I WANT A DIVORCE — NOW WHAT?

Going through a divorce can be one of the most difficult times in a person’s life. Making the decision to dissolve your marriage (file for divorce) can be emotionally taxing, especially if there are children involved. The end of a marriage can be also be a confusing situation. Your divorce can include asset protection, child custody and support issues, spousal maintenance, domestic violence, or drug use/abuse. The attorneys at Gary J. Frank P.C. can make it easier for you and your children to go through the divorce process. We represent clients in both contested and uncontested divorce, with children or without children.

The following is some general information about marriage, and the general steps that need to be taken when filing for a divorce.

Covenant vs. Non-covenant

Arizona is a “no-fault” state, meaning that neither party needs to show blame or responsibility for the divorce. This is referred to as a “Non-Covenant” Marriage, and a marriage will be considered a non-covenant marriage unless the parties specify that they are entering into a “Covenant Marriage.” The only question that needs to be answered in a divorce of a Non-Covenant Marriage is whether the marriage is “irretrievably broken” or that there is no chance of the parties reconciling.

A Covenant Marriage is different in that the parties must have the intent to enter into this type of marriage, which should be declared on their application for a marriage license. A Covenant Marriage is also different than a Non-Covenant Marriage because in order for the parties to divorce, someone must be at “fault.” This is important because in a Covenant Marriage, a state court cannot grant your divorce without a reason. This can include adultery, felony, habitual drug or alcohol use, or if both parties agree to a divorce.

How to File for Divorce in Arizona

  • Residency Requirement

In order for a person to file for divorce in Arizona, one or both spouses must have lived in Arizona for at least 90 days. This includes spouses that are members of the Armed Forces and have been stationed in Arizona for at least 90 days.

  • Fill out your forms

In order to initiate your divorce in Arizona, the spouse filing for divorce (the petitioner) will need to file a “Petition for Dissolution of Marriage” with the Clerk of the Superior Court in the county the party resides. The Petition asks the court grant the parties’ divorce, while also entering other orders such as the separation of marital community property, the identification of sole and separate property, and if there are children involved, legal decision making and parenting time orders. This is only the start of the divorce process, and the requests in your petition are usually not considered until evidence and testimony are presented at a trial or evidentiary hearing.

  • Service of Process

Once you file your Petition for Dissolution, you will need to serve the other party (your spouse) with a copy of your documents, which include the Petition, the Summons, and the Preliminary Injunction, and other required documents. There are several methods of service, but the most common are arranging service with a private process server, or having the other party sign an Acceptance of Service, acknowledging that he/she has received the divorce paperwork. The signed Acceptance of Service must then be filed with the clerk of court.

Once the Petition is filed, you have 120 days from the date of filing to serve the other party. If the party is not served within that time frame, your case will be dismissed. Once your spouse is served, he/she will have 20 days to file their Response to your Petition (or 30 days if served out of state). If your spouse is served and fails to file a Response within the applicable time period, then you can apply for a “default judgement.”

  • 60-Day waiting period

The parties (you and your spouse) will have to wait at least 60-days before the Court will enter into any orders. This is otherwise known as the “cooling-off” period. This cooling-off period begins when your spouse is served. For example, even if you and your spouse have agreed on all issues in the divorce and submit a Decree, the Court will not sign it or enter any orders until the 60-day period has lapsed.

  • Decree of Dissolution

The order that finalizes the divorce is called a Decree of Dissolution. This will outline all of the terms of the divorce, including division of property and parenting issues, and each party will be returned to single status. The terms of a Decree of Dissolution can be ordered by the Court after a final trial; or the parties can negotiate their own agreement and submit a Consent Decree of Dissolution of Marriage to the judge for approval. If the parties submit a Consent Decree, and the judge approves and signs it, then they may be able to obtain a final divorce without ever stepping foot in a courtroom.

 

by Hanna Juncaj

The Law Firm of Gary Frank P.C. is an Arizona Family Law firm that has been a fixture in the prestigious Biltmore area of Phoenix, Arizona for over thirty years.  Our attorneys, Gary Frank and Hanna Juncaj, are strong litigators, highly-skilled mediators, and compassionate counselors. We handle divorce and spousal maintenance cases, as well as legal decision-making, parenting time, child support, relocation/move-away, Paternity, Grandparents’ rights and Non-Parents’ rights cases, modification actions, enforcement actions, and all other matters related to Family Law.  If you are in need of a consultation, attorneys Gary and Hanna would love to talk to you.  Please call us today.  You can reach our office at 602-383-3610, or you can contact us by email at through our website.  To learn more about our firm, take a look at our web site at www.garyfranklaw.com.  We’d be happy to help you.

NEW CASE LIMITS JUDGE’S ABILITY TO MAKE DECISIONS FOR PARENTS

It came on like a silent earthquake. You didn’t see it coming. You never felt it when it hit. But now the foundation of the place where you live has shifted. The cracks in the walls are becoming visible. And nothing will ever be the same.

That is the effect of the 2018 Arizona appellate court case of NICAISE v. SUNDARAM,

Before Nicaise, the Family Court was the final arbiter of disputes over matters like education, medical, religious, or other decisions that parents make. If the parties couldn’t agree on an important parenting issue, one of them could take the matter to court and, after a trial or a hearing, the judge would make the decision for them.

But not anymore.

The Court in Nicaise ruled that a judge “may not substitute its judgment for that of a parent and make parenting decisions for them when they are unable to agree.” So now, when parents disagree, a judge can no longer decide which school a child will attend, or what doctor can treat her, or whether she will participate in therapy, etc. Those are parental decisions, and the Court no longer has the authority to intervene and “break the tie.”

For a number of years, the trend in divorce, legal separation, paternity, and other Family Law cases has been for the courts to award the parents joint legal decision-making authority (formerly called “joint custody”). But the Nicaise case is likely to slow down that trend, or even stop it in its tracks, in cases where people have trouble co-parenting.

Previously, the courts would sometimes enter a joint legal decision-making order, but give one of the parents the “Final-Say” in the event of a disagreement. It required the parents to at least discuss the issue, and each parent had input. But that has changed, too. The Court, in Nicaise, determined that “an award of joint legal decision-making that gives final authority to one parent is, in reality, an award of sole legal decision-making.” So now, if parents cannot seem to agree, then instead of awarding them joint custody with one parent having “final say,” it is likely that the judge will simply award one parent sole legal decision-making authority. This might make the other parent feel as though his or her parental rights have been stripped away. And it could set the stage for less co-parenting, and more fighting, in the future.

The effect of the Nicaise ruling is that if a mother and father are unable to make decisions together, the Court will have to appoint one parent to make all the decisions; or it might split up the decision-making authority so that, for instance, one parent is in charge of making educational decisions while the other has the authority to make medical decisions.

The Nicaise case represents yet another major shift in how Family Law cases are decided in Arizona. It may take years for the repercussions of that ruling to become clear. But this we do know: There is no longer a reason for a judge to order that the parents have joint legal decision-making authority with one parent having the final say. And when parents appear to be unable to make decisions together, it is likely that a judge will grant one parent or the other sole legal decision-making authority. This could derail the decades-old trend of Arizona courts giving divorced/separated parents joint decision-making responsibility, and expecting them to be able to co-parent.

How will the Nicaise ruling play out in the future? – It may result in pitched court battles between parents, with each of them seeking “sole custody,” and it could turn divorce and custody litigation into a high-conflict, winner-take-all contest. This makes it even more important for moms and dads to try to work together and co-parent effectively. And, where they are unable to do so, it will be worthwhile to consider peaceful options, such as mediation and settlement negotiation. Because if those efforts fail, and litigation becomes the only alternative, it is likely that one parent is going to win, and one parent is going to lose. And sometimes that is not the best outcome for the children.

 

 

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. He has also acted in the capacity of a Judge Pro Tempore in the Maricopa County Superior Court, and served 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. She has extensive courtroom experience, and is also a certified mediator. In addition, Hanna is an active member of her County Bar Association.  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, call us today 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.

 

 

 

Family Law Attorney Speaks Out for Children

As a Family Law Attorney and a children’s advocate for 37 years, it angers me that our own government has taken more than three thousand children from their parents at the border. Some have been shipped to locations across the country, while their parents are deported. Separating immigrant children from their parents is cruel and inhumane. It’s a matter of basic human rights. Just imagine the horror of it happening to you and your kids. Today, little 3 and 4 year old boys and girls are being forced to appear in court and represent themselves in deportation proceedings. That makes a mockery of U.S. Immigration Law and our Constitution. Thousands of young children have been traumatized, and many will never find their way back to their mothers and fathers. This is not a Democrat vs. Republican issue. It is not American vs. Immigrant. The only question is whether we, as a society, will countenance child abuse.

ARIZONA CUSTODY LAW UPDATE – IS ASSUMPTION OF EQUAL PARENTING TIME AND DECISION-MAKING AUTHORITY UNFAIR TO CHILDREN?

  In 2012 I wrote an article on our law firm’s blog entitled “Say Goodbye to Custody,”, in which I discussed the brand new, and highly debated, revisions to the Arizona Family Law statutes. These laws, which guide the Court in making custody decisions involving children, have given rise to an assumption of equal parenting time and decision-making authority that has become the starting point for the Court’s analysis in every contested custody case. In my opinion, this approach hurts children more than helps them, and is unfair to both mothers and fathers. In this article, I’ll explain why.

Among the changes to the law were the following:

  • The word “custody” was replaced with the terms “Legal Decision-Making” and “Parenting Time.” (A.R.S. §25-403)
  • A provision was added providing that the court shall adopt a parenting plan “that provides for both parents to share legal decision-making regarding their child and that maximizes their respective parenting time.” (A.R.S. §25-403.02)
  • And in determining custody, whereas the Court was previously required to consider which parent had historically been the primary caregiver for the children, that was removed from the list of factors in the statute and replaced with a requirement for judges to consider: “The past, present, and potential future relationship between the parent and the child.” (A.R.S. §25-403 [1], Emphasis added.)

At the time, there was much discussion as to what these changes would mean. Some experts believed that the revisions were mostly “semantics” and that not much would change. Others argued that the revisions would lead to a “sea-change” in how the courts determine custody (now called Legal Decision-Making and Parenting Time) in the future.

Now, more than five years later, the answer is in. Has there been a big change? Yes. The change has been enormous. It is a seismic shift in the way judges determine parenting time and legal decision-making authority. And, in my opinion, the change is not necessarily a healthy one.

The law still provides that the “best interests of the child” standard should be applied when making “custody” and parenting time decisions, but today, many judges interpret the statutory changes as requiring them to start with the assumption that both parents should be given equal decision-making authority, and equal parenting time. And, in many cases, that trumps the best interests of the child. It wasn’t that way before the law was changed. But, increasingly, it is the reality today.

Why do I think this is not a healthy approach? Well, I’ll get to that in a minute; but before I do, I need to explain a few things: The latest studies show that children do better, and are happier, when both of their parents are loving, active and involved. When a divorce or breakup occurs, the courts should work to make sure that loving, active and involved parents share in decision-making, and that the children get to spend plenty of time with both of them. In fact, Arizona law provides that:

It … is the declared public policy of this state and the general purpose of this title that absent evidence to the contrary, it is in a child’s best interest: (1) To have substantial, frequent, meaningful and continuing parenting time with both parents; (and) (2) To have both parents participate in decision-making about the child.” (A.R.S. §25-103) 

So that’s the policy. And it’s true that equal decision-making and equal parenting time are good for children when both parents are loving and capable caregivers. But here’s the catch: Not all parents are equal. Some parents have never been meaningfully involved in their children’s lives, and never will be. And I’m not necessarily talking about “bad” parents. There are parents who love their children but are just too busy, or maybe not interested enough, to be involved. If a parent isn’t available to spend time with the children; and rarely or never attends doctors’ appointments, or school functions, or extracurricular activities; and if that parent doesn’t know the children’s friends; and isn’t tapped into their children’s likes and dislikes, their strengths and weaknesses; their abilities, or disabilities; their medical conditions; etc., then how can that parent be trusted with making critically important decisions for those children? – But all too often today, these types of parents are awarded 50/50 parenting time and equal decision-making authority. And why? – Because of an unwritten assumption that a parent is entitled to it under Arizona law.

This is where I think the new law, as currently interpreted, goes off the rails and can hurt children. It places “Parents’ Rights” ahead of “Children’s Rights.” It assumes that in every case the Court should start its analysis with the proposition that both parents will receive equal parenting time and decision-making authority. And, by doing this, the best interest of the child has been made secondary to the best interest of the adults. Proponents of the law will not agree with my opinion. They will point out that there is no legal presumption mandating equal decision-making and parenting time — but that argument rings hollow. Because while it is true that overcoming a legal presumption requires a higher level of proof than a mere assumption, there is often little difference between the two in actual practice.  Try explaining the difference to a mother or father who has always been the sole caregiver, but whose children will now spend half their lives with a parent who never changed a diaper, never got up with a baby at night, never took care of a sick toddler, or attended a parent-teacher conference, or a school play, or a Little League game.

Those favoring an assumption of equal parenting-time and decision-making will argue that the Court is still required to consider all relevant factors, and that while “equal” may be the starting point in the analysis, a judge can give a parent less time, or no decision-making authority at all, where it is deemed to be in the best interest of the child. And that is true. But I would remind them that Arizona law was also changed in a way that makes such an outcome less likely.

Arizona Revised Statutes, Section 403 contains a list of factors that the Court shall consider in determining Legal Decision-Making and Parenting-Time. Before the law was changed, that statute contained a factor which required a judge to consider whether a parent had historically provided primary care for the child. But that factor was removed from the statute and replaced with this: “The court shall consider all factors that are relevant to the child’s physical and emotional well-being, including . . . (1) The past, present and potential future relationship between the parent and the child.”

So now, in making the all-important decision on where the child lives and who will make major decisions, the judge is required to consider a parent’s unproven “potential.” Instead of giving primary consideration to which parent actually took care of the child throughout his or her life, the Court must give equal weight to the other parent’s “potential.”

But here’s the problem — How many people do you know who never lived up to their potential? How many athletes were top draft picks but never became stars? How many employees were promoted but never became effective managers or supervisors? — How many moms or dads were excited when their baby was born but never became active and involved parents? In my opinion, it is a huge mistake to emphasize “potential” over actual experience, or even to give it equal weight. Because past history is the best predictor of future behavior. Thus, by putting too much stock in “potential,” the danger of a bad outcome is evident. And in the end, when a father or mother is awarded equal parenting-time and decision-making authority and never lives up to his or her potential, it is the children who suffer.

Of course, there will be parents who were stay-at-home moms or dads during the marriage, but will have to work full time after the divorce – and the fact that both parents will now be working should be taken into consideration by the Court in formulating a parenting plan. In that sense, the other parent’s potential to become a competent caregiver would come into play. However, it should be just one of many factors the judge considers in determining what is in the best interest of the child.

Fathers’ rights advocates maintain that an assumption of equal parenting time and decision-making is necessary because mothers were previously favored in custody disputes. Hey, I’m a father, and nothing is more important to me than my children. And, yes, it is true that there was a time when mothers typically received custody of children. But that was during an era when women were faced with societal and social barriers that made it difficult for them to obtain a college education or executive-level employment, or even a decent-paying job, and which practically forced them to be “housewives” and stay-at-home caregivers of children. Today, many of those barriers have been knocked-down, and glass-ceilings are being shattered. Recent studies show that over sixty-percent of all college students today are women. This means that in the future more mothers will be the family breadwinners; and more fathers will become stay-at-home parents. Therefore, for a judge to make a blanket assumption of equal parenting time and decision-making authority is unfair to both Mothers and Fathers.

In Arizona and other states across the country, the growing trend in custody cases is to award the parents equal decision-making authority and parenting time. That’s not a bad thing, so long as the parents are equally involved in raising their children. The experts agree that it is best for children to have both parents actively involved in their lives, and that effective co-parenting helps to ensure that children will grow up to be healthy and productive adults. But to make custody decisions based on a simple assumption that both parents are equally capable – when they may not be – is a colossal mistake. One that can harm the children in the long-run.

The care of children is too important to make broad assumptions, let alone instituting legal presumptions, regarding decision-making and parenting time. In the real world, parents are not always equal caregivers. Sometimes the mother is the more responsible parent; sometimes it is the father who is the nurturer and is in a better position to provide for the children’s needs; and in many cases both parents are loving, capable caregivers who are willing to co-parent their children (that is, obviously, the best scenario).

Rather than making assumptions, the Court should start with a blank slate when crafting a parenting plan. The judge should carefully examine the capabilities of each parent, the factors contained in Arizona’s custody statute (A.R.S. §25-403), and all other relevant factors. The judge should take a close look at who has been the child’s primary caregiver, and also consider the potential future relationship between the parents and the child. But the needs of the child should always come first. By taking this approach the Court can ensure that the best interest of the child is protected.

 

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. She has extensive courtroom experience, and is also a certified mediator. In addition, Hanna is an active member of her County Bar Association. 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 maintenance and child support, modification and enforcement actions, grandparent and non-parent rights, and all other matters pertaining to families and children. To learn more about our firm, check us out on Facebook, Linkedin-Gary Frank, and Linkedin-Hanna Juncaj. 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.

 

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

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.