The A-B-C’s of Divorce

Divorce can be stressful and confusing. It’s always good to have a plan. So to assure that your divorce goes smoothly, follow these steps – from A to Z. 

A – Ask questions – If you have a question for your attorney, ask it! Asking questions can help you to stay informed and ease any anxiety you may have.

B – Be smart – Think about everything you do and say before you do it, or say it. You should always assume your ex (or soon-to-be-ex) is recording your phone conversations and taking screen shots of your texts, emails, and posts on social media, and that the judge will eventually see them.

C – Create a checklist of things you need to do – After you make the decision to get a divorce, start keeping a list of things you need to do (get any documents together, speak with an attorney, etc.) It will keep you well-organized and prevent you from forgetting something important.

D – Don’t get caught up in your feelings – Try not to make decisions based on your emotions throughout this process. Wait until the storm has passed and you can think more clearly. That’s not to say you can’t have feelings and emotions—you can, and you should. Allow yourself to feel however you are feeling, but don’t act in the heat of the moment; you’ll certainly regret it later.

E – Every case is different – You may have one friend who is telling you how quick and easy her divorce was, while your other friend went through a divorce that took years and was extremely high conflict. Don’t compare yourself to others. Every case is truly so different!

F – Focus on the moment – Take things one step at a time. Thinking about the past and dwelling on things you both could have done differently will not help, nor will thinking about the future and worrying about how things will change. Live in the moment and take it day by day.

G – Get your documents organized – Organize everything! Get copies of any tax and income documents, bank and credit card statements, signed contracts, real estate documents, insurance policies, documents related to investments or retirement accounts, estate planning documents, etc. Getting things together now will save you lots of time, energy, and money in the future!

H – Have reasonable expectations – Try and remember that sometimes things are not as quick and easy as you’d like. Be patient and understand that the divorce process can be long and often exhausting. Try to manage your expectations and be as realistic as possible. If you’re not sure what to expect, talk to your attorney.

I – Identify what makes you happy – Focus on what makes you happy during this difficult time of your life. Find a new hobby, spend time with friends, practice self-care, etc. Do whatever you have to do to feel good!

J – Journal – Keeping a journal is probably one of the best decisions you could make throughout this process. In this journal, jot down all events involving custody and visitation, any conversations you might have had with your soon to be ex, etc. You don’t have to include too many details—just keep it accurate and to the point. That journal could later refresh your memory when the trial rolls around, and you might be able to use it in court to prove that something happened on a certain date.

K – Keep the other parent informed – If you have children, make sure you are keeping the other parent in the loop. Let them know if the child is sick and you made a doctor’s appointment; or of any upcoming school events, conferences, breaks, etc. Send them copies of any report cards, doctor’s notes, and anything else you think they might want to see. Having a good co-parenting relationship with your ex will help your children tremendously in the future.

L – List out your property – On top of compiling lots of documents, it will be super helpful for you to make a list of all your property, such as furniture, vehicles, and other personal items. Be sure to differentiate between property you came into the marriage with, property you got during the marriage, and property you received by gift or inheritance.

M – Manage your stress and anxiety – Try and deal with any stress or anxiety you may have in a positive way. Don’t look to drugs or alcohol, that will certainly not help you in the long term. Getting outside, exercising, eating right, meditating, and practicing self-care are all really great ways to manage your stress and anxiety. It’s also never a bad idea to speak with a licensed therapist; they can teach you techniques to manage your stress and help you talk through your feelings in a really positive way.

N – Never share with others what you have discussed with your attorney – Conversations you have with your attorney and their staff are protected by attorney-client privilege. Once you share what was discussed in your conversation with others, that conversation is no longer privileged and confidential, and you or your attorney could be forced to disclose it in court.

O – Oaths are taken seriously by the court – When you sign court documents, speak in a deposition, or speak in court, you are doing so under oath. Any discrepancies in your stories will lead to a loss of trust by the judge and ultimately can subject you to perjury. Just tell the truth and you will not have to worry!

P – Pace yourself – Divorces can take quite a while to be finalized. Be patient and don’t rush it!

Q – Qualifications are important, but so is how an attorney makes you feel – When you are looking for an attorney, don’t just look at their credentials. While credentials and experience are extremely important, so is how you “click” with your attorney. An attorney should make you feel comfortable and heard.

R – Refrain from speaking negatively in public about your ex – This is truly one of the most important pieces of advice I could give to someone go through divorce. Do not speak negatively about your ex to others, do not speak negatively about them to their friends or family, and most certainly do not post about them on social media!!! This is especially true if you have children. It will not do you any good to badmouth your ex, and it could hurt your court case.

S – Substantiate your claims – Document everything! Organize documents you already have and keep any documents you get throughout this entire process. On top of important documents like tax returns and bank statements, keep other documents like photos, copies of emails, and copies of text messages. These may all be helpful throughout your case.

T – Talk about alternatives to litigation – We believe it is never a bad idea to look to alternatives to litigation, such as mediation, whenever possible. Mediation can be a really peaceful, cost-effective option for both parties. It allows you to be in charge of negotiating the terms of your own divorce and property division, rather than leaving those important decisions to a stranger (the judge).

U – Understand the law and your rights – While it is important to trust that your attorney has a good understanding of the law and your rights, it’s also very important for you to have a basic understanding of those things, too. Having a genuine understanding of the law will help you to make the best decisions possible for you and your family. Take the time to do some research, read some books, and most importantly, ask lots of questions of your attorney.

V – Value the advice you are given – Those who truly value and consider the advice they are given by their attorney are those that are most successful. With that being said, ultimately only you know what’s best for you! Don’t be afraid to talk to your attorney if you are uncomfortable about the case plan.

W – Work hard to keep the peace – It can absolutely be difficult at times to deal with an ex without losing your cool. However, the more you keep the peace, the easier and quicker the process will be! (P.S. – Compromise is a good thing, but that doesn’t mean giving-in to unreasonable demands.)

X – Xpect some stress – Okay, I know this doesn’t actually start with an “x” but it’s close enough! Throughout the process, you can expect that there will be some stress. You will likely feel overwhelmed at times. If you don’t feel like you can deal with the stress on your own, look to a licensed counselor to help you get through it, and lean on family and friends as a source of support.

Y – You do have some control over the outcome – While ultimately there are some parts of divorce that you do not have control over, there are some parts that you do. Make wise decisions, and when in doubt, ask your attorney for advice before you act.

Z – ZZZ (Get some rest!) – Ok, “z” is a hard letter to come up with something for! But really, get those “ZZZs” and make sure you sleep well. Being well rested will help you mentally, physically, and emotionally.

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.

 

Five Tips For Dealing with the Stress of a Separation or Divorce

 

Going through a breakup, separation, or divorce, can be really tough. It can turn your world upside down and make it difficult to stay positive. To make sure you stay emotionally strong and healthy, it’s important to learn how to deal with divorce stress in a productive way.

Here are some tips on how to cope with the stress of a separation or divorce:

  1. Take care of yourself emotionally and physically

It is so important to take care of yourself both emotionally and physically while you are going through a breakup. It can be very easy to spend your days watching sad movies in bed, eating ice cream straight out of the pint and drinking a bottle of wine. After all, that’s what the movies say you’re supposed to do, right? Well in reality, doing that won’t be beneficial to you physically or mentally in the long run. Instead, take time out to exercise, eat well, and relax. Do things that nurture you. Read a good book, get plenty of rest, take a hot bath, develop a new hobby, explore nature, surround yourself with positive people. Now is the time to practice “self-care,” whatever that means to you!

  1. Give yourself permission to “feel all the feels”

Coping with separation or divorce is often compared to coping with death. This makes sense because essentially you are grieving the loss of a marriage. With grief comes a whole range of emotions. Let yourself feel whatever you are feeling and know that it’s normal and healthy. Don’t feel bad for feeling bad, and definitely don’t feel bad for feeling okay. Once you let yourself go through the grieving process, it will be easier to move on.

  1. Don’t make any hasty decisions

As you navigate through such a stressful period in your life, try not to make any major decisions or changes. It can be very difficult to make great decisions when you are literally going through such a difficult time. Be patient with yourself—take it one day at a time until you feel as though your head is clear, and you are ready to make rational decisions, not ones driven by emotions

  1. Find your support system

Don’t go through this period of your life alone. This is the time to find your people. Whether it’s friends, family, a therapist, or a support group, lean on people that build you up and help you to be the best version of you. Try not to isolate yourself, no matter how hard it may be—push yourself to get out, socialize, and enjoy life with others

  1. Think positively and move on 

Easier said than done, right? It can be extremely difficult to maintain a positive attitude during this time but try your best. Keep realistic expectations, be flexible, focus on the good things in life, and surround yourself with happy things. Take the time you need to heal from the breakup and those feelings of loss. You will get through this!

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]

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

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

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

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

But not anymore.

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

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

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

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

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

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

 

 

At the Law Firm of Gary J. Frank P.C., both Gary Frank and attorney Hanna Juncaj are strong litigators and compassionate counselors. Gary Frank is a Family Law Attorney with over 30 years of experience as a litigator and mediator. He has also acted in the capacity of a Judge Pro Tempore in the Maricopa County Superior Court, and served on the Governor’s Child Abuse Prevention Task Force.  Hanna Juncaj is a highly-skilled attorney with a passion for Family Law and children’s issues. She has extensive courtroom experience, and is also a certified mediator. In addition, Hanna is an active member of her County Bar Association.  We handle Family Law cases in the areas of divorce, custody (now called “Legal Decision-Making and Parenting Time), relocation (move-away), division of property, spousal and child support, modification and enforcement actions, grandparent and non-parent rights, and all other matters pertaining to families and children. If you are in need of a consultation, call us today at 602-383-3610; or you can contact us by email through our website at www.garyfranklaw.com.   We look forward to hearing from you.

 

 

 

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

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

Among the changes to the law were the following:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

 

How Spousal Maintenance is Determined in Arizona

Spousal Maintenance, known in many other states as “Alimony,” is the grayest of gray areas in Arizona Family Law.

Determining whether to award spousal support during a divorce is a matter of judicial discretion.  This means that it is up to the judge to decide whether an award of spousal maintenance would be appropriate, based on an examination of the facts of your particular case.  The amount and length of the spousal maintenance award is also determined by the judge.  An award of spousal maintenance may be granted in favor of either spouse, depending on whether it is the Husband or the Wife who is in need of support.

In making her/his decision, the judge will consider the factors listed in Arizona Revised Statutes, Section 25-319(A).  Factors in that section 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.

But there is another important part of the equation —  How much should be paid in spousal maintenance?  . . . And for how long?

For the answer to these questions, the judge turns to section B of the statute.  The problem is that there is nothing in Section B that specifically tells the Court the amount, or the duration, of a spousal maintenance award.  Instead, there is a second list of factors for the judge to consider in making his or her decision.  Here are the factors:

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;

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.

As you can see, there is absolutely nothing in the statute that tells the judge how much the spousal maintenance payment should be — or for how long it should be paid.  Unlike child support decisions where the Court has a set of guidelines that can be used to determine the monthly support amount, there is no set of guidelines for the determination and calculation of spousal maintenance.  Therefore, the final result will depend on how each judge views the facts, and how he or she applies the statutory factors.  This leaves the door open for wide variations in spousal maintenance awards.

The bottom line is this:  It is important for a person seeking spousal maintenance to present a solid case using a “needs-based” analysis.  Thorough preparation, good organization, and a persuasive presentation will give you the best chance for success.  This is one area of law where a strong, experienced attorney can make an enormous difference.

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.

YOU ARE THE ADULTS – KEEP THE KIDS OUT OF YOUR DISPUTE … PLEASE!

Mister Rogers (talking to a young boy whose parents are going through a divorce):
“I think one of the toughest things for children is for their parents not to be getting along, and so divorce feels like it’s just ripping a piece of cloth apart, and for children to try to understand that is sometimes way beyond their capacities.  So you really need somebody to help you know that both your mother and your dad love you.  It wasn’t your fault that your mom and dad don’t live together, and it won’t be your fault if they get a divorce.  As a matter of fact, you are probably one of the best things that has ever happened to your mom and your dad.  And they’ll love you as long as they live – and even longer.  But for a little child to have a mom and dad that don’t like each other, it’s very important for you to know that they still love you.”*
A divorce can be devastating for a child.  But it doesn’t have to be.  Studies show that where the parents keep the children out of the middle of their dispute, and where they are able to find a way to co-parent (in spite of their differences), then the children will likely turn out just fine.  However, this is easier said than done.  When a relationship falls apart, it is a difficult and emotional time, even for the strongest and best of us.  Fear, sadness, and anger are human emotions, and to struggle with these feelings during a divorce or separation is normal and natural.  But remember that while you, as an adult, are able to make sense of the situation and understand your feelings – a child (even a teenager) is not capable of doing so.  He or she is helpless, confused, and scared.  A child is likely to feel that the problem is, somehow, his or her fault, and often those confused feelings and a deep sense of hurt will result in defiant behavior.  Or worse.  Children who are placed in the middle of their parents’ dispute can sometimes turn that anger and defiance inward, which may cause them to think or act in self-destructive ways.
While in the midst of a crumbing relationship, it is easy for even the most loving, caring parent to be temporarily blinded by fear and anger.  Arguing in front of the children, talking bad about the other parent in their presence, sharing inappropriate information about parental problems or a divorce case, forcing children to choose between parents, demonstrating violence – these are all things that can occur during a difficult divorce or separation.  But you, as a parent, must understand that this type of behavior can have long-term negative consequences for the children.  In fact, it can cause irreparable damage and change the course of their lives.  So, what can you do to prevent that from happening?
HOW TO KEEP CHILDREN SAFE AND SECURE
As difficult as it might be during this time of extreme stress, it is up to you to constantly remind yourself that you are the adult – you are the parent – and it is your responsibility to protect the best interests of your child.  Obviously, pretending that nothing is wrong is not the answer.  That would be dishonest and not-at-all helpful.  Your child knows that something is wrong.  Most experts will tell you that the best approach is to talk to the child in a reassuring and age-appropriate way.  The key is to let the child know:  “This is not your fault.  We are your parents and, even though we are having some grown-up problems right now, we both love you and we will always be there to take care of you.”  This is a message that every child needs to hear.  It provides a sense of protection and stability that will help the child to get through this difficult experience.
But what do you do if the other parent is incapable of protecting the child and keeping him or her out of the middle of the dispute?  Answer:  Then you be the adult.  Studies show that as long as there is one stable, responsible parent who is protecting the needs of the child, then that child will likely turn out fine.  You can be that parent.  It is difficult, I know, but somebody has to take on that role – so it might as well be you.
HELP IS OUT THERE
For a parent going through a difficult divorce, separation, or custody case, please be assured that there are places you can turn for assistance and support.  Therapeutic counseling, for you and/or the children, is often extremely helpful.  For a parent facing an acrimonious split, it can feel like you are the only person in the world who has ever experienced such a thing.  But a good therapist has helped hundreds or thousands of families with similar problems, and he or she has developed a broad range of solutions that can help you, too.  Your church or synagogue can be an enormous source of support.  And there are many divorce support groups out there with people who are going through the same thing that you are now.  Through these groups, you can receive not only ideas and support, but you may also develop lasting friendships.  If your child is having problems, it might be helpful to notify the school and let them know that the family is going through a separation or divorce.  An understanding teacher or administrator can be very supportive, and many schools have psychologists who can counsel the child at no cost to you.
HOW TO AVOID FUTURE PROBLEMS
I am a big believer in counseling during – and after – a divorce.  I often recommend “Post-Divorce Counseling” for my clients.  Co-parenting after a divorce can be a new and sometimes challenging experience.  There will be times when your child is spending extended periods of time with the other parent and, while you were able to be there to supervise when you were living together, you will now be unable to intervene or even know what is happening in the other parent’s home.  This can cause the fear and stress level to intensify, which can lead to anger and miscommunication.  The best remedy, in my opinion, is “Post-Divorce Counseling.”  This is where the parents meet with a counselor on a regular basis – maybe every 6 months or every year – to discuss issues regarding the children, and to make sure that the parents are “on the same page.”  I have found that this type of counseling can help parents feel confident that they are being heard and that the children’s needs are being addressed.  It also helps the parents avoid future disputes — an all-to-common problem that often results in more trips to the courthouse, which can be time-consuming, expensive, stressful, and destructive.   
MAKE SURE YOUR CHILDREN WILL BE OK
So, there is a reason to be optimistic.  Being the child of divorced parents is no longer a stigma.  Today, it is the norm.  If you will just make the effort to assure your children that they are loved, and that their parents will be always be there for them (even if the parents are no longer living together), then it is likely that the children will grow up healthy, happy, and well-adjusted.  If you are able to co-parent, or at least keep the children out of the middle of any disputes, then their future looks bright, indeed.

Gary J. Frank is an Arizona attorney and former Judge Pro Tem with over thirty years of experience in dealing with custody and parenting issues in Family Court.  If you are in need of a consultation regarding divorce, child custody, or any other area of Family Law, please do not hesitate to contact us by telephone (602-383-3610) or by email through our website.  We look forward to hearing from you. 

* From the book “The Simple Faith of Mr. Rogers” by Amy Hollingsworth

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