Decorum for the Online Courtroom: How You Dress for Court Matters

For centuries, Judges have dressed in black robes, while Lawyers and parties to the litigation have been encouraged to dress modestly to signify credibility. In recent years, people going to court have begun dressing more casually, while maintaining a level of modesty. However, according to a recent New York Times article, as courtrooms have moved online during the COVID-19 Pandemic, dress codes have begun to go out the window.

A recent New York Times article discusses a letter that a Florida judge wrote to lawyers asking them and their clients to maintain the same level of etiquette that they would have in a real courtroom. In the judge’s letter, he shared that one male lawyer in his Zoom courtroom appeared shirtless and one female attorney appeared in bed, still under the covers. He also shared that someone in his courtroom was clearly poolside wearing a cover-up over a bathing suit.

This letter made it clear that many Judges, whether they express it or not, are judging litigants and attorneys on their appearance. The letter also made it clear that in video conferences, litigants and attorneys are also being judged on their surroundings. This may not necessarily be fair, but it’s the reality. Judges are trained to be impartial, but they are also human. It’s possible that the judge will focus strictly on the facts, but it’s also possible that he or she will see your old pajama tee shirt as a form of disrespect for the judicial process.

The dress code in the Maricopa County Superior Court is business casual. Specifically, the dress code specifies that shorts and tank tops are not appropriate, nor are uniforms (such as firefighters, military personnel, police officers, medical scrubs, etc.). Since moving online, the courts have not put out any sort of statement regarding dress code. As such, litigants and attorneys should continue to dress as though they were in the courtroom (at least from the waist up).

Dressing for court doesn’t mean you need to go over the top and put on your most expensive clothes or your nicest outfit, but you should look modest, neat and professional. Your best bet is to dress as though you were going on a job interview via video conference. This will send the message to the judge that you respect them and the court process.

In regard to your surroundings during a video conference, it’s best to be in a quiet room with good internet connection, if possible. Turn the television and your phone off and get rid of anything in the room that may be distracting. It also is helpful if your background is something neutral, like a plain wall or a bookcase. This too will send a message to the judge that you respect them and the court process.

By: Logan Matura

 

At the Law Firm of Gary J. Frank P.C., our Arizona Family Law Attorneys Gary Frank, Hanna Amar, and Logan Matura are strong litigators and compassionate counselors. Gary Frank is a Phoenix 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. Law firm Partner, Hanna Amar is a highly-skilled Arizona Family Law Attorney with a passion for Family Law and children’s issues. She has extensive courtroom experience, and is also a certified mediator. Hanna has also acted as the President of the Young Lawyer’s Division of the Maricopa County Bar Association. Associate Attorney Logan Matura is an Arizona Family Law Attorney who received her Juris Doctor degree from New York Law School in Manhattan, NY. While in law school, she served as an intern for a Family Court judge in the Bronx, NY, and was a member of the Family Attorneys Mobilizing club. Our firm handles 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 actions, enforcement actions, grandparent and step-parent and non-parent rights, as well as 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.

What You Post on Social Media CAN Hurt You In a Family Law Case

These days, most teens and adults have at least one social media page, whether it be on Facebook, Instagram, Twitter, Snapchat, TikTok, LinkedIn, or some other platform. Since so many adults have social media accounts, many attorneys have witnessed mistakes that have been made on social media which negatively impacted their family law case. In fact, we have won cases for our clients simply because of what an opposing party, in a moment of anger, posted on their social media.

You may wonder how what you post online can have a negative impact on your divorce or custody case. I’ll give you a few examples, some of which are based off of real cases that our firm has handled in the past:

  • In a spousal maintenance case, a husband claimed to be earning very little income, yet he posted on Match.com that he earned over $150,000 per year. This post was then used against him to show that he made more than he originally said he did.

 

  • In a custody case, a mother who denied doing drugs and partying was posting photos on Instagram in which she was at bars and nightclubs holding bottles of alcohol with others doing drugs in the background. This was then used against her in court when determining parenting time and legal decision making.

 

  • In a divorce case that started off amicably, a husband ranted on Facebook about his soon to be ex-wife after a heated argument. A mutual friend screenshotted the post and sent it to the wife, who became enraged and decided she no longer wanted to be amicable. This led to a litigation that went on for years and cost a great deal of money for both parties.

 

  • A mother posted photographs on Instagram of herself and her young daughter with Mother’s new boyfriend. An investigation turned up that the man had a long criminal record, including convictions for domestic violence and child abuse. Needless to say, the mother lost custody of that child.

 

  • In a high-conflict custody matter, an angry father made threats against the mother on his Facebook page, which resulted in the Court awarding mother sole custody with only limited supervised visitation for Father.

 

If you are active on social media, it’s important to learn the best practices while going through a family law case. Here are some important tips:

  1. Be careful who you add and accept on social media. We all want to have lots of friends and followers on social media, but some of these “friends” can hurt you. That follow-request that you accepted, despite not really knowing who they are, could be a private investigator or your ex on a burner account trying to see your posts. Consider making your accounts private and be careful whose requests you accept.
  2. Remove your ex from your social media page and consider removing their family and friends too. It is not uncommon for one of these types of “friends” or followers to pass along a copy of your comments or photos, and before you even suspect it, that post shows up in court and is used as evidence against you at trial. These types of “friends” or followers are often the ones who are looking into everything you say or do on social media and trying to find something damaging to your case.
  3. Don’t post when you are angry. Nothing good can come from posting while you are angry. Try and channel your anger into something positive, or vent to family, friends, or a mental health specialist. If you are concerned that you can’t control your posts when you are angry, it may be wise to take a break from social media until your case is over.
  4. Do not talk badly about your ex or their family and friends. It’s easy sometimes in the heat of the moment to post something negative about your ex. It may not even be something that is obviously towards them but could be something subtle and passive aggressive. These comments could be taken out of context, or otherwise used against you in a court hearing. No matter how subtle you think the message may be, it is never a good idea to post things about your ex or their family and friends.
  5. Do not talk badly about yourself, your family or friends, or provide information that could possibly be reflect negatively on you. Just as you shouldn’t post about your ex and their family and friends, you shouldn’t post about yourself and your family and friends either. Again, things can be misconstrued. I recently saw an old friend post something on Twitter to the effect of “the last year has taught me that nobody hates me more than I hate me.” If they were in a family law case, this post would absolutely be used against them, even if they were just joking and did not actually mean what they wrote.
  6. Do not post comments or photos of yourself, your family, or your friends doing anything illegal or which may appear to be illegal, inappropriate, or compromising. This pretty much speaks for itself, but don’t post anything that would very clearly negatively reflect on you, your family, or your friends. There is just no need to post the pictures of you at your office holiday party taking tequila shots with your boss. Keep those for yourself—or maybe don’t take those pictures at all.
  7. Do not post about your children. If you have kids, it’s best to keep them off of your social media pages altogether at this time. Of course, you should continue to share special moments and take photos with your kids. However, it may be beneficial to take a break from posting about them on social media until your case is over. While photos of you and your kids or posts about them may be totally acceptable at any other time, while there is a case going on, you are under a microscope. Certain photos could be misinterpreted or there could be something in them you don’t even notice that could be used to call your parenting into question. The same goes for the stories you tell or comments you make about your kids—you just never know how something may be interpreted.
  8. Do not post about your income, or really anything about money, at all. There is nothing good that can come from writing about your income or your money on social media! It’s really as simple as that!
  9. Do not discuss your case publicly on social media. Again, nothing good can come from posting about your case publicly on social media. It will not look good for you with the judge, and as always, something may be misinterpreted or taken the wrong way by your ex or their lawyer.
  10. Do not post information about conversations with your attorney. This could be construed as a waiver of your attorney-client privilege, making admissible things that were said in confidence to your lawyer. Just don’t do it!

Social media can be a really fun part of our lives. But as you can see, it can significantly impact many areas of a family law case in a negative way. As a rule of thumb, if you wouldn’t want a judge or your ex’s attorney seeing the post or photo, don’t post it! And if you are questioning whether you’d be okay with them seeing the post or photo, just don’t post it!

By Logan Matura

 

At the Law Firm of Gary J. Frank P.C., our Arizona Family Law Attorneys Gary Frank, Hanna Amar, and Logan Matura are strong litigators and compassionate counselors. Gary Frank is a Phoenix 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. Law firm Partner, Hanna Amar is a highly-skilled Arizona Family Law Attorney with a passion for Family Law and children’s issues. She has extensive courtroom experience, and is also a certified mediator. Hanna has also acted as the President of the Young Lawyer’s Division of the Maricopa County Bar Association. Associate Attorney Logan Matura is an Arizona Family Law Attorney who received her Juris Doctor degree from New York Law School in Manhattan, NY. While in law school, she served as an intern for a Family Court judge in the Bronx, NY, and was a member of the Family Attorneys Mobilizing club. Our firm handles 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 actions, enforcement actions, grandparent and step-parent and non-parent rights, as well as 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.

 

Everything You Need to Know About Social Security and Divorced Spousal Benefits

This article was originally published in “The Street”

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

 

As Baby Boomers continue to have higher and increasing divorce rates than other age groups, divorce later in life can bring increased retirement risks – there is less time (a shorter investment horizon) and opportunity to recover from losses. This creates more vulnerability to market fluctuations and retired spouses may also be confronted with unplanned liquidity needs that can no longer be met with wages or a salary.  Social security benefits can be an important part of a retirement income puzzle if you experience a late-life divorce..

Retirement and Social Security on their own are two complex financial planning topics.  Then  layer in divorce and things become even more complicated and confusing.  So let’s look at  some of the myths arounds Social Security so better informed decisions can be made when divorce or remarriage coincide with Social Security claiming.

Common Myths about Divorce and Social Security Claiming

Below are some of the misconceptions around Social Security benefits that may influence decisions around divorce or your retirement plan:

  • More than one spouse/ex-spouse can’t claim a Social Security benefit on a wage earner
  • He/she has remarried, so an ex-spouse can’t claim a Social Security benefit on their previous spouse’s earning record
  • If she/he claims a benefit on my work record I will receive a reduced benefit
  • My ex-spouse will find out if I claim a Social Security benefit on His/Her earning record
  • If we divorce, I receive all of her/his Social Security benefit
  • If we divorce, I receive my own Social Security benefit as well as ½ of his/her benefit
  • I can’t claim Social Security benefit based on my former spouse’s earning record because it was dis-allowed in my divorce settlement
  • I can’t claim a Social Security benefit based on my ex-spouses earning record and let mine grow (See the tip in Claiming on an Ex-Spouse’s Record below.)

The wording can be misleading, and there are some half-truths here so let’s explore some of this further in a general sense.

Basic Facts about Divorce and Social Security

When we’re talking about Social Security, marriage and divorce, 10  is the magic number of years married for someone to be eligible for Social Security or survivor benefits, based on the earning record of an ex-spouse. This is explained further in the “Claiming Social Security” section below.

From what I’ve read, the Social Security program has its own rules, just like the IRS, and those rules can’t be overwritten in a divorce settlement by state divorce law. So if your previous divorce settlement says you can’t collect Social Security benefits on your ex-spouse’s earning record, or your soon-to-be ex-spouse wants that added to your settlement agreement, contact the Social Security Administration for clarification at 800-772-1213 and peace of mind 

Additionally, both a current spouse and ex-spouse, can have a benefit based on the same wage-earners record. Consequently, even if your ex-spouse has remarried, you may still be eligible for a benefit, and the benefit is not divided among multiple spouses/ex-spouses.

For example

In the case of television personality Johnny Carson, his 1st, 3rd & 4th wives all collected Social Security benefits based on his earning record.  Unfortunately his 2nd wife did not because they weren’t married 10 years.

TIP:   There are 2 kinds of benefits, Social Security benefits and Survivor benefits – and the rules around remarriage are different.

Claiming on an Ex-Spouse’s Record

In general, there are five rules:

  • You had to be married for 10 consecutive years or longer
  • You have reached age 62
  • Your  ex-spouse is already claiming benefits

        OR

You have been divorced for two years or longer and your ex-spouse is eligible for social security retirement or disability benefits (even if He/She is not yet collecting) 

  • The benefit that you are entitled to receive based on your own work, is less than the benefit you would receive based on your ex-spouse’s work record
  • The spouse claiming a benefit on the former ex-spouse’s earning record has not remarried.  (This may vary if the ex-spouse has passed away and we are talking about a “survivor” benefit, see the Social Security website for more information this.) 

As a divorced spouse, your 

  • Spousal benefit will be ½ of your living ex-spouse’s benefit (even if you never worked) or your benefit based on your earning record– whichever is higher
  • Survivor or widow(er) benefit  – If your ex-spouse has passed away and you are eligible for a divorced widow(er) survivor benefit, you may receive the higher of 100% of your divorced ex-spouse’s benefit at your full retirement age or your benefit based on your earning record

Whenever you are eligible and apply for multiple benefits (as in the cases above) you won’t get the cumulative amount of the combined benefits (his/hers & yours), instead you will get whichever one pays the highest amount.  

TIP:  Divorced retirees who are age 62 or older by Jan. 1, 2016 and have a full retirement age (FRA) of 66, or if you were born before January 2,1954 and have already reached your FRA, you may choose to receive the divorced “spousal” benefit and delay receiving your own retirement benefit until a later date,  by filing a “restricted application” for just your ex-spouse’s benefit  from age 66 to 70. This allows your own retirement benefit (based on your record) to continue to grow at 8% a year – that’s 32% benefit increase if you wait until age 70 due to the delayed retirement credits. Then if you earned benefit is higher, you could switch to your own individual benefit at age 70 . This strategy however is no longer available for those born AFTER 1/1/1954.

Remarrying after Divorce

This is where it can get even trickier, depending on whether you remarried before age 60, after age 60, if you were receiving a widow or divorced spousal benefit before remarriage. Are you still married to someone now?  Are both spouse and ex-spouse living or is one deceased?

If you remarried before age 60 and are still married, you are not eligible to claim benefits on your ex-spouse’s record (even as a survivor widow(er) benefit).  If this marriage ends, you may be re-eligible for benefits on your ex-spouse’s earning record. 

However, if you remarry after age 60 you may be able to use a social security claiming strategy based on an ex-spouse if it’s favorable to you under certain circumstances.

For example:

If you were previously divorced, met the other eligibility requirements & the previous spouse passed away  and you now remarry after age 60, you may be entitled to the higher of a divorced widow(er) survivor benefit, a spousal benefit (based on your new spouse’s higher earnings record) or a benefit based on your earning record.

TIP:  Today, with the increase in divorce, there’s an increase in multiple remarriages.  So,  if you have more than one marriage that has lasted 10 years or more and ended in a divorce the earning records of both ex-spouses may need to be evaluated when deciding on a claiming strategy.

Filing

Have no worries, the Social Security Administration (SSA) will NOT notify your ex-spouse that you are receiving benefits based on their record, but you will need to know his/her Social Security number and have a copy of the finalized Divorce Decree. The SSA will look at you as single, married, divorced, or widowed and you may seem to fall into several of these categories which can be very confusing. Remember, you can’t be an ex-wife/husband of a living ex-spouse and a current wife/husband of a living spouse when talking about a spousal benefit. In this case you are a married spouse and can’t choose the better spousal benefits across both the ex-spouse and current spouse while they are both alive.

So, although you may apply for social security online via an application form  or your My Social Security account, or by calling 800-772-1213, it may be most prudent to speak with a financial professional specializing in social security claiming strategies first and then make an appointment to go into your local Social Security office.  

For a more detailed look at rules and scenarios see “Social Security Rules and Strategies for Divorcee Spousal Benefits”. It is also my understanding that the system’s rules and benefits are no different for same-sex marriages and divorces.

The Big Takeaways

  • If you were married more than 10 years, there may be some Social Security benefits available that you were not aware of, regardless of what your divorce decree says
  • If you are married close to 10 years, it may make sense for both of you to consider 
    • waiting until after the 10 years has passed before filing for a divorce
    • or filing for a legal separation in the interim, until the 10 year rule is met so that  the less-monied spouse can be protected financially under these social security benefits after the divorce. This does NOT impact the benefits received by the higher earning spouse
  • Talk with a professionals before making a final claiming decisions

This is not meant to be an exhaustive discussion on the topic, tax, financial planning or law advice; but rather items for consideration so that you may make better decisions with your team of professionals.  

 

By: Michelle Buonincontri, Certified Financial Planner, Certified Divorce Financial Analyst

[email protected]

5 Tips for Surviving Grey Divorce in Retirement

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

This article was originally published in  “The Street”

 

You were happy “once upon a time” and planned a future…. Now you’re 55 and getting a divorce.  Or maybe you’re 60 or even in your 70’s  and now part of a trend referred to as “Gray Divorce”, “ Grey Divorce”, “Silver Splitters”, or even “Diamond Divorcees”.

We know from reports such as the “Aging in the US  Retirement Security Trends in Marriage and Work Patterns May Increase Economic Vulnerability for Some Retirees” report to the Chairman, Special Committee, that divorce can worsen and create vulnerabilities for retirees. Additional research from Bowling Green State University’s National Center for Family & Marriage Research, tells us that “Those who divorce earlier in adulthood have more time to recoup the financial loses divorce usually entails.. “In contrast, those who divorce later have fewer years of working life remaining and may not be able to fully recover economically from a gray divorce.”.  A late-life divorce can wreak havoc on even the most well-thought out retirement plan.  Consequently, divorce in retirement is a time when resources are diminished; household income has dropped, assets and cash-flow have been reduced, and spouses may find themselves vulnerable. This is a serious planning concern.

Financial planning was important for retirement before the divorce, and it can be even more important now if you are considering or going through a divorce.  A planner specializing as a Certified Divorce Financial Analyst  (CDFA) can help you make the most of your retirement and manage these considerations:

Expectations & Education

During this time, managing expectations and financial education is paramount as income is typically limited and there is less time to replace needed retirement savings. This may be the first time a spouse must balance a budget, pay expenses, or manage a large cash settlement. One or both spouses may need to consider working longer (delaying retirement), modifying living expenses and discretionary spending.  Many times, one spouse may be entering the workforce – either again after many years or even for the first-time. Life will be different post-divorce; and the thought of this can be daunting and stressful and decisions tend to be made on emotions rather than facts. Ensure you have others in your life to help support you during this difficult time. Learn as much about your finances as possible and get educated on laws in your state.  Consider alternate divorce resolution models such as Mediation, maybe join a support group or yoga, be “mindful” of emotions,  and try to keep “healing” as a central theme as you weigh choices.

His/Hers/Theirs

One of the most important decisions made during the divorce process concerns the identification and splitting of the assets. A few things to consider:

    • Are you in an equitable distribution or a community property state, and what does that mean for you and your spouse?
    • Which assets & debts are separate, marital or community?
    • Are the assets liquid – do you have or will  you need access to cash? 
    • Are asset division decisions being based on an “after tax” basis so you are comparing apples to apples when determining what is equitable?
    • Retirement splitting – Is a QDRO needed? A DRO? An MRO? If this is a divorce that involves a service member – Are you a 10/10/10 spouse? A 20/20/20 spouse? Do you need to file something with Defense Finance Accounting Service (DFAS) for the  survivor benefit program or continued healthcare?
    • Pension division involves many things to consider. Just a few include the availability of COLA benefits to the non-participant spouse, ensuring benefits for the surviving spouse if the employee spouse passes (before and after the employee spouse begins collecting benefits), ensuring proper pension valuation and agreement on parameters used. Does a pension “immediate offset” make more sense than receiving pension benefits?
    • What social security benefits are you entitled to as a divorced spouse? A divorced widow? How is your social security benefit impacted by the Windfall Elimination Provision (WEP).
    • Is your spouse agreeing to take over debt and can you still be held responsible for those debts if they don’t pay? What happens if they file for bankruptcy?
    • Are there things on the tax return like depreciation, long-term carryover losses, passive activity losses, or net operating loss from a business that need to be reviewed and negotiated?  Or are you taking over the rental property as your primary home after the divorce?
    • What changes will need to be made to Estate planning?  Will, Trust, Power of Attorney, Healthcare Proxy, Healthcare Directive, asset retitling, account transfers, QDRO execution.
    • How does credit law differ from divorce law?  How does tax law differ from divorce law?

Settlement Process

Perhaps one of the best ways to handle financial expectations & fears is to use a data driven approach to the divorce settlement process. While developing your settlement it is important  to understand the short & long term effects on cash flow, taxes and your net worth, 5, 10, 20+ years into the future, because what may seem fair or equal on the surface is not equitable many times when looked at from a longer range view.

Certified Divorce Financial Analysts incorporate retirement planning into the divorce process; focusing on cash flow, healthcare costs, taxes, real estate, & net worth. This kind of Divorce Planning analysis, like retirement planning, allows spouses to negotiate and make adjustments in the decision of division of property & go into the settlement with a clear picture of their post-divorce financial future. It creates an opportunity to set the stage for fair negotiations,  level set expectations, establish “post-divorce” life goals and create a plan that both spouses can take action within and live with.

Increase Cash flow

If reducing expenses & saving can improve the odds for retirement success, then not carrying a mortgage into retirement could help after a gray divorce when income sources are limited & healthcare costs are most likely higher. A reverse mortgage can be used as a strategy in gray divorce to assist in retirement planning.

Cash flow is usually a concern during and after divorce, as the resources earmarked to support one household are now supporting two, and filing single on taxes could reduce net income available for living expenses. A HECM reverse mortgage should be evaluated as a possible “tool” or option, for those homeowners over 62 (who have little to no mortgage obligation), as it can be used to generate cash to bridge a shortfall in a spending plan, allow the delay of claiming Social Security or help facilitate the purchase of a new home for one or both spouses. A reverse mortgage can even protect against sequence risk and declines in your portfolio (if you are drawing from here, you don’t need to sell in a down market to raise cash), has benefits over HELOC, or could be used as part of LTC planning to stretch retirement assets.

Flexibility

Other ways to manage this disruption, like in retirement planning, may include adjusting goals, expectations & time frames. This could look like working longer, delaying Social Security claiming, reducing expenses (for example: downsizing or moving), saving more or considering a Single Premium Immediate Annuity to create guaranteed income. See also “Divorce Mistakes That Can Cost You”.  With flexibility and a positive attitude this can be an opportunity to recreate the next chapter of your lives.

Remember, no “one” plan or option makes sense for everyone, but having the right professionals to consult with  can make a difference in your long-term financial outlook.  Both the IDFA (Institute for Divorce Financial Analysts) https://www.institutedfa.com/  and the ADFP  (Association of Divorce Financial Plannerswww.divorceandfinance.org/ can be resources for finding a CDFA™ (Certified Divorce Financial Analyst)  professional to support you during this time of transition. Consult a Certified Financial Planner for comprehensive advice on strategies that address your specific retirement planning needs; see www.CFP.net or www.oneconnect.net

 

By: Michelle Buonincontri, Certified Financial Planner, Certified Divorce Financial Analyst

[email protected]

ARIZONA’S PRESUMPTION OF EQUAL PARENTING TIME

Is Arizona’s presumption of equal or near-equal parenting time in the best interests of children? We think not.

Several years ago, revisions were made to certain Arizona Family Law statutes that guide the Court in making custody decisions involving children. These revisions have had a tremendous impact on how the Court determines custody, and in our opinion, it is not a positive one. The changes have resulted in Arizona now having what is essentially a legal presumption of equal decision-making and parenting time in every case that comes before the court. We believe this approach hurts children significantly more than it helps them. It is also unfair to both mothers and fathers.

When the Arizona Family Law statutes were revised, the following changes, among others, were made:

  • 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)
  • The provision which, in determining custody, had previously required the Court to consider which parent had historically been the child’s primary caregiver, was removed, 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])

On its face, the changes made might seem positive. It is absolutely true that children are more successful 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. However, not all parents are loving, active, and involved, and unfortunately that is something the changes in the statutes failed to sufficiently address.

Since the changes were enacted, there has been a significant shift in the way decisions are made regarding legal decision-making authority and parenting time. Arizona Family Court judges do their very best to assure that the interests of children are protected, however, a judge is required to apply the law as it is written by the legislature and interpreted by the higher courts. In 2019 Woyton v. Ward, the Court of Appeals ruled that it was an error for the trial court to designate Mother as the primary residential parent of the child based on her historical role as the child’s primary caregiver. The court stated that “As a general rule equal or near-equal parenting time is presumed to be in the child’s best interests. Thus, the court errs, as a matter of law, when it applies a presumption against equal parenting time.”

This ruling was troubling, as it solidified the idea that there is a legal presumption of equal parenting time. If a presumption against equal parenting is wrong, why wouldn’t a presumption for equal parenting time be just as wrong? In our opinion, there should be no such presumption. The problem with a legal presumption is that it can only be rebutted by “clear and convincing evidence.” Proving a matter by clear and convincing evidence can be mountain to climb. As mentioned earlier, not all parents are created equal. Awarding parenting time based on a mere presumption, when one of the parents may not be nearly as nurturing, capable, or involved as the other is a serious mistake that can harm a child in the long run.

Although the ruling in the Woyton case was rather harsh, another Court of Appeals case published just this year, Gonzalez-Gunter v. Gunter, may ameliorate the presumption of equal parenting time to some degree. In that case, the Court affirmed that “as a general rule equal or near-equal parenting time is presumed to be in a child’s best interest,” but it then went on to state that: “The Family Court, however, has discretion to determine parenting time based on all the evidence before it.” The Court, in Gonzalez, explained that although judges may be limited on the conditions they can place on how a parent may exercise their parenting time (like ordering supervised visitation, for example), they are not limited in their right to unevenly allocate the amount of one parent’s parenting time, if necessary. In other words, judges are not required to order equal decision-making authority and parenting time if the parents are not equal in their ability to care for the child. But some judges still do.

The Gonzalez-Gunter case is an important departure from the ruling in the Woyton case. However, in many family law cases, the the distinction addressed in Gonzalez is being ignored and the courts are awarding equal parenting time, even where the parents are not equally competent, caring, and nurturing. This may be due to way some judges view the statutory requirement to consider the “potential” of the parent who has not provided equal care. But it can render the important “Best Interests of the Child” standard essentially a meaningless catchphrase. For now, it appears that that parents’ rights too often trump children’s rights in Arizona Family Court.

In addition to the fact that we do not believe equal parenting time should be a legal presumption, we also believe that a greater emphasis should be placed who has provided primary care of the child than on “the … potential future relationship between the parent and the child.” It is true that when a divorce occurs, a parent who may have been the a stay-at-home mom or dad will probably have to work, and the other parent will have to take on more responsibility with the children. However, the problem with focusing on the potential future relationship is that every relationship has the “potential” to be great, but many don’t turn out that way. Similarly, every uninvolved parent has the potential to change and become more involved, but it doesn’t mean that they will. The best predictor of a future relationship is past history, so emphasizing potential over the actual history of the relationship, or even giving it equal weight, can be a huge mistake. Ultimately, when a father or mother is awarded equal parenting-time and never lives up to their potential, it is the children who will truly suffer the consequences.

In our opinion, a parent’s potential should be one of the factors the judge considers in determining what is in the best interest of the child(ren), but we believe it was wrong for the Arizona Legislature to remove “which parent has been the primary caregiver of the child” from the list of factors in A.R.S. §25-403. Doing so indicates that the change to the statute may have been more political than really about children and their best interests.

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 and able to co-parent their children (which is obviously the best scenario). This is why each case should be decided on its own merits.

We believe that the Court should start with a blank slate in determining the child(ren)’s needs and which parent is better equipped to provide for those needs. If both parents are equally equipped, then there should be an award of equal parenting time and decision-making. However, where the best interests of the child would be served by one of the parents being given the majority of the decision-making authority and/or parenting time, then the Court should be able to make that ruling without having to overcome a presumption. The needs of the child should always come first.

By Gary Frank & Logan Matura

 

At the Law Firm of Gary J. Frank P.C., Gary Frank, Hanna Amar, and Logan Matura 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. Law firm Partner, Hanna Amar 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. Hanna has also acted as the President of the Young Lawyer’s Division of the Maricopa County Bar Association. Associate Attorney Logan Matura received her Juris Doctor degree from New York Law School in Manhattan, NY. While in law school, she served as an intern for a Family Court judge in the Bronx, NY, and was a member of the Family Attorneys Mobilizing club. Our firm handles 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 actions, enforcement actions, grandparent and step-parent and non-parent rights, as well as 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.

A PRESUMPTION OF EQUAL PARENTING TIME HURTS CHILDREN

Is Arizona’s presumption of equal or near-equal parenting time in the best interests of children? We think not.

Several years ago, revisions were made to certain Arizona Family Law statutes that guide the Court in making custody decisions involving children. These revisions have had a tremendous impact on how the Court determines custody, and in our opinion, it is not a positive one. The changes have resulted in Arizona now having what is essentially a legal presumption of equal decision-making and parenting time in every case that comes before the court. We believe this approach hurts children significantly more than it helps them. It is also unfair to both mothers and fathers.

When the Arizona Family Law statutes were revised, the following changes, among others, were made:

  • 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)
  • The provision which, in determining custody, had previously required the Court to consider which parent had historically been the child’s primary caregiver, was removed, 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])

On its face, the changes made might seem positive. It is absolutely true that children are more successful 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. However, not all parents are loving, active, and involved, and unfortunately that is something the changes in the statutes failed to sufficiently address.

Since the changes were enacted, there has been a significant shift in the way decisions are made regarding legal decision-making authority and parenting time. Arizona Family Court judges do their very best to assure that the interests of children are protected, however, a judge is required to apply the law as it is written by the legislature and interpreted by the higher courts. In 2019 Woyton v. Ward, the Court of Appeals ruled that it was an error for the trial court to designate Mother as the primary residential parent of the child based on her historical role as the child’s primary caregiver. The court stated that “As a general rule equal or near-equal parenting time is presumed to be in the child’s best interests. Thus, the court errs, as a matter of law, when it applies a presumption against equal parenting time.”

This ruling was troubling, as it solidified the idea that there is a legal presumption of equal parenting time. If a presumption against equal parenting is wrong, why wouldn’t a presumption for equal parenting time be just as wrong? In our opinion, there should be no such presumption. The problem with a legal presumption is that it can only be rebutted by “clear and convincing evidence.” Proving a matter by clear and convincing evidence can be mountain to climb. As mentioned earlier, not all parents are created equal. Awarding parenting time based on a mere presumption, when one of the parents may not be nearly as nurturing, capable, or involved as the other is a serious mistake that can harm a child in the long run.

Although the ruling in the Woyton case was rather harsh, another Court of Appeals case published just this year, Gonzalez-Gunter v. Gunter, may ameliorate the presumption of equal parenting time to some degree. In that case, the Court affirmed that “as a general rule equal or near-equal parenting time is presumed to be in a child’s best interest,” but it then went on to state that: “The Family Court, however, has discretion to determine parenting time based on all the evidence before it.” The Court, in Gonzalez, explained that although judges may be limited on the conditions they can place on how a parent may exercise their parenting time (like ordering supervised visitation, for example), they are not limited in their right to unevenly allocate the amount of one parent’s parenting time, if necessary. In other words, judges are not required to order equal decision-making authority and parenting time if the parents are not equal in their ability to care for the child. But some judges still do.

The Gonzalez-Gunter case is an important departure from the ruling in the Woyton case. However, in many family law cases, the the distinction addressed in Gonzalez is being ignored and the courts are awarding equal parenting time, even where the parents are not equally competent, caring, and nurturing. This may be due to way some judges view the statutory requirement to consider the “potential” of the parent who has not provided equal care. But it can render the important “Best Interests of the Child” standard essentially a meaningless catchphrase. For now, it appears that that parents’ rights too often trump children’s rights in Arizona Family Court.

In addition to the fact that we do not believe equal parenting time should be a legal presumption, we also believe that a greater emphasis should be placed who has provided primary care of the child than on “the … potential future relationship between the parent and the child.” It is true that when a divorce occurs, a parent who may have been the a stay-at-home mom or dad will probably have to work, and the other parent will have to take on more responsibility with the children. However, the problem with focusing on the potential future relationship is that every relationship has the “potential” to be great, but many don’t turn out that way. Similarly, every uninvolved parent has the potential to change and become more involved, but it doesn’t mean that they will. The best predictor of a future relationship is past history, so emphasizing potential over the actual history of the relationship, or even giving it equal weight, can be a huge mistake. Ultimately, when a father or mother is awarded equal parenting-time and never lives up to their potential, it is the children who will truly suffer the consequences.

In our opinion, a parent’s potential should be one of the factors the judge considers in determining what is in the best interest of the child(ren), but we believe it was a serious mistake for the Arizona Legislature to remove “which parent has been the primary caregiver of the child” from the list of factors in A.R.S. §25-403. Doing so indicates that the change to the statute may have been more political than really about children and their best interests.

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 and able to co-parent their children (which is obviously the best scenario). This is why each case should be decided on its own merits.

We believe that the Court should start with a blank slate in determining the child(ren)’s needs and which parent is better equipped to provide for those needs. If both parents are equally equipped, then there should be an award of equal parenting time and decision-making. However, where the best interests of the child would be served by one of the parents being given the majority of the decision-making authority and/or parenting time, then the Court should be able to make that ruling without having to overcome a presumption. The needs of the child should always come first.

By Gary Frank & Logan Matura

 

At the Law Firm of Gary J. Frank P.C., Gary Frank, Hanna Amar, and Logan Matura 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. Law firm Partner, Hanna Amar 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. Hanna has also acted as the President of the Young Lawyer’s Division of the Maricopa County Bar Association. Associate Attorney Logan Matura received her Juris Doctor degree from New York Law School in Manhattan, NY. While in law school, she served as an intern for a Family Court judge in the Bronx, NY, and was a member of the Family Attorneys Mobilizing club. Our firm handles 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 actions, enforcement actions, grandparent and step-parent and non-parent rights, as well as 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.

 

HOW TO SURVIVE THE HOLIDAY SEASON IN THE MIDST OF DIVORCE

The holiday season is supposed to be filled with joy, celebrations, and traditions. However, for those going through a divorce, it can be a dreaded time, filled with emotional pain, stress, and loneliness. And unfortunately, there is virtually no way to avoid being exposed to the constant ads, TV shows, billboards, and messages that highlight this “most wonderful time of the year,” making it all the more difficult. While going through a divorce during the holidays may, and likely will, be difficult, there are absolutely things you can do to lessen the emotional pain.

Give Yourself Room to Grieve

Going through a divorce is often compared to grieving a death. In many ways, the two are very similar. A good first step to take is to give yourself permission to grieve. It’s okay to feel sad, angry, or however you may feel. Don’t try to push these feelings away. You are entitled to be emotional!

Give yourself some time and space to work through these feelings. To help get through these feelings, you may want to start journaling, working with a therapist, or simply venting to a trusted confidant who can offer support. You will get through it, and you will be okay. 

Focus on Doing What’s Good for You

While the holidays can be super busy and stressful, be sure to make time this holiday season to take care of your physical, mental and emotional health

The holiday season typically coincides with cold and flu season, and this year, COVID-19 cases are on the rise too. This, along with the stress of going through a divorce, can run you down and make you more susceptible to catching something. Be sure to take care of yourself by getting plenty of rest, adequate exercise, and good nutrition (while of course enjoying some holiday treats)!

Mentally and emotionally, the holidays can be rough during a divorce, especially this year, when many are unable to be with friends and family. Make sure to take some time to do something for yourself, however you see fit. Maybe that means having a spa day at home, going for a long hike, or binge watching that popular Netflix show you’ve been dying to watch. Whatever self-care means to you, do it! If you feel good, you will be more likely to enjoy the holidays and bring more holiday cheer to others as well.

Surround Yourself with Support

 It can be tempting to crawl under the blanket and spend your first holiday without your ex sad and alone. There’s no reason to do that, though, and you are only punishing yourself. That’s not to say you can’t spend some holiday time alone, but don’t spend it all that way, if possible.

It is so important during the holiday times to surround yourself with supportive friends and family, especially while going through a difficult divorce. This year, it may be difficult to surround yourself with people in person, but even if it’s over FaceTime, Zoom, or Skype, it will help!

Spending time with family and friends can be a great distraction and can often help pull you out of a funk. And if you need a little extra help to get your holidays feeling merrier, be sure to ask for it—don’t wait for someone to guess what you need.

Identify Your Triggers

 When you are facing the holidays alone after divorce, it is crucial to try and identify what may trigger you, sending you into a sad, depressed, or hopeless state. And once you determine what that trigger is, try and avoid it! For example, if watching a specific holiday movie reminds you of your ex, don’t watch it! There are hundreds of other movies to choose from. If seeing cheery holiday TV advertisements brings up feelings of resentment, read a book instead (or, if you really want to watch TV, just mute it or turn it off during commercials).

Give yourself permission to avoid whatever it is you need to avoid, and don’t feel guilty for doing so. You need to do what’s best for you!

 Make New Traditions for Yourself

 With divorce comes so many changes. Some of these changes are uncomfortable, but some of these changes are good, and may perhaps even be fun. Be open to changing past traditions and/or adding some new ones. Any past traditions that were once wonderful, but now bring up negative emotions, can be done away with and replaced by new and exciting activities. Try and figure out what new tradition you can introduce this holiday season to keep things light, happy, and fun.

Also, consider buying yourself a holiday gift. Odds are, you won’t be exchanging gifts with your ex this year. Since your gift giving list has decreased by at least one, why not add yourself to the list? If you do, you’ll be able to buy yourself something that you know you will truly enjoy this holiday season.

Look for the Lesson Hold on to Hope

I recently read an article that analogized divorce to a great movie. It explained how in a movie, there are elements of suspense, sadness, joy, pain, and anticipation before the happy ending. The author explained that this is similar to divorce. There will be good times and bad, and while things may look down when you’re in the midst of it, eventually things will get better. It’s so true!

Another way that divorces and movies are similar is that they both have a lesson you may not figure out until the end. While it may be difficult, try and find the lesson through your grief. Try and figure out what you can learn through this painful time, and how you can grow from it. Figure out how you can change your outlook and think beyond your current situation.

Find the positives in this difficult situation, and really just in life. Remember what you have to be grateful for and strive to make each day great in whatever way you can. Before you know it, this difficult time in your life will be over, and you will find your happy ending.

By Logan Matura

 

 

At the Law Firm of Gary J. Frank P.C., Gary Frank, Hanna Amar, and Logan Matura 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. Law firm Partner, Hanna Amar ,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. Hanna has also acted as the President of the Young Lawyer’s Division of the Maricopa County Bar Association. Associate Attorney Logan Matura received her Juris Doctor degree from New York Law School in Manhatten, NY. While in law school, she served as an intern for a Family Court judge in the Bronx, NY, and was a member of the Family Attorneys Mobilizing club. Our firm handles 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 actions, enforcement actions, grandparent and step-parent and non-parent rights, as well as 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.

Five Tips for Co-Parenting During a Pandemic

For just about 10 months now, we have been living through unprecedented times. Most businesses are still closed or operating with restrictions, some schools are still remote, and life overall really hasn’t gone back to “normal,” as many expected it would have by now.

During the COVID-19 pandemic, many families have discovered that previously stable arrangements may not be able to withstand the stresses created by these changes. Divorce rates have skyrocketed. And for previously divorced families whose co-parenting and custody arrangements were already contentious, these changes may be intensifying conflicts and creating new ones.

While a crisis like this can certainly be stressful, it can also be a good time for both parents to overcome their differences and work together. Here are some tips for co-parenting during a pandemic:

  1. Stay Informed and In Touch

Because there is so much uncertainty that comes with a pandemic, it’s crucial that both parents stay informed. Parents should periodically check official state and local websites, making sure that they are up to date on COVID-19 guidelines. Parents should also check their child’s school website frequently, taking note of any closures or schedule changes that may be happening.

It’s also essential that both parents keep communication open as much as possible throughout the pandemic. Parents are understandably nervous for the health and safety of themselves and their child. Keeping the other parent in-the-loop and answering their calls, texts, or emails in a timely manner can help alleviate some of the stress and anxiety. If you or your child are feeling sick, or if you think you or your child may have been exposed to COVID-19, be up front with the other parent and let them know immediately.

  1. Follow Your Parenting Plan and Talk Through Possible Schedule Changes

Parents should continue to comply with existing parenting time orders as much as possible. Failure to comply with court-ordered parenting time may lead to being held in contempt of court.

In certain circumstances, however, it may not be possible or realistic to comply with existing parenting time orders. Perhaps one parent lives in another state, has a compromised immune system, or is an essential worker. Maybe one parent is actually sick with COVID-19 or has been exposed to the virus. In circumstances like those, it may be in the best interest of your child to be flexible and renegotiate custody and visitation schedules.

Parents should use common sense to navigate these difficult circumstances. While the idea of seeing your child less may be upsetting, understand that the pandemic will not last forever. It’s okay to make modifications to your parenting plan in times of crisis to do what’s best for your child.

If parents need to temporarily make changes to their visitation schedule for whatever reason, consider using technology to maintain communication and interaction between the parent and child as much as possible. Emails and text messages are quick and efficient, and there are even court-approved apps (such as ourfamilywizard.com) that make communication between parents easier and less contentious. Parents should also try to agree on a make-up schedule for lost in-person parenting time.

If parenting time hasn’t changed for your family, consider creating a backup plan in case it needs to. Talk about what would happen in the event one parent gets sick or is exposed; the child gets sick or is exposed; school closes again; etc. This way, if something happens, you’ll already have a plan.

  1. Talk to Your Child

Check in with your child! They are living through intense periods of change and uncertainty, and that can be really difficult for them. Be there for them. Understand that there are varied ways children deal with stress and anxiety. Listen to their concerns and be supportive and empathetic. Make sure not to give them too much information about court cases or parental disputes. And be careful not to bad mouth the other parent to your children. They need permission to love you both.

Now is the time to try to be the best parent you can under the circumstances. Reassure your child that we will get through this, that some changes are only temporary, and most importantly, that they are loved and cared for.

  1. Take Care of You

Co-parenting during a pandemic can be exhausting. While you probably feel like you are focusing most of your attention on your child’s needs, don’t forget to practice a little self-care. Take a little time for yourself each day, even if it’s just a few minutes to meditate, do yoga, or take a bath.

Get help if you need it. If you’re feeling anxious or overwhelmed, consider counseling or therapy. Support from a mental health professional can really help. Working these issues out can allow parents to better care for their families.

Most importantly, be compassionate with yourself. You are human and you are living through unprecedented times. It can certainly be hard at times, but you can and will get through it.

  1. Figure Out What Works Best for You!

“Different strokes for different folks,” as they say! There is no correct way to co-parent during a pandemic. Work with your ex to figure out what works best for you both, and your child. This pandemic is a perfect opportunity for co-parents to come together and make decisions in the best interest of the child they both love.

By: Logan Matura

 

 

At the Law Firm of Gary J. Frank P.C., Gary Frank, Hanna Amar, and Logan Matura 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. Law firm Partner, Hanna Amar ,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. Hanna has also acted as the President of the Young Lawyer’s Division of the Maricopa County Bar Association. Associate Attorney Logan Matura received her Juris Doctor degree from New York Law School in Manhatten, NY. While in law school, she served as an intern for a Family Court judge in the Bronx, NY, and was a member of the Family Attorneys Mobilizing club. Our firm handles 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 actions, enforcement actions, grandparent and step-parent and non-parent rights, as well as 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.

THE AMAZING POWER OF EMPATHY

          There’s this thing called “Empathy.”  And it’s a powerful force.  When I don’t see eye-to-eye with someone, I try very hard to understand why that person feels the way they do, and why their reality is so different from mine.  When I take that approach, I am usually able to comprehend their logic or at least catch a glimpse of where that person is coming from, even if I don’t agree with their reasoning or conclusions.
          Unfortunately, many people are unwilling or unable to see a problem through another person’s eyes.  And in today’s political environment, empathy and compassion are often considered a liability. Why? Maybe people are afraid that trying to understand another’s point of view will somehow be seen as a tacit admission that the person is right.  Maybe they fear that conceding a point, even a small one, is tantamount to losing the debate.  Or maybe they’re just afraid of being wrong.
          But “Empathy” is not a weakness – it’s a strength.  Failing to consider a problem from the opposing point of view often leads to a stalemate and continued conflict.  Refusing to make even a minimal concession or a reasonable compromise only assures that competing parties will never be able to bridge the gap and resolve their differences.  It heightens the conflict and can cause a small spark to become a raging fire.
          When two people are going through a divorce, it’s a scary and emotional time in their lives.  They may wonder, “What’s going to happen to my children?” or “How can I protect the assets that I’ve worked my whole life to accumulate?”  It can feel as though the ground beneath them has fallen away and they have nothing to hold onto.  Fear grips them.  And eventually their fear morphs into anger.  They run out and look for the meanest, most aggressive attorney they can find.  But they soon learn that the divorce litigation, which is an adversarial process to begin with, has only increased their fear and inflamed their anger.
          With this mindset, it is hard to make concessions or compromises.  It is difficult to put yourself in the shoes the other person (who, by now, may seem like an enemy) — but that is exactly what you need to do.  Because being able to view the situation through the eyes of that person will enable you to better understand their perspective — their fears, their insecurities, their unstated needs.  And that insight, along with a willingness to make reasonable concessions, could allow you to resolve your dispute amicably, and save thousands of dollars in the process.
          A father going through a divorce might be afraid that the mother is trying to take his children away from him.  A wife who was a stay-at-home mom for many years might be afraid that she won’t be able to support herself after the divorce.  By trying to understand those fears, you are better able to address the problem.  Empathy also allows you control your own fear and insecurity.  You are less likely to be angry with your soon-to-be ex-spouse if you understand that his/her motives are not evil.  That person is just fearful, like you are.
          In the end, empathy enables you to comprehend the other party’s state of mind, which may result in finding a solution that allows you to meet their needs without compromising your own.

 

 

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. 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 Amar 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. Hanna has also acted as the President of the Young Lawyer’s Division of the Maricopa 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 actions, enforcement actions, grandparent and step-parent and non-parent rights, as well as 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.

 

FROZEN EMBRYOS & DIVORCE

Early this year, headlines circulated in Arizona, and even made national news, when a woman tried to use her frozen embryos after she and her husband got divorced. For Ruby Torres, her journey to becoming a mother was stopped short when the Arizona Supreme Court ruled that she could not use the frozen embryos without the permission of her ex-husband.

A new issue for the Court to consider in the modern era of technology, the story began in 2014 when Ruby Torres was diagnosed with cancer, requiring treatment that could cause infertility. She and her then boyfriend John Terrell decided to enhance their chances of becoming parents in the future by fertilizing her eggs and freezing the embryos using a process called cryopreserving, with future plans for in vitro fertilization (IVF). Both Torres and Terrell signed consent forms and an agreement that contractually bound them to the rules commonly attached to the process and procedure. The contract had options if the couple did not wish to use the embryos in the future. The couple could (1) discard the embryos, (2) donate the embryos to another couple, or (3) allow one partner to use the embryos with the permission of the other. This is what came to be the continuous battle in court.

In 2017, the couple separated and legally filed for divorce. The embryos were still frozen and viable. Torres wanted to become a mom, and after her cancer treatments, using IVF would give her the best chance. But Terrell did not want to father any children with his now ex-wife. After conflicting rulings in the trial court and the appellate court, the Supreme Court attempted to navigate these unfamiliar waters with grace and fairness, dually noting the conflicting personal and private issues that were now in their hands.

Ultimately, the court decided that since the contract was valid and enforceable and Terrell had not given permission, the fertilized eggs could not be used by Torres, and that they should be donated to another couple. The Court explained that Terrell’s right not to be forced to become a parent outweighs Torres’ right to procreate.

This complicated case triggered a new law in Arizona that allows a former spouse to use the embryos even if their partner objects, as long as he or she doesn’t require the ex-spouse to pay child support or take other parental responsibilities. Like with any other contract or big life decision, it may be wise to contact an attorney to help understand all of the ins-and-outs of what you and your spouse are signing up for.

Citing: Terrell v. Torres, 456 P.3d 13 (Ariz. 2020)

By: Maddison Koper

 

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. 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 Amar 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. Hanna has also acted as the President of the Young Lawyer’s Division of the Maricopa County Bar Association.  We handle Family Law cases in the areas of , custody (now called “Legal Decision-Making and Parenting Time), relocation (move-away), division of property, spousal and child support, modification actions, enforcement actions, grandparent and step-parent and non-parent rights, as well as 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.

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