hanna Juncaj, represent many grandparents and other non-parents in Arizona courtrooms. They are strong litigators and compassionate counselors.  If you are in need of a consultation regarding how to assert your grandparents’ or non-parents’ rights, please call us today at 602-383-3610; or contact us by email through our website at www.garyfranklaw.com.

 

 

COHABITATION: IS LIVING TOGETHER OUTSIDE OF MARRIAGE PUTTING YOU IN ECONOMIC DANGER?

I have no moral objection to people living together outside of marriage. Heck, I grew up in the 60’s and 70’s. We practically invented the concept of “Cohabitation.”  As someone who has practiced Family Law for decades, I can tell you that a piece of paper does not ensure a lifelong commitment. And countless couples have a loving, lifelong bond even though they have chosen never to marry. The problem is that, after all these years, our lawmakers still haven’t gotten the message. And they fail to recognize that people who choose to share their life without a marriage license should still be able to share their property, and divide it fairly in the event of a breakup. This makes for some pretty unfair, and even economically dangerous, scenarios.
Most people think of marriage as having a moral or religious significance. But what many people don’t realize is that whether we like it or not, marriage also has a legalsignificance. And what you don’t know can hurt you. The fact is that the law provides certain protections for a married spouse that do not exist outside of marriage. And the results can be disastrous following the breakup of an unmarried couple.
Over the years, I have seen instances in which a couple breaks up after years of cohabitation, and one of them walks away with essentially all of the money and property while the other partner comes away with nothing. It’s heartbreaking. A legal marriage would have provided the protection that the vulnerable partner needed. But Arizona provides no protection for a cohabiting couple. Some states (like Texas) recognize “common law marriage.” Arizona does not. Other states (like California) provide some protection in the form of “palimony” (similar to alimony).  Arizona has rejected that theory. The problem is that couples who choose to live together outside of marriage are taking a legal risk when it comes to division of property and financial support.
Here are some of the pitfalls of being an unmarried, cohabiting couple:
COMMUNITY vs. SEPARATE PROPERTY
In Arizona, division of property following a marital breakup is governed by the old Spanish concept of “Community Property” Law. Under this legal concept, there are two kinds of property: Separate Property and Community Property. Following a legal separation or divorce, the husband and wife will each receive his and her separate property, and the community property will be shared equally. But if the parties are not married, there is no “community property.” That means nothing is shared, and the “richer” party – the one who actually purchased the house, the car, the furniture, etc. – may walk away with everything. Here’s why:
Separate Property:  Under Arizona law, separate property is anything a spouse owns before the marriage, and any property that he/she receives during the marriage by specific gift or inheritance. So, for instance, the husband’s old baseball card collection from childhood, or the family heirloom that Wife received as a gift from her grandmother – those things are separate property and will be awarded to the owner in the property division upon dissolution of marriage. If one of the spouses receives an inheritance of money from a grandparent during the marriage, the inheritance is considered separate property so long as it is kept separately or placed in an account in that spouse’s name alone. But if the money is comingled to the point where it can no longer be traced, such as being placed in a joint bank account that is used for salary deposits and payment of bills, it may lose its character as separate property and become “transmuted” (changed) to community property. Separate property also includes any increase that is tied to sale or appreciation of separate property. For example, if a spouse uses her separate funds to buy stock in a company, and the stock increases in value, the increase is considered separate property.

When a marriage is dissolved, the separate property will be identified and awarded to the spouse that it belongs to. All other property belonging to the parties is considered to be community property, and will be divided substantially equally.

However, if the parties are living together but aren’t married, then everything either party earns, buys, or acquires is considered to be the separate property of that person (unless the title is taken in joint tenancy or the acquisition is based on a partnership). There is no community property to be divided.

Community Property: Community property under Arizona law is defined as all property (other than separate property) acquired by either spouse during the marriage.  Under community property theory, each party owns the property equally. This means that whatever a spouse earns from his/her employment is community property, and anything that is purchased with monies earned by either spouse is community property. So, if a spouse cashes a paycheck and uses the money to buy a car, that car is community property and belongs to both spouses equally. If she or he opens a brokerage account using community funds and invests in stocks, bonds, or mutual funds, then that account, and all future growth, is considered to be community property and belongs to both spouses equally. Furniture purchased with community funds is community property. Money contributed to a pension, retirement account, or 401k by one spouse during a marriage is community property and belongs to both spouses 50/50. And if one spouse starts a business during the marriage, that business is also considered to be community property, even if only one spouse runs it.
Over the course of a lengthy marriage, couples can accumulate a large amount of community property. And if the marriage falls apart and the couple divorces, the community property will be divided between the parties essentially equally. This can provide financial security for the spouse who didn’t have the high paying job, or who stayed home and cared for the children while the other spouse acted as the breadwinner.
But here is the potential problem with cohabitation:  If a couple couple lives together but never marries, there will be no “community property” to divide if they later separate — and the law in Arizona does not provide any protection for the “poorer” partner. This can result in a terrible inequity. Imagine a couple who has lived together without marrying for twenty-five years. During that time, one of the partners purchased a business that became a successful and lucrative enterprise. With his earnings, he purchases a massive house in a gated community (which he puts in his own name) and furnishes it beautifully, and he buys expensive automobiles (also in his name alone). He puts money in investment accounts, and retirement accounts (all in his name). He buys life insurance policies, and paintings by famous artists. Finally, he opens a joint account which he places in both partners’ names, but he only deposits a little money each month to cover household expenses.
If the parties were married and filed for divorce under that scenario, then by law everything would be considered community property and would be divided equally. On the other hand, if the parties were not married it becomes an entirely different story. All of the property – the cash in banks, the house, the furniture, the cars, the business, the stocks and investment accounts, the life insurances policies, the valuable works of art – they’re all the separate property of only the one partner. The other partner gets nothing but half of the joint bank account, and there isn’t much money there, since only enough was deposited each month to pay for household expenses. So after all those years of living together as partners in a committed relationship, one party walks away with everything and will live the rest of his or her life in comfort. The other party gets nothing and will suffer financial deprivation.
Spousal Maintenance:
In many committed relationships – whether marital or cohabiting – one of the partners will take on the role of the breadwinner, while the other remains in the home and cares for the children. This allows the partner who is not the caregiver to focus on his/her career; to advance through the ranks of the business world, and increase his/her income and earning power over the years. This type of arrangement can work well, so long as the parents’ relationship lasts.  But what happens if, after 15 or 20 years the relationship deteriorates and parties separate? The working partner might now be earning hundreds of thousands of dollars a year, with the prospect of further advancement and an even higher income in the future. On the other hand, what becomes of the partner who gave up her/his career for the benefit of the family? That person might now be his/her 50’s, no longer a young up-and-comer. Because she or he jumped off the fast track to care for the kids, the prospect of a lucrative career is now gone, and she/he may be forced to take a job with an entry-level salary. How is that fair?
Arizona law provides protection for a married person under these circumstances. The married spouse who sacrificed for the family will be entitled to financial assistance from the other spouse in the form of Spousal Maintenance. The party with the greater wealth will be ordered to financially support the other party for a sufficient period of time to allow that party to complete an education or begin a career and get on her/his feet. (In rare circumstances, the court can require spousal maintenance be paid for the rest of the former spouse’s life.) In order to determine the amount that the person will receive, and how long the support will continue be paid, the judge will consider a number of factors listed in the statute. The amount of monthly spousal support will be dependent upon the lifestyle the family enjoyed during the marriage, the parties’ comparative incomes, the needs of the party seeking spousal maintenance, and a number of other factors.
But the obligation to pay spousal support only applies when the parties were married. Where parties were unmarried and living together, the richer party has no legal obligation whatsoever to help the poorer party financially after the relationship ends. This lack of legal protection can especially hurt a party who gave up her/his career to stay home and care for the children.
INHERITANCE & SOCIAL SECURITY
If a married person dies without a Will in Arizona, the surviving spouse will receive the entire estate of the deceased spouse.
On the other hand, if a person who is unmarried and cohabiting dies without a Will in Arizona, the scenario is much different. In that case, the deceased person’s property will be distributed by Arizona’s law of intestate succession – and none of it will go to the surviving partner. If the deceased person has children, then the entire estate will go to the children. If there are no children, then all of the dead person’s property will go to his/her parents; and if the parents are no longer alive, then the property will go to deceased person’s siblings. Unless the surviving partner’s name is on the house, or the car, or the bank accounts, the life insurance policy etc., then she/he will receive nothing at all.
There is a similar scenario for Social Security. If a married person dies, his/her spouse will likely receive a Social Security death benefit. But if the two parties are not married, then the surviving partner will receive nothing (although the children could receive a death benefit).
This may all seem unfair – and I agree that it is. But the bottom line is this: Under the current law there are important protections afforded to married couples that are not provided for unmarried couples who are cohabiting. Our lawmakers have turned a blind eye to the reality of relationships today and, at least in Arizona, it is unlikely that they will act to close the gap any time soon.
WHAT YOU CAN DO TO PROTECT YOURSELF
Obviously, marrying your partner is one way to protect yourself but, for many different reasons, not everyone wants to take that route in life. The good news is that there are other ways to provide protection. These include setting up joint bank accounts and having both partners deposit their paychecks; opening joint investment accounts; putting together your own IRA or retirement account and having the “richer” partner put an equal amount in yours as he/she puts in his/hers; putting your name on the house title, and the car title, in joint tenancy, so that you are half-owner; etc.
You can also protect yourself by entering into a written Domestic Partnership, or other partnership, agreement that spells out the rights of both parties and describes how property will be divided in the event that the relationship ends and the parties separate.

If you are living with a partner in a committed relationship outside of marriage, you owe it to yourself to consider whether you might be economically harmed if the relationship ends today, or even more importantly, twenty years from now.  It could mean the difference between living a comfortable lifestyle after a separation – or having to struggle financially and worry how you’re going to be able to make ends meet.

 

 

At the Law Firm of Gary J. Frank P.C., both Gary Frank and attorney Hanna Juncaj are strong litigators and compassionate counselors. Gary Frank is a Family Law Attorney with over 30 years of experience as a litigator and mediator, which includes having acted in the capacity of a Judge Pro Tempore in the Maricopa County Superior Court; and serving on the Governor’s Child Abuse Prevention Task Force. Hanna Juncaj is a highly-skilled attorney and mediator with a passion for Family Law and children’s issues. We handle Family Law cases in the areas of divorce, custody (now called “Legal Decision-Making and Parenting Time), relocation (move-away), division of property, spousal and child support, modification and enforcement actions, grandparent and non-parent rights, and all other matters pertaining to families and children. If you are in need of a consultation, please do not hesitate to call our office at 602-383-3610; or you can contact us by email through our website at www.garyfranklaw.com.   We look forward to hearing from you.

ARIZONA’S ABORTION CONTROVERSY, CIRCA 1962

With a new administration taking over, a renewed battle over abortion rights is likely to be waged in the U.S. Supreme Court over the next few years.  But in 1962, eleven years before the court decided the landmark Rowe v. Wade case, Arizona was at the center of a national firestorm regarding the issue of abortion.  The controversy raged around Sherri Finkbine, a local television host on the kiddie program, “Romper Room.”  I was a young boy at the time and, like many other children, I had grown up in Phoenix watching the show.  I still remember Miss Sherri, with her magic mirror, her pretty smile, and her soothing voice.

The problem began when Sherri’s husband came back from a trip to Europe.  Sherri was pregnant with her fifth child; and when her husband returned he brought with him a bottle of pills to treat her morning sickness.  Neither Sherri, nor her husband, were aware that the medication contained Thalidomide, a popular drug in Europe and other countries, but one which was not widely used in the United States.  During the early stages of her pregnancy, Sherri took thirty-six of the pills.

That’s when the nightmare began.  News reports began filtering into the United States that Thalidomide had been found to cause gruesome birth defects in fetuses.  The media reported that Thalidomide babies were being born without arms or legs.  Sherri and her husband checked the medication that she had been taking and were horrified to discover that it, indeed, contained the dreaded Thalidomide.  In an instant, their once-happy lives were turned upside-down. 
Sherri’s physician discussed the almost certainty of incapacitating birth defects that the child would be likely to suffer for a lifetime, and he strongly recommended that she obtain a therapeutic abortion.  Abortions were illegal in the United States.  The alternative, one which many women chose at the time, was to undergo a secret “back-alley” abortion.  These were often performed by unethical and incompetent doctors out to make a buck, and they were highly dangerous.  Some were performed by people who were not physicians, and who had no medical training at all.  As a result, it was common for women to contract infections and became seriously ill, or die, following abortions.  That was the landscape in 1962.

Therapeutic abortions were considered to be a narrow exception, and could be performed in hospitals by doctors under very limited circumstances.  Based on her doctor’s recommendation, Sherri prepared herself for a therapeutic abortion.  She was concerned that other women who were taking — or might take — Thalidomide should be warned, so before undergoing the procedure she contacted a friend who worked at a local newspaper and related her story.  Sherri was promised anonymity.  But when the newspaper article hit the streets, her identity was disclosed.  The hospital at which the abortion was planned became skittish and backed off.  Fearing bad publicity and possible prosecution, it canceled the procedure.  Sherri’s physician asked for a court order to proceed with the abortion, and that’s when all hell broke loose.

Overnight, Sherri Finkbine, her husband, and her four children became public figures.  She was fired from her job at the television station.  Her children were tormented and bullied mercilessly at school.  Letters and hate mail came pouring in from all over the country, including more than a few death threats.  Ultimately, the FBI was brought in to protect the family.

Now desperate and terrified, Sherri attempted to travel to Japan to obtain the abortion, but was denied a visa by the Japanese Consul.  In the end, she flew to Sweden, where a legal abortion was performed in the twelfth week of her pregnancy.  The Obstetrician who performed the procedure later told Sherri and her husband that the fetus had no legs, and only one arm, and was too badly deformed to be identified as a boy or a girl.

More than fifty years later, the controversy over abortion is still raging.  Our nation has become bitterly polarized over the issue.  Are you Pro Life?  Or Pro Choice?  Should women have the right to make decisions concerning their own body?  Or do the rights of the unborn child trump the rights of the mother?  Should abortion be legal in cases of rape, incest, severe birth defects, or where the mother’s life is at risk?  Or are we willing to return to the days of illegal and dangerous back-alley abortions? These are matters of utmost importance.  But instead of engaging in a healthy dialogue, battle lines have been drawn.  Foxholes have been dug.  And rather than welcoming a productive discussion, people on both sides angrily ridicule and demonize each other.  Each side views the other as stupid or evil.  Maybe it’s human nature.  We like to look for simple answers.  And by delegitimizing those with whom we disagree, we are able to avoid the process of having to carefully examine and think through the issues.  But that’s too bad.  Because if we truly attempted to see the matter through our neighbor’s eyes then – even though we may still disagree — we just might be forced to conclude that there can be more than one legitimate point of view, and maybe then we could reach a reasonable consensus. 

Regardless of the many differing opinions on the subject, I think most would agree that no woman should ever have to suffer the agony, or be faced with the impossible choices, that Sherri Finkbine had to endure in 1962.


Gary Frank


At the Law Firm of Gary J. Frank P.C., both Gary Frank and attorney Hanna Juncaj are strong litigators and compassionate counselors. Gary Frank is a Family Law Attorney with over 30 years of experience as a litigator and mediator, which includes having acted in the capacity of a Judge Pro Tempore in the Maricopa County Superior Court; and serving on the Governor’s Child Abuse Prevention Task Force. Hanna Juncaj is a highly-skilled attorney with a passion for Family Law and children’s issues. We handle Family Law cases in the areas of divorce, custody (now called “Legal Decision-Making and Parenting Time), relocation (move-away), division of property, spousal and child support, modification and enforcement actions, grandparent and non-parent rights, and all other matters pertaining to families and children. If you are in need of a consultation, please do not hesitate to call our office at 602-383-3610; or you can contact us by email at gary.frank@azbar.org, or through our website at www.garyfranklaw.com.   We look forward to hearing from you.

DIVIDING PROPERTY IN A DIVORCE – HOW THE ARIZONA FAMILY COURT DOES IT

One of the first and most vital steps in a divorce is figuring out the division of property.  Naturally, people want to know how Arizona courts will divide their property.  Below are some of the most commonly asked questions that I hear from clients:
How does Arizona divide property in a divorce?
All states are either community property states or equitable division states.  Arizona is one of nine community property states.  Community Property is based on the theory that a married couple is a team, and the role that each spouse plays benefits the team.  One may be the breadwinner, the other might care for the children; or they may both work and share the childcare responsibilities – but it’s a team effort.  Therefore, the law provides that income earned by either party, and anything purchased or accumulated with that income during the marriage, is considered to be community property, belonging to both parties 50/50.  If the parties later divorce, then the community property will be divided substantially equally.
How does the court determine what is Community Property versus Separate Property?
In a divorce, the court must determine what constitutes “Separate Property,”  and what constitutes “Community Property.”
Arizona Revised Statutes § 25-211 defines Community Property as all property acquired during marriage except for property acquired by gift, devise, or descent (inheritance).  This means that salary, bonuses, and commissions earned by each spouse through employment are community property.  Employment income placed in a bank account (regardless of the name on the account) is generally considered to be community property.  Stocks, bonds, and brokerage accounts accumulated during the marriage are community property. Houses and cars purchased with marital funds constitute community property (unless the other spouse signs a deed disclaiming his or her community property interest).  Furniture and personal items purchased with community monies will be considered community property, unless there is evidence that it was a gift. And monies contributed to pensions, 401k,’s IRA’s, and other retirement accounts during the marriage are considered to be community property.

Arizona Revised Statutes, § 25-213 defines Separate Property as anything acquired by a spouse before the date of marriage or after service of petition for divorce (if the divorce actually goes through).  Gifts and/or money received by way of inheritance during the marriage are also separate property.  All of the rents, profits, earnings, dividends, and interest on separate property remain separate property.

In other words, your old baseball card collection is separate property.   The Barbie dolls your mother saved from when you were a kid – separate property.  That family heirloom your Aunt Gladys gave you last Christmas – separate property.  The money your grandfather left you when he died – separate property.  The 60” TV and surround sound system you bought with that inheritance – separate property.  The stock you purchased with grandpa’s money (which went up 10% last year) – also separate property.  If you owned a house prior to your marriage, then rented it out after you got married — the rental income is your separate property.  If you later sold that house and used the money to buy another house in your own name – well, that new house is your separate property, too (even if you and your new spouse are living in it).

BUT WARNING:  If you’re not careful, what starts out as separate property can be magically changed into community property during the marriage – as will be explained below.

The “marital community” terminates when a spouse files and serves a Petition for Dissolution of Marriage, or an Annulment.  Thereafter, income earned by either party (which was considered to be community property) is now the separate property of the person who earns it.

What does the statute mean when it says the court divides community property “equitably”?
Equitable division does not always mean an equal division.  What it really means is a “fair” division.  The court is not required to divide community property exactly equally; but it cannot, without reason, create a gross disparity or make its award arbitrarily.  In the absence of sound reasons which justify contrary results, apportionment of the community estate upon dissolution of marriage must be “substantially equal.”
In making an equitable division, the court may consider the length of marriage as part of any unequal division. The court can also divide property unequally if it determines that one of the spouses wasted community assets (for example, if one of the spouses gambled away thousands of dollars, or spent community funds on drugs, etc.)
What happens if separate property is commingled with community property?
When community property is mixed with separate property, the potential issue of “commingling” arises.  Commingling happens when, for instance, a spouse puts the funds from her grandmother’s inheritance into a joint account that belongs to both spouses; or when a spouse’s salary from work (community property) is deposited into the checking account that he set up prior to the marriage in his own name (separate property).
Mixing separate and community funds makes for a confusing situation, and it can lead to the loss of your separate monies.  Funds that are mixed can retain their character as separate property, but only if you can still figure out what funds come from where.  You must be able to trace the separate assets.  However, when separate and community monies are mixed there is a legal presumption that the new “pot” of commingled funds is entirely community property.  The burden is upon the one claiming that the proceeds are separate property to prove, by clear and satisfactory evidence,” that the separate property portion can be traced. And this is no easy task.
Can property lose its character as separate property and become “transmuted” into community property?
Absolutely!  Here’s an example:  If you are depositing your separate funds into a community property account and, over time, you are writing checks, making deposits and withdrawals, etc. — eventually the separate and community monies will become mixed to such an extent that you can’t trace it or figure out what belongs to who.  At that point, it has undergone “transmutation.”  Your separate money has lost its character separate property.  It is now community property and will be divided essentially equally in a divorce.
Can a person unintentionally make a “gift” of separate property to the marital community?
Yes.  A common scenario is where a party contributes separate funds to pay a down-payment on a marital home that is taken in joint tenancy.  Years later, one of the parties files for divorce and, when the house is sold, the party who contributed the separate funds for the down-payment wants his/her money back, claiming that it was intended as a loan, and not a gift.
The necessary elements to find that a gift was made include: (1) donative intent, meaning that you intended to make a gift, (2) delivery, meaning that the gift was actually delivered to the other person’s possession, and (3) a vesting of irrevocable title upon such delivery, meaning that you delivered the gift with no intention of retaining any sort of interest in the piece of property any longer.
Under Arizona law, there is a presumption that contribution of separate assets to community property equals a gift.  The presumption can be rebutted through clear and convincing evidence showing that there was no intent to make the alleged gift.  But this is a steep hill to climb.  In the scenario above, rebutting the presumption of a gift will be extremely difficult without a written memo or other persuasive evidence of intent.
How can I protect my separate property?
Here are some ways that you can protect your separate property:
·      (1)  Keep your pre-marital monies in a separate bank account in your own name;
·      (2)  Avoid commingling;
·      (3)  If you are buying a house together and you are contributing your separate monies to the down payment, be sure to draft a written memo confirming your intention that the use of separate funds to pay the down payment (or any other payment) is a loan from the marital community and is to be paid back upon sale of the property – and make sure your spouse signs the memo;
·      (4)  Place your separate property in a living revocable trust;
·      (5)  Obtain “innocent spouse” status (the IRS provides this status to spouses to relieve them of the responsibility for paying taxes that the other spouse owes);

·      (6)  If you receive an inheritance, place the money in a bank account in your name alone, and do not mix it with community funds (for instance, make sure not to deposit your employment income into that account).

If you have substantial separate-property assets and/or if you do not want your employment income to be considered community property, then you would be well-advised to have an attorney prepare a valid Prenuptial Agreement (or a Postnuptial agreement, if you are already married).  The agreement will need to conform to the law and be signed by both spouses.

 

Our Family Law Firm is here to help you work through even the most difficult and complicated property division matters. Gary J. Frank is an Arizona attorney and former Judge Pro Tem with over thirty years of experience in dealing with custody and parenting time issues in Family Court.  Hanna Juncaj is a highly skilled litigator, a compassionate counselor, and a strong advocate for every one of her Family Law clients. To schedule a personal consultation with our attorneys, you may contact us by telephone at 602-383-3610, or by email through our web site at www.garyfranklaw.com.

The issues in this blog are provided general informational purposes only and should not be relied on as legal advice in your particular case, nor should it be construed as forming an attorney-client relationship.  Every Family Court case is unique.  If you have a matter that appears similar to any of the scenarios that you read in this blog, you should be aware that: (1) even a slight difference in a factual situation can lead to a vastly different result; and (2) the laws are constantly changing and new laws are continually being enacted.  Legal advice cannot be given without a full consideration of all relevant information relating to your individual situation.  Therefore, if you have an important legal issue, you should obtain a consultation with a qualified attorney.  


WHEN IT COMES TO FAMILY LAW, “THESE ARE THE GOOD OLD DAYS”

People seem to always pine for the “good old days.”  And, sure, there is plenty to complain about today, but America in 2015 is far more tolerant, compassionate, and evolved than at any time in U.S. History — or maybe even human history.

When I was growing up in the 1960’s . . . 

 Cohabitation was scandalous;

A female who had sex before marriage was a “slut” (but the same was not true for a male – after all, he was just being a guy);

Children born out of wedlock were referred to as “bastards” and were shunned by society through no fault of their own;

Interracial marriage was against the law in most states.  An interracial couple could be arrested, convicted, and sentenced to prison for the mere “crime” of falling in love and getting married;

Bi-racial children were shunned, too;

Interfaith marriage was considered an abomination – couples who married outside of their faith were often excommunicated from their church and disowned by their families;

Gay marriage was not even something people could dream about.  Sodomy laws were in place in every state, making homosexuality illegal.  And those laws were used to prosecute gays.  “Coming out of the closet” meant risking becoming the victim of societal abuse, both legal and physical;

Divorce was not just frowned-upon – the law made it almost impossible to get out of a bad marriage.  It was not enough to show that the parties were no longer in love or that they found it impossible to live together.  To obtain a legal divorce required a husband or wife to prove sufficient “grounds,” such as abandonment, abuse, or infidelity.  Women often came away from divorce impoverished, regardless of the lifestyle they enjoyed during the marriage.  And to be a divorced person, or a child of divorce, was seen as a public embarrassment;

Mothers were almost always awarded sole custody of the children by the divorce court.  And regardless of how active and involved a father might have been in his children’s lives – he was given only “visitation”;  

Domestic violence was rampant, as it is today.  But, back then, it was considered a parent’s right to keep his or her children in line by the use of corporal punishment, however severe.  And if a man chose to abuse his wife it was viewed as a family matter, and nobody else’s business;

Women had few employment opportunities.  “A Woman’s Place is in the Home” was not just a saying – societal rules were built to make sure that women remained economically helpless and subservient.  Universities had quotas for women and many jobs were off-limits, including executive-level positions in banks and corporations.  Women, no matter how capable and intelligent, were offered employment mainly as factory workers, teachers, administrators, or secretaries.  There was no “glass-ceiling” for women — instead, the ceiling was made of concrete.   So were the walls.  To break through those barriers took a herculean effort;  

For a father to stay at home and take care of the children was unheard of — it was not considered “manly.”  Fathers were locked into the role of “Provider.”  And being the sole source of income for the family was a responsibility that left little time for dads to be loving, nurturing parents to their children. 



Looking back on the “idyllic days “of the past is a fantasy.  The “good old days” weren’t really so good.  In fact, in many ways, life has never been better than it is right now.  

Want to know the truth?   These are the “good old days.”

Gary J. Frank is an attorney and mediator with over thirty years of Family Law experience in dealing in divorcecustody, and parenting issues. For many years he acted as a Judge Pro Tempore in the Maricopa County Superior Court, which gave him an insight into the inner workings of the courts that many attorneys lack.  In addition to representing Family Law clients in litigation, we are also willing to help people by working with them on a Limited-Scope or Consultation-Only basis.  Our office is located in the Biltmore area of central Phoenix, with satellite offices in Scottsdale and Paradise Valley, Arizona.  We can be reached by telephone (602-383-3610); or by email at gary.frank@azbar.org.  You can also reach us through our website at www.garyfranklaw.com.  If you are in need of a consultation regarding any area of Family Law, contact us today.  We’d be happy to help.

THE FIRST GAY MARRIAGE IN ARIZONA

It’s a groundbreaking decision.  The U.S. District Court, on Friday, ruled that Arizona must recognize the California marriage of Fred McQuire and George Martinez. 
Both McQuire and Martinez were Vietnam veterans who lived in Arizona.  First, McQuire was diagnosed with prostate cancer (caused by exposure to Agent Orange during his service in Vietnam); and in June of this year, Martinez was diagnosed with pancreatic cancer.  He was given only a few months to live.  The two had been partners for over 40 years and had made a lifetime commitment to each other.  With time running out, they traveled to California and were married.  They then filed an emergency motion asking the Court to require Arizona to recognize the marriage so that McQuire could be listed as a spouse on Martinez’s death certificate.  Martinez died on August 28, 2014.  The Court’s landmark ruling makes them the first same-sex couple whose marriage is legal in this state.
The Gay Marriage issue is more than a philosophical argument.  Marriage has important legal consequences.  A married spouse is entitled to protections not granted to someone who is cohabiting.  If you are married and your spouse dies, you could be legally entitled to a portion of your deceased spouse’s estate, and you may be entitled to veteran’s benefits and Social Security survivor’s benefits.  If you are married and file for divorce, you will be legally entitled to half of the community property accumulated during the marriage.  You may also be entitled to spousal support.  On the other hand, if you are cohabiting but are not legally married, you are entitled to none of these things.  If your partner dies you are not entitled to his/her veteran’s or social security benefits, and you have no legal rights to the estate unless specifically provided by a Will.  When a cohabiting couple splits up, there is no community property, and you will not be eligible for spousal support even if your role was to give up your job and stay home to care for the children for the past twenty years.
Among those opposing Gay Marriage is the legal group Alliance Defending Freedom, which represented the state of Arizona at the hearing.  Attorney James Campbell summed up their position with these words:  “The integrity of the state’s marriage definition, which has existed since the state’s inception is of the utmost importance.  It can’t change it, not even for one person.”  But that kind of twisted logic cannot withstand scrutiny.  Marriages between Blacks and Whites were illegal at the inception of Arizona’s statehood, too — and I’m sure there were those who argued that the prohibition should remain on the books because it had always been there, and that changing it would violate the sanctity of marriage — yet we had the good sense to invalidate such an inhumane law.  The ban on same-sex marriage is equally prejudicial, as well as unconstitutional, and it will be the next to fall.  That was made clear by Federal Court Judge John Sedwick who, in explaining his decision, wrote: 
“The court has not yet decided whether there is a conflict between Arizona law and the Constitution, but the court has decided that it is probable that there is such a conflict and that Arizona will be required to permit same-sex marriages.”
The 9th U.S. Circuit Court heard arguments last week in same-sex marriage cases out of Idaho, Nevada, and Hawaii.  Whatever ruling it makes will apply to Arizona.  Over the past few years, one Federal Court after another has invalidated bans against same-sex marriage.  Soon almost half the states in the U.S. will have legalized Gay Marriage.  The issue may ultimately be decided by the U.S. Supreme Court, but the writing is already on the wall.

The Gay Marriage debate is about dignity and human rights.  But it is about more than that.  It is also about legal rights and the protection that the law affords couples who are married.



The Law Office of Gary J. Frank has been a fixture in the Biltmore area of Phoenix, Arizona for over thirty years.  Gary Frank is a Family Law litigator, a mediator, and a former Judge Pro Tem.  Our firm handles a wide array of cases, such as divorce, domestic partnerships, custody, relocation, paternity, child and spousal support, division of property and businesses, modification and enforcement actions, grandparent and non-parent rights, and all matters relating to families and children.  If you are in need of a consultation, please do not hesitate.  Contact us today.  You can reach us by telephone at 602-383-3610, or by email at gary.frank@azbar.org, or through our website at www.garyfranklaw.com.  We’d be honored to help you.


IS THE “COHABITATION EFFECT” REAL? — JUST USE YOUR COMMON-SENSE

They call it the “Cohabitation Effect”  — study after study performed over the past forty years has found that that living together before marriage leads to a much higher risk of divorce.   Some researchers have concluded that the risk of divorce is 33% higher for people who cohabit before marriage than for those who elect not to live together until they are married.

But wait — statistics sometimes lie . . . or maybe the problem is that experts can look at a set of statistics and come to an erroneous conclusion.

In a recent study the nonpartisan Council on Contemporary Families looked deeper into all the old statistics and found something different.  They concluded that the age of a couple when they move in together is a stronger predictor of divorce than simple cohabitation.  The longer a couple waits to make such a serious commitment, the better the chance that the marriage will last.

Of course, it’s just common-sense.  A couple of 25-30 year-olds who decide to live together are more likely to have a lasting relationship than two 18 year-olds.  They’re older, wiser, more mature, and probably more financially independent.

Do we really need an expensive research study to provide the same advice that our grandparents would have given us for free?

Wait until you’re ready.”    


http://www.theatlantic.com/health/archive/2014/03/the-science-of-cohabitation-a-step-toward-marriage-not-a-rebellion/284512/

Gary J. Frank is an attorney and mediator with over thirty years of Family Law experience in dealing in divorcecustody, and parenting issues. For many years he acted as a Judge Pro Tempore in the Maricopa County Superior Court, which gave him an insight into the inner workings of the courts that many attorneys lack.  His office is located in the Biltmore area of central Phoenix, with satellite offices in Scottsdale and Paradise Valley, Arizona.  He can be reached by telephone (602-383-3610); or by email at gary.frank@azbar.org.  You can also reach him through his website at www.garyfranklaw.com.  If you are in need of a consultation regarding any area of Family Law, please do not hesitate to contact us today.

SINGLE MOTHERS ARE HEROES

Over the past few years a number of studies have come out which purport to show that children raised in single-parent households are more likely to live in poverty, lag behind in academics, and have more emotional problems than children raised in two-parent households.  And who is to blame for all of this?  Well, according to the interpretation of many so-called “experts” . . . it is Single Mothers.
A Google search turns up headlines such as:  “Why Do Single Parent Families Put Children At Risk?”; “Are Married Parents Really Better for Children?”; “Single Parent Families Threaten America’s Fiscal Future”; . . . and “Single Motherhood: Worse for Children.” 
Blaming single mothers is wrong.  In fact, it’s stupid.  Historically, it has been single moms who have stepped up to the plate and supported the children when fathers abandoned the family or were only peripherally involved.  Single mothers are the ones who have shouldered the responsibility of raising the children — disciplining them, getting them off to school, helping with homework, soothing them when they are sick, and taking care of all their needs.  Single mothers are the ones who have gone to work to put clothes on their children’s backs, and food on the table, when fathers are not providing support.  In many cases, mothers are the only person in their children’s lives whom they can rely on.  Why blame single mothers?
It is too easy to glance at a set of statistics and immediately look for someone to blame.  But that is exactly what the “experts” are doing.   Assessing blame in this manner requires ignoring a wide array of societal factors that contribute to childhood outcomes.  For instance, one could argue that it is poverty, and not single parenthood, that places a child “at risk.”  Single parents are more likely to be below the poverty level, for obvious reasons.  If a mother is not receiving child support from the father – or not enough child support – then it is no surprise that she and her children will struggle financially.  She will have to find a job, or maybe two, to make ends meet.  If the children are being raised in an area of town where crime is rampant, and attending a faltering school, then the odds are higher that those children will be considered “at risk.”  Is that the mother’s “fault”?  Why isn’t it the fault of the parent who has chosen to take no responsibility at all for the children?  

The fact is that in some instances the children are better off being raised by a single parent rather than living in a home with parents who are angry and hostile toward each other; or being negatively influenced by a parent who is disconnected and irresponsible, or who suffers from substance abuse or untreated mental illness — or, worse yet, who is abusive.  Those who claim that children are better off living with both a father and mother conveniently ignore the fact that many of those two-parent households are a toxic environment.  

And what about mothers who are single by choice?  If an unmarried person wants a child and is loving, capable, and able to provide a safe, nurturing home, then why should she not have a child, or adopt one?  I know an unmarried doctor who adopted and raised three happy children.  She is a knowledgeable, attentive, and devoted parent; and her children are certain to have a bright future.  I can’t imagine a married couple providing a better environment for a child.    

In truth, the vast majority of single mothers do an outstanding job of providing for their children, while balancing work and parenting.  They often shoulder the responsibility alone and still manage to provide a loving and nurturing home.  Some of the most successful people in the world today have been raised by single mothers – including the 44th President of the United States, Barack Obama.

To blame single-motherhood for the ills of society is an injustice.  Single moms should receive a medal.  They are heroes.



The Law Office of Gary J. Frank has been a fixture in the Biltmore area of Phoenix, Arizona for over thirty years.  Gary Frank is a Family Law litigator, a mediator, and a former Judge Pro Tem.  Our firm handles a wide array of cases, such as divorce, custody (Legal Decision-Making and Parenting-Time), relocation, paternity, child and spousal support, division of property and businesses, modification and enforcement actions, grandparent and non-parent rights, and all matters relating to families and children.  If you are in need of a consultation contact us today.  You can reach us by telephone at 602-383-3610, or by email at gary.frank@azbar.org, or through our website at www.garyfranklaw.com.  We’d be honored to help you.

IS ARIZONA’S NEW “CUSTODY” LAW HURTING CHILDREN?

During the past year, Arizona Family Law statues were revised.  Some legal experts believe the changes reflect a trend in Arizona, and in many other states, to use 50/50 decision-making and parenting-time as a starting point in assessing the parenting arrangement. 

In Arizona, the new revisions removed the word “custody” from the Family Law statutes entirely, and replaced it with the terms “legal decision-making” and “parenting-time.”  Other significant revisions to the law were made, as well.  For instance, both the old statute and the new one provide a list of factors that the court shall consider in deciding legal decision-making and parenting time.  For many years, the judge would consider “whether one parent, both parents, or neither parent has provided primary care of the child.”  But that factor was removed when the statute was revised.  Now the judge is required to consider “the past, present, and potential future relationship between the parent and the child.”  
The reason this is important is that while, in the past, the judge would consider which parent had actually provided “primary care” of the children, the new statute places an emphasis on other parent’s potentialfor being able to care for them.  There is some logic to the change.  When two people are married they may have the luxury of being able to have one parent stay at home, or work part-time, and provide primary care of the children; however, after the divorce both parents will probably have to work full-time, and each will become a “single parent.”  If both parents are working full-time, then an equal parenting arrangement might make sense.  But, in my opinion, there is a danger in making a blanket assumption that such an arrangement would be best for the children.  Examining a parent’s capability is fine; but relying on a parent’s “potential” can be speculative, since it is based on supposition and not fact.  The reason one parent was primarily in charge of parenting during the marriage may have had less to do with work schedules than the fact that the “other parent” was not as interested in, or not as capable of, being an active and engaged parent.  To give that parent equal decision-making, and equal parenting-time, would be contrary to the children’s best interests.
The big question is whether Arizona’s statutory revision will have the effect of making 50/50 the “default” parenting arrangement, or the “starting point” in the Court’s analysis.  In my own experience – and according to attorneys with whom I have spoken — that is exactly what is happening in many cases.  Today a judge might start with a 50/50 arrangement in mind, and move from there to more parenting- time and/or decision-making for mother, or for father, depending on the facts and circumstances of the case. 
The change brings Arizona in line with many other states, but I believe this shift in philosophy is a mistake.  While “best interests of the child” is still the deciding factor in a judge’s decision, I am concerned that courts are increasingly moving in the direction of a “template” decision that applies across the board and will be ordered unless a litigant can prove that using the template would be harmful to the children.  Rather than using a “template,” or a “starting point,” or “default” option, the Court should judge each case on its own merits, without any preconceived notions.  To do otherwise could lead to a decision that does not truly serve the “best interests” of the children.  It might even lead to a decision that hurts them.
We must keep in mind that “Children’s Rights” should always trump “Parents’ Rights.” 

Gary J. Frank is an attorney and mediator with over thirty years of Family Law experience in dealing in divorcecustody, and parenting issues. For many years he acted as a Judge Pro Tempore in the Maricopa County Superior Court, which gave him an insight into the inner workings of the courts that many attorneys lack.  His office is located in the Biltmore area of central Phoenix, with satellite offices in Scottsdale and Paradise Valley, Arizona.  He can be reached by telephone (602-383-3610); or by email at gary.frank@azbar.org.  You can also reach him through his website at www.garyfranklaw.com.  If you are in need of a consultation regarding any area of Family Law, contact us today. 

HOW TO USE AN ATTORNEY AS A CONSULTANT, AND SAVE MONEY

It is true that a lawyer can provide useful legal advice, helpful guidance, and strong representation for anyone involved in a Family Law case,  However, not everyone chooses to retain and attorney — and not everyone can afford one.  Fortunately, there are a number of options for obtaining the services of an attorney, and some of those options are very affordable.  One of the most effective, and least expensive, ways to utilize an attorney is to use him or her as a consultant on an as-needed basis.
OBTAINING A LEGAL CONSULTATION
Representing yourself in a contested Family Law action presents an enormous challenge.  Parties to litigation are expected to understand the law and rules of Family Law procedure.  The fact that you are a layman, and not a lawyer, is no excuse for violating procedural rules.  Imagine trying to play in a basketball game without knowing the rules.  The coach calls your name, but when you walk on the court you don’t know how to dribble or pass the ball, or even which basket to shoot at.  That’s the kind of disadvantage you have when you walk into a courtroom as a “pro se” (self-represented) litigant.  You may wind up losing your case without ever knowing why, or how, it happened.  Obviously, it is best to be represented by legal counsel.  But not everyone is fortunate enough to be able to afford to retain an attorney on an ongoing basis.  So, what is the next best thing?  Seek a one-time consultation with an attorney.  In that meeting, which customarily takes place in the lawyer’s office, you will have the opportunity to discuss your specific matter with an expert.  The attorney will describe how the court process works and talk to you about your legal rights. He or she can help you identify the documents (called “exhibits”) and the witnesses that you will need to prove your case.  The attorney can also devise a “game plan” and help you map out a strategy for making a strong argument in court.  This is the time to ask questions, so that you can feel confident going forward.  When the consultation is over and you walk out of that lawyer’s office you should have a much better idea of the law, your legal rights, and how to present your case in the best possible light.
FOLLOW-UP CONSULTATIONS
During the course of the litigation (which can last for several months, or even a year or more) new issues, and new questions, will likely arise.  When this happens, you can follow up by obtaining additional consultations with an attorney, as necessary.  It is important to remember that since the attorney is not representing you in the litigation, he or she will have no obligation to stay updated with the facts and legal issues of your case or perform work on your behalf.  However, by using an attorney to provide you with basic advice from time to time, you will still be far better off than if you were to try to figure things out by yourself, without any legal guidance.

ASSISTANCE IN PREPARING FOR MEDIATION OR SETTLEMENT NEGOTIATIONS
Parties to a divorce or custody dispute would be well-advised to explore the possibility of resolving their issues through mediation or settlement negotiations, rather than fighting it out in court.  No matter how strong your case may be, there is always a risk that the judge might see things differently, and you may lose.  Resolving the case through negotiation gives you the opportunity to carve out the terms of your own agreement, rather than allowing a judge to decide what is best for you and your family.  People who are able to negotiate their own agreement tend to be happier with the arrangement.  Why?  Because it is their agreement.  They made it.  And they “own” it.  It wasn’t imposed upon them by a judge who is a stranger to the parents and the children.  
Although mediation (or a settlement conference) is a great alternative to battling it out in court, many people reduce their chances for success by walking into the negotiation session without proper preparation.  This is a serious mistake.  In that meeting you will be dealing with crucial issues, such as custody of children, legal decision-making, parenting time, financial support, and division of property.  Lack of preparation could cause you to overlook things that are important, or it could lead you to make compromises that are not in your best interest.  Not being prepared could also cause you to become so fearful of making a bad deal that you are unable to make a deal at all — and then you miss an opportunity to avoid a contentious trial and reach an agreement that is fair for everybody.  These types of mistakes, due to lack of preparation, can have drastic long-term consequences.   As the old saying goes, “Failing to prepare is preparing to fail.”
For an affordable fee you can obtain a consultation with an attorney to help you prepare for your upcoming mediation or settlement conference.  The attorney will review your legal paperwork, financial documents, and/or other important information, and talk to you about the facts of your case, as well as your needs, your goals, and your wishes.  The attorney can also help you formulate your settlement position and devise a negotiating strategy.  By the time you walk out of that lawyer’s office, you should feel more confident in your ability to negotiate on your own behalf.  
USING AN ATTORNEY TO HELP YOU PREPARE DOCUMENTS
For someone going through a simple uncontested divorce, the Maricopa County Superior Court Self Service Center provides forms that can be downloaded online, for free.  These forms can be found at www.superiorcourt.maricopa.gov/ssc.  Hard copies of the forms can be picked up at the courthouse.  However, figuring out how to fill out those forms and navigate your way through the court process can be a daunting and confusing task.  A certified document preparer can fill out your forms but is not allowed to give you legal advice. On the other hand, for the price of an affordable consultation, you can meet with a licensed attorney who will not only check to make sure you have filled out your forms properly, but will also explain your legal rights and describe how the court process works.  You may not have the resources to retain an attorney on an ongoing basis in your Family Law matter, but by using an attorney from time-to-time as a consultant you will have an expert to help guide you through the process.
YOU CAN AFFORD AN ATTORNEY
Utilizing an attorney as a consultant on an as-needed basis allows you to control your costs.  For someone who does not wish to hire a full-time attorney, or for someone who cannot afford one, obtaining legal consultations from time-to-time can pay great dividends.  The attorney can assist you in many ways, including explaining the law; advising you of your legal rights; guiding you through the court process; assisting you in planning your strategy; drafting motions or other documents that you may need to file; and helping you to prepare for mediation, court hearings and/or the trial.  Using an attorney as a consultant is an affordable option, and a very good one.
Gary J. Frank is an attorney and mediator with over thirty years of Family Law experience in dealing in divorcecustody, and parenting issues. For many years he acted as a Judge Pro Tempore in the Maricopa County Superior Court, which gave him an insight into the inner workings of the courts that many attorneys lack.  In addition to representing Family Law clients in litigation, we are also willing to help people by working with them on a Limited-Scope or Consultation-Only basis.  Our office is located in the Biltmore area of central Phoenix, with satellite offices in Scottsdale and Paradise Valley, Arizona.  We can be reached by telephone (602-383-3610); or by email at gary.frank@azbar.org.  You can also reach us through our website at www.garyfranklaw.com.  If you are in need of a consultation regarding any area of Family Law, contact us today.  We’d be happy to help.