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.

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.

 

ARIZONA’S FAMILY COURTS ARE OPEN, AND OPERATING EFFICIENTLY, DESPITE COVID-19

 

In the midst of the pandemic, you may be wondering how your family law matters will be affected by court closures and the constantly changing regulations caused by COVID-19. The Arizona courts are committed to minimizing spread of the virus and creating the safest environment possible while still serving the needs of the community. While family law matters are normally not an exciting part of life, sometimes they are necessary. If you are facing a family issue, such as a divorce or custody matter, a grandparent visitation dispute,  a relocation (move/away) request, or a modification or enforcement case that may need to be handled by the courts, rest assured that the Court’s COVID procedures and modification of in-person requirements will not prevent the work from getting done to help lead to a solution for you and your family. When we meet with you, we will cover all of the major points to help you understand how COVID-19 is impacting the family courts. If you want to check out the guidelines directly from the Arizona Courts here is a link.

The first thing you should know is that the family department will continue to address “essential services” in person. These include applications for orders of protections, contested hearings on orders of protection, motions for temporary emergency orders, and hearings on temporary emergency motions. In person court appearances do require the use of a mask and social distancing. Other court hearings may be held in person at the discretion of the judge.

Although emergency proceedings will continue in person, other matters are equally important. In this new era of Zoom meetings and video-conferences, the court system has adapted its process to be conducted via GoToMeeting. GoToMeeting is a secure platform that allows the judge to interact with the attorneys and the clients in a similar fashion to how they would in person. If you have an early resolution conference, mediation, open negotiations, decree on demand, parenting conference, or even a contested hearing or trial scheduled you can plan to take your video call from the comfort of your home via GoToMeeting. You’ll need to download the app, and although there is sometimes an occasional wifi related glitch, the court system and your attorney will proceed as usual in order to create a meaningful outcome.

In the early weeks of COVID-19, some cases were faced with delays and rescheduling. By now, the courts have managed to get things back on track and proceed as usual. In many instances, the Coronavirus may catapult the Arizona court system into a more modern era of technology. A video conference means dodging the stress of the courtroom, avoiding downtown traffic and parking, and preventing you from having to take unwanted time off from work for in-person court appearances. In the future, some types of court matters may be conducted by phone or video-conference permanently, even after the COVID-19 pandemic has become a thing of the past.

With the recent increase of COVID cases in Arizona, the courts have not determined when things will return to the way they were before. For now, and into the foreseeable future, the courts will operate telephonically and by video-conference as much as possible. But, in the meantime, your family law matter will continue to be a productive and meaningful process until a solution is reached.

 

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 is 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 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.

 

 

 

BUSINESS AS (UN)-USUAL

Need help? We’re here. Because even in the midst of all the current chaos with COVID-19 and social distancing, life goes on. People still have to shop for basics. Parents still need to find a way to make sure their children continue their education. And those lucky enough to have jobs still need to work. Our world has been shaken to its core. Many of our usual routines have been disrupted, maybe permanently. The world seems to be filled with anxiety and uncertainty.

In the meantime, for many people who are stuck in rocky relationships things are not getting better. In fact, they are getting worse. And questions abound: Is divorce still an option? For parents who need to make adjustments in legal decision-making or parenting plans – can they file with the Court to modify their existing orders? Can a parent sue to enforce existing orders that are being violated? Can a parent who needs to move with the children file for relocation? For grandparents who are being blocked from seeing their grandchildren – can they ask the Court to award them visitation or custody? Can a parent who has lost their job file for a modification of spousal maintenance or child support? — The answer to all these questions is “Yes.”

Through all the chaos of the coronavirus pandemic, the courts are still open and functioning (although they are functioning slightly differently, as will be discussed below). Judges are still accessible. Cases are still being filed. Trials and contested court hearings are still taking place. You can still get your needs met in the Family Division of the Maricopa County Superior Court.

Of course, procedures have been put in place in the courts that are designed to keep people safe. For instance, on a temporary basis, non-evidentiary hearings (those where it is not necessary to present evidence or testimony) are now being held by telephonic conference call with the Court, rather than the parties and attorneys having to appear in person. And trials are generally being postponed. However, Emergency Custody matters, and Order of Protection hearings are being held in-person, as before.

The bottom-line is that people can (and are) filing for Divorce; Modification of Legal Decision-Making Authority; Modification of Parenting-Time; Enforcement of Orders; Relocation; Grandparent Visitation or Custody; Establishment of Paternity; Child Support, and Spousal Support, etc. The courts are open and functioning. They may not be operating as normal, but they are operating efficiently. You can still get what you need.

Our office is open and functioning efficiently, as well. Our attorneys are primarily working from home offices, as are many people, and we are handling most client meetings by video-conference, such as FaceTime, Skype, Zoom, or Google Hang-Outs – or by phone – but we are just as available and accessible as we’ve always been. Our office in the Biltmore area of Phoenix remains open and is still available for conferences, depositions, mediation, etc.

Life doesn’t stop, even in the midst of the current disruption. If you need us, we are here for you.

 

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 both in the courtroom and at the negotiation table, with a passion for Family Law and children’s issues. She is also a certified mediator. In addition, Hanna is the President of the Young Lawyers 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 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 garyfranklaw.com.  We look forward to hearing from you.

Prenuptial and Postnuptial Agreements: Kiss of Death or Wise Decision?

 

Without a doubt, marriage can be an incredible and happy time for a couple. However, it is important to remember to protect yourself and your assets, and to be forward thinking. The most common way for a person to do that is through a prenuptial or postnuptial agreement (better known as a “prenup” or “postnup”).

The main difference between a prenuptial agreement and postnuptial agreement is the timing of when it is signed. A prenuptial agreement is prepared and signed prior to the marriage being consummated. A postnuptial agreement can be done any time after a couple is already married.

Within both a prenup and postnup, the couple can decide how to handle a variety of topics, if the relationship were to end. These topics may include whether money or other assets are to be considered community property or the separate property of the person who earned or owns it. It may also include how property is to be divided in the event of a divorce; or a determination of how much spousal support will be paid (or that no spousal support will be paid at all). However, courts will not honor any part of an agreement that is unconscionable or might violate public policy (if there is a clause that does not allow a spouse to gain weight, for example), or that limits any rights regarding a child or future child (for instance, spelling-out who will have decision-making authority for a child, or limiting the amount of child support that could be awarded, may be ignored by the Court).

In the past there was a social stigma around these types of agreements. People would ask: “Why would you possibly go through with a marriage, when you are already planning for it to fail?” But today prenuptial and postnuptial agreements are accepted and commonplace. The real advantage is certainty. These agreements are a way for a couple to come together, amicably, and decide a potential future for themselves. Prenups and Postnups are increasing in popularity and the stigma has all but disappeared.

The legality of a prenuptial or postnupial agreement is codified in Arizona state statutes ARS §25-201 through §25-205, and in order to be valid and enforceable there are a few requirements. The agreement has to be signed by both parties, executed voluntarily, and be in no way unconscionable at the time it was executed. An example of an agreement being unconscionable would be if one spouse does not reasonably disclose property or other financial obligations, or if a party signed the agreement under duress or coercion. There is no requirement that the agreement has to be executed by an attorney, nor any formal requirements as to formatting. However, as mentioned previously, the agreement will not be honored by a court if it is unconscionable, or if elements of the agreement are contrary to public policy.

If you are interested in learning more about prenuptial or postnuptial agreements, please do not hesitate to contact us for a consultation. We can be reached at 602-383-3610 or by email at [email protected] or [email protected]

 

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. 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.

 

The information contained in this blog post is provided for informational purposes only, and is not intended to be, nor should it be construed as, legal advice. Reading this information does not constitute an attorney-client relationship. For advice regarding your individual situation, you should consult with an attorney. To schedule a personal consultation, you can contact us at 602-383-3610 or reach us by email at [email protected] or [email protected].

 

Financial Abuse: The Elephant in the Room

 

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

Part1 – Financial Abuse, Abuse REALLY?

Financial Abuse: the elephant in the room

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

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

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

Impact

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

How can having a budget be wrong?

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

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

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

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

What now?

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

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

 

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

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

 

 

 

DIVORCE HOLIDAY SURVIVAL GUIDE

 

It takes courage. 

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

It takes patience.

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

It takes faith.

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

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

  1. Allow yourself to grieve:

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

  1. Make time for social activities and exercise:

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

  1. Plan ahead:

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

  1. Put the needs of the children first:

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

  1. Be flexible:

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

  1. Allow for open communication:

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

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

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

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

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

  1. Allow the children to love the other parent:

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

  1. Start a new tradition:

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

 

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

 

SEEKING GRANDPARENT VISITATION? WELL, LIFE JUST GOT EASIER.

 

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

PREVIOUS LEGAL BARRIERS FOR MADE IT HARD FOR GRANDPARENTS

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

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

BUT THINGS HAVE NOW CHANGED

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

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

NEED HELP? — GIVE US A CALL

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

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

 

Ratings and Reviews