Financial Abuse: The Elephant in the Room

 

By Guest Blogger:  Michelle Buonincontri, CFP®, CDFA™

Part1 – Financial Abuse, Abuse REALLY?

Financial Abuse: the elephant in the room

Financial abuse can be a subtle manipulative, ‘wooing” process that wears us down slowly so that we start to normalize the behaviors. Or it can be overt, demanding, intimating or a combination of all the above. It begins in the dating phase, and it un-hooks us from our “gut brain” or intuition. I’ve seen this increasing and occurring repeatedly with too many smart, educated women as women continue to earn more and advance in the workforce – myself included, which is why I want to address this important topic. It’s not just the stay-at-home mom.

In its most straightforward form, when one person deprives another access to financial resources or the ability to make money this is called economic abuse. Financial abuse can also be a partner dissipating finances for personal uses or guilting their partner into agreeing to financial decisions they are not comfortable with. Any erosion of the financial health of the partnership which depletes another’s access to resources in the long-run is a form of this abuse. Controlling or depleting resources creates a dependency, which is a way to control a partner from leaving the relationship.

Unfortunately, when most women get to this point, they have already ignored so many warning signs and are now in the fire and asking “How did I get here?”.

Impact

Research shows that victims eventually become so concerned with how to provide for themselves and their children financially that they feel trapped and stay. It also shows that financial insecurity is one of the top factors that women return to these relationships. Most times, emotional abuse accompanies economic abuse and victims feel inadequate and unsure of themselves as self-worth erodes over time and confidence wanes. It can also leave the partner vulnerable to physical abuse as well.  They take on the responsibility of trying to “fix-it”, “make it work”, as their partner has used ignoring, manipulation, sabotaging, belittling them or their family, gaslighting etc. to make them question their worth and power. Because it was found that 99 % of domestic violence cases also involved financial abuse, according to a study by the Centers for Financial Security, young women need to be made aware and educated about “this elephant in the room”.

How can having a budget be wrong?

Having a budget, a spending plan, and knowing your cash-flow is awesome – but both parties need to agree and have this knowledge. If one partner is hiding purchases for fear of reprisal, one partner can’t control their spending (retail, gambling etc.), or one partner conceals the financial information as they are “handling everything” or “better at it, than the other partner” there is a problem.  Saying, “I’m just trying to be responsible” could be a way to justify abuse. A good test would be to ask yourself, ”Are both of us, as partners,  sacrificing equally?” Unequal resources or unequal decision making can be a sign of unequal financial control.

But I make more, shouldn’t I have more say?

Earning more than another does not give someone the right to deprive another. Everyone is entitled to food/clothing/ shelter and partnership in a relationship. After those things are provided, discretionary expenses (like dining out, Starbucks, vacations etc.) should be agreed to together in a healthy relationship. There should be joint decision making with your partner.

As family values have eroded, this sentiment seems to become more and more prevalent. I see this even in long term marriages when working with couples that divorce. All of a sudden they seem to “forget” the agreements they made and kept while married. This is why it so important to understand your ”Money Mindset”,  values, the financial history & status of you and your partner while dating, before co-mingling assets. Having conversations and outlining these values and priorities in a more formal way, with a pre/post-nup agreement in marriage or a contract of sorts in a  domestic partnership agreement can be key to the success of that relationship.

What now?

Splitting”, by author Bill Eddy, is a great read that discusses pattern recognition, strategies for dealing with high-conflict partners and navigating the maze of negotiating and separating from these individuals more successfully. Click here to listen to Mediation Talk, as I discuss “How to Recognize Financial Abuse” with Host Diann Wilson. Learn the financial warning signs in dating, marriage and tips on how to protect yourself financially in the upcoming Blog – Part2 – Financial Abuse- What women need to know

If there is concern and you do not have a trusted counselor, pastor or qualified professional who can help, you can contact the National Domestic Violence Hotline at 1-800-799-SAFE.

 

Michelle Buonincontri, is a Certified Financial Planner™(CFP®),Certified Divorce Financial Analyst (CDFA™) and founder of Being Mindful in Divorce. As part of her commitment to families in reducing the emotional and financial impacts of divorce and promoting alternative resolution models, she is trained as a Mediator and a Collaborative Divorce Financial Neutral; working with singles, couples and as a family law case expert. Michelle is also a Leader of the 2nd Saturday Divorce workshops, and a volunteer at Fresh Start Women’s Foundations and Savvy Ladies. Michelle may be reached at 520-369-3380 or [email protected]

This article is not meant as counseling, investment, tax or legal advice, but rather information. It is always advisable to seek out and work with a qualified professional in their area of expertise to determine your unique situation and what particular options are available to you.

 

 

 

It Does Not Take Two To Tango — Dealing Personality Disorders

Most people think that a “high-conflict divorce” necessarily involves two people who are angry and unreasonable. But that’s not always the case. When one party to a divorce suffers from a borderline, narcissistic, or other type of personality disorder, he or she can pull the entire family into a “knock-down/drag-out” litigation.  A person with a personality disorder often lacks basic compassion and/or the willingness to compromise for the benefit of the children.  He or she may be driven by revenge or the desire to inflict emotional pain and suffering — and appealing to this person’s sense of reason and logic is of no avail.  This may make it difficult or impossible to negotiate a fair settlement, leaving no alternative but to go to trial.  Our firm brings many different strategies to the table when dealing with an opposing party with a personality disorder. For instance, sending out subpoenas for medical or counseling records will allow us to obtain important information on the person’s physical and psychological background; Drug testing may be warranted if there is a history of drug or alcohol abuse; A deposition can give us great insight into the mind of the person being deposed — it can enable us to obtain admissions of guilt, and it will also give us clues which may lead to other critical information that can be successfully utilized at trial; And the appointment of court experts to conduct interviews, mental health evaluations, or family assessments can prove to be of great value in diagnosing a personality disorder that may not have previously been formally discovered. These are a few of the many strategies we typically employ in high-conflict Family Court litigation involving people who may have personality disorders. If you find yourself in this situation, then you’ll need a strong advocate — an attorney who will fight hard to protect your interests. If you are in need of a consultation, Contact us today.

 

The Law Office of Gary J. Frank has been a fixture in the prestigious Biltmore area of Phoenix, Arizona for over thirty years.  Gary Frank and Hanna Amar are strong Family Law litigators and mediators with a wealth of experience both in the courtroom and in settlement negotiations.  Our firm handles a wide array of cases, such as divorce, custody, relocation, paternity, child and spousal support, division of property and businesses, modification and enforcement actions, grandparent and non-parent rights, same sex divorce and custody, and all matters relating to families and children.  If you are in need of a legal consultation, please do not hesitate to Contact us today.  You can reach us by telephone at 602-383-3610, or by email at [email protected] and [email protected], or through our website at www.garyfranklaw.com.  We’d be honored to help you.

NEW AZ SUPREME COURT CASE RESTORES FAIRNESS TO FAMILY LAW

Thanks to the Arizona Supreme Court’s decision in the case of Nicaise v. Sundaram the planets are now all aligned and balance has been restored in the world. Ok, maybe this is a little bit of an exaggeration, but not much as far as Arizona Family Law is concerned. Let me explain:

For many years, there has been a trend in the courts (Arizona and many other states) toward awarding divorced and separated parents “joint custody” of their children, and placing responsibility on them to work together in making major decisions affecting the children. Of course, making decisions together isn’t easy, so when problems would arise (on issues like choice of schools, or whether counseling is necessary, etc.) judges were available to hear the dispute and “break the tie” by making a binding decision. In some cases, where parents found it difficult to make decisions, the Court could enter an order awarding the parties joint custody, but giving one of the parents “final say” in the event of a dispute – but even though a parent had “veto power,” she/he was required to consult the other parent and seek their input prior to making the decision. In rare cases, the Court would award one party sole custody, but that tended to be reserved for cases where one of the parents was uninvolved; had a substance abuse problem; committed acts of domestic violence; had a criminal history; or demonstrated poor judgment that rendered them unfit to make decisions that were in the best interests of the children.

But all that changed in 2018 with the Arizona Court of Appeals ruling in the case of Nicaise v. Sundaram. I wrote about it in an August, 2018 blog post. The ruling turned Family Law in Arizona upside down. In that case, the Court of Appeals stated that the Court “may not substitute its judgment for that of a parent and make parenting decisions for them when they are unable to agree.” In other words, the courts no longer had the right to “break the tie” when parents could not agree on important matters such as medical, educational, or religious decisions affecting a child. The Appellate Court in Nicaise also concluded that giving a parent joint custody with “final say,” is the same as giving that parent sole legal decision-making authority.

The effect of the Court of Appeals ruling in Nicaise was profound. It pretty much assured that in every divorce or custody case where the parents were potentially at odds (which is the vast majority of them) the Court would be likely to award sole legal decision-making authority to one of them; or to split up the decision-making authority by giving one parent sole authority to make educational decisions while the other parent would have sole authority to make decisions on other matters, such as medical issues or religion.

In essence, this set up a win-lose battle where one parent would be given unfettered sole-discretion to make important decisions without seeking the other’s input, and leaving the other parent out in the cold. And it would probably result in more high-conflict cases; more contested trials; more fights to modify existing orders; and far more divorce and custody wars being waged in court.

But, thankfully, the Arizona Supreme Court changed all that in January, 2019 with its decision to overturn the Appellate Court ruling in Nicaise v. Sundaram.

The Supreme Court ruling makes much more sense. It noted that when the legislature enacted the law with regard to Joint and Sole Legal Decision-Making, it created a distinction between the two, and carved out an important exception: Whereas Arizona Revised Statutes, Section §25-401(6) gives a person with sole legal decision-making authority the right to make decisions affecting the child, Section §25-401(2) defines joint legal decision-making as both parents sharing decision-making and neither parent’s rights are superior “except with respect to specified decisions as set forth by the court or the parents in the final judgement or order.”  This exception allowed a judge to split the decision-making authority, and/or to award parents joint legal decision-making authority, while giving one parent the “final say” in the event of a disagreement.

The Supreme Court pointed out that someone with joint legal decision-making authority and “final say” is still required to communicate with the other party and seek their input in an attempt to resolve the matter before making the final decision. (This is not the case with sole legal decision-making authority.) Therefore, it held that joint legal decision-making authority with “final say” — and sole legal decision-making authority — are different as a practical matter. It also held that Section §401(2) “also preserves some legal authority for the parent who does not have final legal decision-making authority.” The Court ended its analysis by stating that “Arizona cases frequently provide for joint legal decision-making with one parent having final authority over certain matters . . . The court of appeals’ opinion unnecessarily injects uncertainty into a well-established practice and is inconsistent with the overall structure of §25-401.”

The Court of Appeals 2018 ruling in the Nicaise case threw us back into the dark ages where only one parent could be given “custody” and there would always be a winner and loser in every litigation. The Supreme Court’s 2019 decision to overturn the Court of Appeals case restores balance and fairness to Arizona Family Law. It allows for compromise. And it gives parents respect and a greater right to participate in their children’s upbringing.

 

At the Law Firm of Gary J. Frank P.C., both Gary Frank and attorney Hanna Amar 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 Amar is a highly-skilled attorney and mediator with a passion for Family Law and children’s issues – a great communicator who cares about her clients and uses her expertise to guide them through difficult times. We handle Family Law cases in the areas of divorce, custody (now called “Legal Decision-Making and Parenting Time), relocation (move-away), grandparent and non-parent rights, division of property, spousal maintenance, child support, modification and enforcement actions, 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 [email protected] and [email protected] You can also contact us through our website at www.garyfranklaw.com.   We look forward to hearing from you.

 

 

DIVORCE HOLIDAY SURVIVAL GUIDE

 

It takes courage. 

Making it through the holidays can be stressful for any family.  But for newly divorced couples, or those who are in the midst of a divorce or custody dispute, it can feel almost traumatic.  The thought of not having your children throughout Christmas, or of being alone on the holidays, can cause feelings of anxiety and depression.  The disruption of what have become family traditions can cause sadness.  Worries about how the children will fare while in the care the other parent (especially when that other parent was not the primary caregiver) can lead to panicky emotions.  Dealing with a relationship that has ended, and concerns about your children and your uncertain future, can be a recipe for fear and anger.  All too often, those are the types of emotions that come to the forefront during the holidays.  And the result can be arguments, disagreements . . . Conflict.

It takes patience.

Not surprisingly, family law attorneys are busy during the holidays.  When communication between parents shuts down, fear takes over.  When people become unwilling to discuss and compromise, anger flares.  That’s when people turn to their lawyers and the courts.  Sometimes emergency motions and court appearances are necessary, however, in many cases they are caused by a knee-jerk reaction to a perceived slight or threat; something said in the heat of the moment which neither party really intended to turn into an expensive legal skirmish.  In these instances, a little patience can go a long way.  When conflict occurs during the holidays, rather than jumping right in and engaging in a war of words, it helps to sit back, take a deep breath, and consider the alternatives.  This doesn’t mean giving in.  It simply means not “taking the bait” and escalating an already volatile situation.  It means keeping your composure and calmly examining your options before reacting.  Most problems can be worked out when people are able to think clearly and rationally.

It takes faith.

Statistics show that the vast majority of cases will be resolved out of court, before trial.  And following the divorce, most people will eventually settle into a time sharing routine that works for both the parents and the children.  If you can control the panicky emotions now, and make an effort to communicate respectfully with your ex (or soon-to-be ex), then you will be setting the stage for better communication in the future, and a healthy way of handling problems when they do arise.  Try to have a little faith that things will work out.

Here are ten tips for handling the stress and making sure that the children will enjoy the holidays:

  1. Allow yourself to grieve:

If this is your first holiday having to share the children, it doesn’t help to pretend that it isn’t difficult.  You can’t deny your emotions, but you can look for healthy ways to deal with them.  This might include talking to a friend or family member, finding some alone time, looking for a support group, or even seeking the help of a good therapist.

  1. Make time for social activities and exercise:

There will be times when you do not have the children over the holidays.  So, make the best of it.  Spend more time with friends and family.  Look for activities that you enjoy, and do them.  Take time to exercise — it will get your endorphins pumping and help you to feel good physically and mentally.

  1. Plan ahead:

Planning early for how time with the children will be shared during the holidays reduces the chances for miscommunication, and it allows you time to iron out potential problems before they occur.

  1. Put the needs of the children first:

When putting together a time-share schedule, make sure to consider the age of the children, as well as their developmental and social needs.  The goal is for the children to be able to enjoy the holidays, and this takes precedence over the convenience of the parents.  For very young children, it may be necessary to set up short periods of time with each parent.  For older kids and teens, longer time periods with each parent (such as a week with one, followed by a week with the other, during the school break) may be the best alternative.

  1. Be flexible:

If there is one thing I’ve learned about the holidays, it is to “expect the unexpected.”  It happens every year:  A favorite aunt, uncle, or cousin decides to visit at the last minute; a kid gets sick; plans for a family dinner get changed to an earlier, or later, time, etc.  Despite our best planning, these things happen.  So, be willing to be flexible.  It will not only make the holiday more fun for the children, and reduce conflict between parents, but it will make things less stressful (and more enjoyable) for you.

  1. Allow for open communication:

Lack of communication between children and a parent is a frequent cause of conflict during the holidays.  “I haven’t been able to speak to my kids for a week, and their mom won’t pick up the phone when I call.” — “Whenever Meagan calls me, I can hear her dad listening on the other line.” —  “My kids told me that my ex won’t let them talk to me on the phone.”   When children are in the home of a parent, they should be allowed to have reasonable telephone contact with the other parent, especially during the holidays.  This eases the children’s fears and shows them that their parents are willing to work together for their best interests. Problems can be avoided if the parents are willing to discuss this issue prior to the holidays and work out a reasonable schedule for phone calls – and, of course, it is important to be flexible.

  1. Don’t try to outdo the other parent:

There is sometimes a tendency for divorced parents to try to outdo each other during the holidays . . .  More fun.  Bigger gifts. Later bedtimes.  Less discipline . . .  Of course, this type of competition is understandable, but it is a trap.  Not only does it make life unnecessarily stressful for the parents, but it is certainly not in the best interests of the children.  Your children love you.  You don’t need to buy their affection.  If you want the kids to enjoy being with you, all you need to do is to give them your love and attention.

  1. Keep the children out of the middle of your dispute:

One sure way to ruin the holidays for your children is to make them feel as though they are in the middle of a battle between their parents.  Don’t make children choose.  Don’t complain to them about the other parent.  Don’t use them as messengers to communicate with your ex.  Don’t let them hear their parents arguing about issues involving them.  They are children, so let them be children.  They deserve to have a nice holiday and, as their parent, it’s up to you to make sure they do.

  1. Allow the children to love the other parent:

Children of divorce can feel torn.  They not only love each of their parents, but they often feel an allegiance and a responsibility to each.  The parents divorced each other, but they did not divorce the children.  Therefore, the children have a right to continue to love both parents after the divorce.  To deny them that right can lead to long term psychological problems.  You are the adult, and it is up to you to let your kids know that, despite the divorce, it is ok for them to love the other parent.  You can do that by not badmouthing the other parent; by not interrogating the kids after visits; and by not putting them in the middle of your dispute.  Just taking these simple steps can help assure that your children grow up to be healthy, well-adjusted adults, and that they will always look forward to the holidays with their family.

  1. Start a new tradition:

One of the hardest things for parents to bear following a divorce is the loss of a beloved holiday tradition with their children.  So, start a new tradition.  A party with family and friends; baking holiday goodies together; a fun trip; working with a charity.  The holidays are all about family, and giving.  You can sit down with your children and let them help choose a new activity that will become a beloved family tradition – something they will always remember.

 

At the Law Firm of Gary J. Frank P.C., both Gary Frank and attorney Hanna Amar 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 Amar is a highly-skilled attorney and mediator with a passion for Family Law and children’s issues – a great communicator who cares about her clients and uses her expertise to guide them through difficult times. We handle Family Law cases in the areas of divorce, custody (now called “Legal Decision-Making and Parenting Time), relocation (move-away), grandparent and non-parent rights, division of property, spousal maintenance, child support, modification and enforcement actions, 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 [email protected] and [email protected] You can also contact us through our website at www.garyfranklaw.com.   We look forward to hearing from you.

 

SEEKING GRANDPARENT VISITATION? WELL, LIFE JUST GOT EASIER.

 

If you are seeking Grandparent Visitation with a grandchild who is being withheld from you by an angry parent, you’re in luck. Because Family Law in Arizona has recently changed and life has suddenly become easier for those seeking Grandparents Visitation and Grandparents Custody. The storm clouds are parting and blowing away, and the sun is shining through. – Let me explain . . .

PREVIOUS LEGAL BARRIERS FOR MADE IT HARD FOR GRANDPARENTS

The law pertaining to Grandparent Rights can be found in Arizona Revised Statutes, Section 25-409. That statute contains the requirements for someone seeking Grandparent Visitation. The law also states that: “In deciding whether to grant visitation to a (grandparent), the court shall give special weight to the legal parent’s opinion of what serves their child’s best interests . . .”

Over the past few years, the higher courts in Arizona interpreted “special weight” as meaning that a judge has to give “Robust Deference” to the parents’ decision; and that to obtain grandparent visitation, grandparents must show that cutting them out of the picture would cause “Substantial Harm” to the child. This was a very high bar to reach, an obstacle that in many cases made it impossible for grandparents to obtain visitation rights.

BUT THINGS HAVE NOW CHANGED

But that has changed, and the bar has now been lowered. In the recent case of Friedman v. Roels, 401 P3d 884 (Ariz. 2018), the Arizona Supreme Court ruled that  Arizona Grandparents who are seeking visitation no longer need to prove “substantial harm” to the child, and that although a judge must still give the parents’ decision “special weight,” it is not to be accorded “robust deference.” This allows the Court to put more emphasis on the best interests of the child. Whereas, before, a judge was practically required to give in to the wishes of an angry parent, that is no longer the case. Grandparents who meet the requirements of the statute now have a fighting chance to obtain an order giving them visitation of their grandchildren, even over the objection of a parent who, out of anger or animosity, is trying to cut them out of the children’s lives.

We recently won an appeal in a Grandparent Rights case due to the change in the law, and we expect that it will become easier to obtain Grandparent Visitation orders down the road as a result of this new Supreme Court ruling.

NEED HELP? — GIVE US A CALL

If you are a grandparent who is unfairly being deprived of the ability to have a relationship with your grandchildren, and you wish to obtain an order for Grandparent Visitation or Custody, give us a call. We may be able to help.

Gary Frank and Hanna Amar are Arizona Family Law Attorneys who represent many grandparents and other non-parents in Arizona courtrooms. They are grandparents rights attorneys who are strong litigators and compassionate counselors, and who will fight to protect your interests.  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.

 

WORKING DAD’S JOURNAL — First Day of School

LETTER TO MY SON ON HIS FIRST DAY OF SCHOOL:

August 8, 1994

Today was your first day of kindergarten. This morning, at breakfast, you seemed a little tentative, so I volunteered to walk you to school. Your mom laid out your new school clothes on your bed, and now you proudly put on your Power Rangers T-shirt, along with a pair of shorts and your black, high-top Chuck Taylor All-Star Converse basketball shoes. You looked in the mirror and admired the kid staring back. You were decked out and looking good.

I packed your lunch, grabbed your Phoenix Suns backpack, pinned on your name tag, put a red apple badge around your neck (signifying that you go to Mrs. Sullivan’s extended-day enrichment class after your morning class ends) and off to school we went.

We had a nice conversation as we walked. When we reached the campus we saw your sister with her friends Rhianna and Christina, and we waved. I told you that we were still a little early and there was time to play on the playground. You were excited. We passed two boys who seemed to be about your age.

“Hi guys!” I said, wanting to help you make new friends. “What grade are you in?”

“First,” said the little one, without much interest.

“He’s going into Kindergarten,” I said, pointing at you.

You smiled and kicked some dirt.

“Kindergarten is for babies!” bellowed the big one, and off he ran, with his little sidekick right behind. You looked crestfallen.

I glanced around for something to divert your attention and take your mind off of this bitter rejection.

“Hey, pal,” I said. “Look at those kids playing on the baseball field — I’ll race you around the bases!”

The playground had been irrigated over the weekend and was still wet, although the baseball field was on higher ground and seemed to be mostly dry. A few older kids milled around, waiting for class to start. You and I positioned ourselves at home plate.

“On your mark . . . Get set . . . GO!”

And we were off. We reached first base with you a step ahead, racing at full-throttle. We turned and sped toward second base, neck-and-neck. Just before we reached it, I looked down, and there, where the base would normally be, was a large, round patch of what at any other time would have been dirt. Today, however, it was mud. Deep,wet, squishy, slimy mud. My eyes darted to you, hoping that you would take a wide turn and avoid the quagmire. But you leaned into the turn at high speed, rounding second with one long stride. As your left foot hit the ground, it began to drift and, for one brief moment, you were skating. Then, as your right foot came down, your left foot flew out from under you — and you landed, with a splat, in the watery, brown goop.

For a few seconds you lay there, unhurt, but wondering what the heck you were going to do now. I stood over you, wondering the same thing. Slowly, you pulled yourself to a sitting position, and then stood up. Your entire left side; shoes, socks, leg, shorts, shirt, arm and hand, were caked with a thick coat of dripping, wet mud. You examined your new clothes, which your mother had so carefully picked out. Then you looked up and, as your eyes met mine, we both burst out into raucous laughter.  The big kids who were standing around us laughed, too, but they were laughing with us, as compassionate friends.

I took your hand and walked you toward your class. You sloshed along beside me, giggling too hard to be embarrassed. I told you that I’d go home and bring you back a fresh, dry set of clothing. When we reached the sidewalk, the class was lining up. Your classmates looked at you, wide-eyed. Your teacher, Mrs. Filson, bent down and patted you on the head, trying unsuccessfully to hide her amusement. “What a way to start the day,” she chuckled. Mrs. Teagarden, the school principal, walked up and put her hand on your shoulder. Laughing sympathetically, she said:

“You’re all boy.”

 

Business Owner Comp: More Than Just A Wage

 

By Guest Columnist:

Laura S. Leopardi, CPA/ABV/CFF/CGMA, MBA

 

Family law cases involving community businesses inevitably require an analysis of business owner compensation. Privately-held (also referred to as closely-held) business owners tend to compensate themselves in a variety of ways— not just a W-2 wage. Additional sources of compensation may include potential wages paid to a spouse/party not actually working in the business, dividends or distributions, shareholder loans, corporate perquisites, deferred compensation (401k plan contributions), or payment from affiliate entities (such as holding companies).

Wages— are they reasonable?

The issue with W-2 wages paid to community business owners is whether or not they are reasonable. The Internal Revenue Service uses a two-prong test for payroll deductions— the pay must be 1.) reasonable and 2.) it must be for services performed.  I.R.S. Publication 535 (2013), Business Expenses, states “To be deductible, your employees’ pay must be an ordinary and necessary business expense and you must pay or incur it.”  Reasonableness tests consider efforts contributed, the level of wages paid commensurate with duties performed, and industry standards. In addition, wages paid to spouses of business owners not actually working in the business but intended to earn social security and Medicare credit are disallowed by law and can be treated as compensation of the working spouse.

Dividends/Distributions

Distributable— not just distributed, income should be assessed. When valuing a business, dividend paying capacity is assessed. Dividends or distributions authorized can be traced to corporate resolutions approved by the Board of Directors. Undistributed earnings should be analyzed to assess whether such monies are truly necessary working capital needed to fund business operations or potential owners’ compensation— especially in businesses solely owned by the community.

Shareholder Loans

Some business owners tend to borrow money from their company. A key consideration here is the intent to repay. The Internal Revenue Service looks for a fully executed formal promissory note with the principal amount borrowed and terms of repayment, including a stated rate of interest, payment schedule, and maturity date. Applicable Federal Rates are published monthly by the Internal Revenue Service for debt instruments used in property transactions between related parties— including shareholders [http://apps.irs.gov/app/picklist/list/federalRates.html]. Often, there is no note, no interest rate, no historical payments, and…no intent to repay. Look for increases in shareholder loans reported on the balance sheet from year to year. The annual increases may very well be treated as business owner compensation. Shareholder loans typically represent community obligations— monies payable to the business. However, the disposition of such monies is often investigated in a forensic accounting or business valuation.

Perquisites

Travel, meals, entertainment, health insurance, vehicle loan or lease payments, and club membership dues are all examples of expenses that can be material and construed to reduce personal living expenses. Consequently, discretionary expenses paid by an employer can be attributable to the employed spouse’s compensation. 

Deferred Compensation

Business owners can establish deferred compensation plans whereby part of their compensation is deferred until retirement age. Nonqualified deferred compensation plans are an employer’s unsecured contractual commitment to pay employee compensation in future tax years to a select management group or highly compensated employees. Certain plans have both a salary deferral and profit-sharing portion to deferred compensation. According to plan documents and as allowable by law, employers may match part of employee contributions. Some plans allow loans against deferred assets— another source of income. Other forms of nonqualified deferred compensation include incentive stock options, restricted stock, stock appreciation rights, and phantom stock.

Payments from Affiliate Entities

A typical scenario in Arizona is a community business that is an operating company paying rent (which may or may not reflect market value) to an affiliated holding company— another community business. Such rents reduce the operating company’s taxable income and value. A property management fee can be taken, which minimizes the holding company’s taxable income and value. Payments from affiliate entities for services rendered may be treated as compensation.

Child Support Guidelines

Arizona Child Support Guidelines are an excellent resource when analyzing gross income from self-employment. Determination of the Gross Income of the Parents delineates components of income from self-employment including income from rents, royalties, proprietorship of a business or joint ownership of a partnership or closely held corporation. Regarding perquisites, expense reimbursements or benefits received by a parent in the course of employment or self-employment or operation of a business shall be counted as income if they are significant and reduce personal living expenses. Permissible deductions from gross income include ordinary and necessary expenses required to produce income, which include one-half of self-employment taxes actually paid.  Concepts of unemployment or underemployment are addressed and are also pertinent considerations as is a productivity adjustment to business owners in relation to their industry counterparts.

 

Laura S. Leopardi, CPA/ABV/CFF/CGMA, MBA is Managing Member of Laura S. Leopardi, CPA, pllc and is a credentialed and experience business valuator and testifying expert witness in family law cases including business valuation, income from self-employment, lifestyle analysis, and commingling issues. Laura can be reached at 602.595.3962 or [email protected]

BASKETBALL PLAYER GETS A “PASS” ON DOMESTIC VIOLENCE

In an article about Jason Kidd, a former Phoenix Suns basketball player who was recently elected to the Hall of Fame, a local sportswriter wrote: “Kidd was traded after a 2001 fight with his wife that led to him pleading guilty to spousal abuse.” But he quickly went on to note: “His personal troubles didn’t seem to affect his play.”

Really? That’s it? Are we supposed to admire this guy for not letting the fact that he beat up his wife affect his play on the basketball court? – I have news for you: Many men who abuse their wives or children don’t let their “personal troubles” affect their performance at work. Maybe instead of praising the abusers for doing so well professionally, we should look at how those beatings affect the lives of the victims.

Domestic violence is an insidious evil. And that evil is endemic to all cultures, and all ethnic and socio-economic groups. It’s an evil that needs to be eradicated. But we’ll never wipe it out by downplaying it, or so easily giving an abuser a “pass” as long as he’s a famous athlete or a corporate executive, or a high-ranking politician. I stand with the “Me-Too” movement. I stand with “Time’s-Up.” Only by men and women standing up and speaking out against domestic violence, sexual harassment, gender inequality, and workplace discrimination will we begin to see any real change.

 

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 – a great communicator who cares about her clients and uses her expertise to guide them through difficult times. We handle Family Law cases in the areas of divorce, custody (now called “Legal Decision-Making and Parenting Time), relocation (move-away), grandparent and non-parent rights, division of property, spousal maintenance, child support, modification and enforcement actions, 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 [email protected] and [email protected] You can also contact us through our website at www.garyfranklaw.com.   We look forward to hearing from you.

 

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.

HOW DOES THE COURT DETERMINE SPOUSAL MAINTENANCE?

Spousal Maintenance, known in many other states as “Alimony,” is one of the most ambiguous and difficult areas in Arizona Family Law.  Determining whether to award spousal support during a divorce is a matter of judicial discretion. The award of spousal maintenance will be modifiable in the future (upon a showing of substantial and continuing change of circumstances) unless the parties agree that it shall be non-modifiable and such a provision is included in the final order

In making her/his decision, the judge will first consider the factors listed in Arizona Revised Statutes, Section 25-319(A). Those factors include the length of the marriage; the age of the spouse seeking spousal support; whether that spouse is able to be self-sufficient through employment; whether she/he has sufficient property to provide for her/his reasonable needs; and whether she/he is caring for a child whose age or condition makes it difficult or impossible to work.  If the judge determines that one or more of the above factors applies, then spousal maintenance may be awarded.

As for how much should be paid in spousal maintenance, and how long it should be paid, the judge will look to section B of the statute.  Arizona has no specific guidelines (as it does with child support) to make this determination, and there is nothing in the statute that specifically instructs the Court as to the amount, or the duration, of a spousal maintenance award. Instead, there is a second set of factors, which include the following: “

(1) The standard of living established during the marriage;

(2) The duration of the marriage;

(3) The age, employment history, earning ability and physical and emotional condition of the spouse seeking maintenance;

(4) The ability of the spouse from whom maintenance is sought to meet that spouses’ needs while meeting those of the spouse seeking maintenance;

(5) The comparative financial resources of the spouses, including their comparative earning abilities in the labor market;

(6) The contribution of the spouse seeking maintenance to the earning ability of the other spouse;

(7) The extent to which the spouse seeking maintenance has reduced that spouse’s income or career opportunities for the benefit of the other spouse;

(8) The ability of both parties after the dissolution to contribute to the future educational costs of their mutual children;

(9) The financial resources of the party seeking maintenance, including marital property apportioned to that spouse, and that spouse’s ability to meet that spouse’s own needs independently;

(10) The time necessary to acquire sufficient education  or training to enable the party seeking maintenance to find appropriate employment and whether such education or training is readily available;

(11) Excessive or abnormal expenditures, destruction, concealment or fraudulent disposition of community, joint tenancy and other property held in common;

(12) The cost for the spouse who is seeking maintenance to obtain health insurance and the reduction in the cost of health insurance for the spouse from whom maintenance is sought if the spouse from whom maintenance is sought is able to convert family health insurance to employee health insurance after the marriage is dissolved; and

(13) All actual damages and judgments from conduct that results in criminal conviction of either spouse in which the other spouse or child was the victim.”

Since there is no set of guidelines for the determination and calculation of spousal maintenance, the final result will depend on how each judge applies the statutory factors to the facts of the case. This can result in wide variations in spousal maintenance awards — and it makes it important for a person seeking spousal maintenance to present a solid case using a “needs-based” analysis.  Thorough preparation, good organization, and a convincing courtroom presentation will give you the best chance for success.  A strong, experienced attorney can greatly increase your chances of receiving a spousal maintenance award.

 

This response is provided for informational purposes only and should not be construed as legal advice or representation.  To understand your rights and obligations under the particular circumstances of your case, you should seek legal counsel.

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.