PREMARITAL AGREEMENTS ARE A WISE MOVE

Premarital Agreement Basics

In the past ten years or so, there has been a significant rise in couples exploring the option of entering into premarital agreements. Many soon-to-be-married couples often avoid the topic of premarital agreements as they feel it could be detrimental to their relationship. This makes sense, since you’re essentially negotiating what would happen in the event of divorce. However, in many circumstances, it can be a really smart thing to do both financially and emotionally. Experts agree that a premarital agreement can be a very wise decision, not only because it outlines a couple’s finances, but because it can prevent a costly and contentious divorce proceeding if the marriage doesn’t work out in the future. So, in that sense, it can actually take the pressure off a newly married couple.

Here are the basics when it comes to a premarital agreement:

What is a premarital agreement?

A premarital agreement (also commonly called a prenuptial agreement or a “prenup”), by definition, is a written contract in which an engaged couple states their rights and responsibilities regarding premarital and post-marital assets and debts, including what would happen should their marriage end in divorce or death.

How much does a Premarital Agreement cost?

The cost of a premarital agreement greatly depends on the complexity of the issues and the amount of assets and debts to be protected, but it is far less expensive than the cost of a contested divorce litigation.

Who Needs a Premarital Agreement?

Of course, anyone can get a premarital agreement if they would like. However, there are certain circumstances in which it would be recommended. These circumstances include when one or both parties have children; when one or both parties have been previously married and divorced; when one or both parties own a home; when one or both parties own a business; or when there is a significant difference in wealth and/or debt between parties. People in these circumstances often have a greater interest in protecting their rights (particularly their financial rights) than those who are not in these situations.

 How do I get a Premarital Agreement? What does the process look like?

Typically, one party, usually the higher earning party, will retain an attorney to create a draft of the agreement. After that draft is completed, the other spouse will have their own attorney look it over, negotiate terms, and make suggestions for possible changes and edits. Once both parties and their attorneys have approved the final draft, the contract must be signed and executed.

Depending on the complexity, a premarital agreement can take anywhere from a few months to a few days, but it certainly is not the best idea to wait until right before the wedding to begin consulting with attorneys.

Do you have to have separate lawyers?

It is advisable for both parties to have their own attorneys. Having separate lawyers ensures that both parties’ interests are represented fairly. It will also make it more difficult for a party to challenge the provisions in the future.

One lawyer cannot, or at least should not, represent both parties as there would be a conflict of interest. Additionally, while it is not required that both parties consult with an attorney, we recommend it, because if one party has an attorney and the other does not, the party without an attorney will be at a significant disadvantage.

 Can you set the terms for child support and custody in a Premarital Agreement?

In Arizona, you cannot set the terms for child support or custody in a Premarital Agreement due to public policy concerns. The Family Court has the ongoing right to set or change the terms of legal decision-making authority, parenting time, and/or child support at any time, now or in the future. If the parties divorce, the courts will deal with those issues at that time. But keep in mind that while a parenting plan is not enforceable without a judge’s approval and signature, a Premarital Agreement is enforceable as a binding contract as soon as it is signed by the parties.

A Final Thought

Today many people are marrying later in life, after they are already established in their careers and have accumulated significant assets, and sometimes after they have been previously married and divorced. Blended families, in which each spouse has their own children from a prior relationship, are common. As a result, the need to protect assets is greater now than ever before. This makes entering into a premarital agreement a wise move.

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.

HOW TO PREPARE CHILDREN FOR A DIVORCE

Each year, over 1 million American children are affected by their parents’ divorce. How each child reacts depends on many factors, including their age, personality, and of course, the circumstances surrounding the divorce or separation. Many times, the initial reaction of children is one of shock, sadness, frustration, anger, or worry. However, with enough planning, you can handle your divorce in a way that doesn’t have to feel like your kids’ world is crashing down on them. If dealt with appropriately, many kids can come out of divorce mentally stronger and better able to cope with stress.

Here are some tips to prepare your children for divorce and ease the transition:

Preparing to Deliver the News

When figuring out how to deliver the news to your children, make sure that you and your spouse are on the same page about how you will tell them what’s happening. It would be a good idea for you and your spouse to do some sort of “dress rehearsal” to prepare exactly what you are going to say ahead of time. Even if you feel like you can barely be in the same room as your spouse, it’s important to at least present a united front to prevent your kids from feeling like they are being pulled into taking sides. Children do significantly better with the news of divorce when their parents are positive and aligned.

Breaking the News

              Make sure that when you deliver the news to your children, you are doing it at a time when stress is low and nobody has plans for at least a few hours, that way they have a little bit of time to work through their initial reaction. Making this announcement and then sending the kids to school, for example, might make it very difficult for them to focus.

Additionally, this conversation should ideally take place in a quiet, safe space—perhaps their backyard, living room, or any other space that is comfortable and free of distractions. If your children have electronic devices with them, make a rule for everyone to put their devices away during the conversation.

What specific words and phrases you decide to use during the conversation will, of course, depend on the child’s age, maturity, and temperament. However, the discussion should always include this message: what happened is between mother and father and is in no way the child’s fault. The reason for this is that many children will feel that they’re to blame even after parents have said that they are not, so it’s important to keep reiterating this message. Make sure that your child knows that your decision is strictly about adults needing to be apart due to differences.

While you are obviously going to need to discuss what will be changing in your children’s lives and daily routine, it is equally as important to focus on what will stay the same. Divorce can be extremely destabilizing, so telling your children what will not change may provide them with some comfort.

Handling their Reactions

Every child will react to this news in their own way. Some children react very strongly initially and then slowly begin to adjust and accept it, while others seemingly take the news in stride and then exhibit signs of distress days, weeks, or even months later. Either way, these are normal reactions—they are grieving the loss of a family. Remind them that it’s perfectly okay to feel however they are feeling and that you are there to help them through the transition. And if you aren’t sure how your child is feeling about the divorce, just ask them.

As children continue to react, they will likely have many questions, including where they will live, where each parent will live, where they will go to school, if they’ll still get to see their friends, etc. Be as honest as you can, even when it isn’t easy. If you don’t have an answer to something, tell your child that you will let them know as soon as you figure it out.

Helping Kids Cope and Adjust to their New Normal

As time goes on, children will begin to adjust to their new life with divorced parents. This can be difficult at first, however, there are a few things you can do to help them better adjust:

  • Stay consistent. Whenever possible, minimize unpredictable schedules, transitions, or changes. Consistency and routine can go a long way toward providing comfort and familiarity for children. Don’t try to make your children feel better by relaxing limits, letting them act out, or buying them things. This can backfire, possibly making your children more insecure and less likely to recognize your parental authority later.
  • Encourage communication. Tell your child that it’s okay to talk about their feelings and ask questions, but don’t push them. Let your child vocalize how they are feeling if they want to. If your child doesn’t want to talk about the divorce, don’t try to engage in a conversation about it—they may not be ready yet. Let them know that you are available if and when they are ready to talk about it. Do your best to co-parent with your soon-to-be “ex.” Parents need to communicate and consult each other on major decisions, so that the children know that their parents are on the same page. Let them know that both of their parents love them and are looking out for their best interests.
  • Have a therapist on call. Before you even announce your split to your kids, it might be a good idea to line up a therapist. Providing children with a neutral place to express their feelings can help them process some of the big emotions they’re going through. It’s good to have your child start with a therapist before they start showing signs of behavioral changes.
  • Don’t fight in front of the children. Studies have shown that post-divorce conflict in front of the children can lead to mental health issues down the line. Openly arguing in front of the kids can make them feel like they are stuck in the middle—something that no child should ever feel. Additionally, this conflict can set a really bad example for them, especially when they are still learning how to form their own relationships. Whether you and your ex decide to go to mediation, therapy, or just argue outside of the children’s earshot, do whatever you have to do to keep the kids out of it.
  • Don’t talk poorly about one another. This can be a tough one but try your best not to lay blame on your partner to your children, even if there has been serious hostility or infidelity. This will just lead to your children feeling like they have to pick a side, which, again, is something that no child should ever feel. If you can, make a pact with your ex to not ever talk poorly about each other in front of the child.

Ultimately, changes of any kind are hard for kids. Stay patient, stay consistent, and know that you and your children will get through

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.

Conflict in Front of the Kids: Why Not to Do It and How to Avoid It

We recently posted an article on our social media about Parental Alienation and its harmful effect on children. But recent child development research shows that even experiencing lower levels of parental conflict can lead to mental health problems for children who are caught in the middle.

The findings of a new Arizona State University research study, titled “Longitudinal Effects of Post-Divorce Interparental Conflict on Children’s Mental Health Problems Through Fear of Abandonment” were published just last week in the Child Development journal. The study, as the title suggests, focused on the lasting effects that post-divorce parental conflicts have on their children’s mental health.

From 2012 to 2015, the researchers surveyed families participating in the ASU New Beginnings Program, asking 559 children (aged 9-18) about their exposure to conflict. The questions included topics like whether after their parents’ divorce their parents fought in front of them, spoke poorly about one another, asked them to carry messages to one another, etc. The study ultimately found that children exposed to parental conflict were more likely to report worrying about being abandoned by one or both parents. Furthermore, children who reported higher fear of abandonment were also more likely to report additional mental health problems 11 months later.

Before conducting this study, researchers hypothesized that kids who had strong relationships with one or both of their parents would experience less fear of abandonment and fewer mental health problems, since strong parent-child relationships generally create a stress buffer for children. However, they did not find a general buffering effect of parenting in this situation.

Karey O’Hara, a research assistant professor of psychology at ASU and the first author on the paper, stated “This was the most surprising finding for us. Good parenting is a very strong and powerful protective factor for all children, especially after a separation or divorce. But based on prior research, we know that the effect of good parenting is complicated in separated/divorced families.” She then added that although good parenting is protective, it may not be enough to cancel out the negative effects of conflict.

Parents can do something about it, though. In her research paper, O’Hara urges parents not to argue or fight in front of the children. She suggests that parents be extra careful when they’re around the other parent if there is a chance for conflict, and that parents make a conscious effort not to say things that might make their children feel like they are caught in the middle and have to pick sides. In other words, she suggests no badmouthing the other parent or asking the child to spy or act as a messenger.

It is also important, particularly given the findings of the study, “for parents to make sure that their children know that although they are separated or divorced, they will continue to care for them,” in order to allay any fears of abandonment that the child might have.

Going through a separation, a divorce, or a contested custody case can certainly be difficult for children that are experiencing it. If you are a parent who is going through, or has gone through, a divorce or separation, take Karey O’Hara’s advice and try to avoid conflict with your ex and putting your children in the middle as much as possible. And if you don’t feel like you can control and mitigate conflict on your own, there is no shame in seeking help—ultimately it will make you a better parent and your children happier and healthier.

By: Logan Matura

 

At the Law Firm of Gary J. Frank P.C., our Arizona Family Law Attorneys Gary Frank, Hanna Amar, and Logan Matura are strong litigators and compassionate counselors. Gary Frank is a Phoenix Family Law Attorney with over 30 years of experience as a litigator and mediator. He has also acted in the capacity of a Judge Pro Tempore in the Maricopa County Superior Court, and served on the Governor’s Child Abuse Prevention Task Force. Law firm Partner, Hanna Amar is a highly-skilled Arizona Family Law Attorney with a passion for Family Law and children’s issues. She has extensive courtroom experience, and is also a certified mediator. Hanna has also acted as the President of the Young Lawyer’s Division of the Maricopa County Bar Association. Associate Attorney Logan Matura is an Arizona Family Law Attorney who received her Juris Doctor degree from New York Law School in Manhattan, NY. While in law school, she served as an intern for a Family Court judge in the Bronx, NY, and was a member of the Family Attorneys Mobilizing club. Our firm handles Family Law cases in the areas of divorce, custody (now called “Legal Decision-Making and Parenting Time), relocation (move-away), division of property, spousal and child support, modification actions, enforcement actions, grandparent and step-parent and non-parent rights, as well as other matters pertaining to families and children. If you are in need of a consultation, call us today at 602-383-3610; or you can contact us by email through our website at www.garyfranklaw.com.   We look forward to hearing from you.

 

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

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

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

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

 

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

 

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

 

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

 

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

 

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

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

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

By Logan Matura

 

At the Law Firm of Gary J. Frank P.C., our Arizona Family Law Attorneys Gary Frank, Hanna Amar, and Logan Matura are strong litigators and compassionate counselors. Gary Frank is a Phoenix Family Law Attorney with over 30 years of experience as a litigator and mediator. He has also acted in the capacity of a Judge Pro Tempore in the Maricopa County Superior Court, and served on the Governor’s Child Abuse Prevention Task Force. Law firm Partner, Hanna Amar is a highly-skilled Arizona Family Law Attorney with a passion for Family Law and children’s issues. She has extensive courtroom experience, and is also a certified mediator. Hanna has also acted as the President of the Young Lawyer’s Division of the Maricopa County Bar Association. Associate Attorney Logan Matura is an Arizona Family Law Attorney who received her Juris Doctor degree from New York Law School in Manhattan, NY. While in law school, she served as an intern for a Family Court judge in the Bronx, NY, and was a member of the Family Attorneys Mobilizing club. Our firm handles Family Law cases in the areas of divorce, custody (now called “Legal Decision-Making and Parenting Time), relocation (move-away), division of property, spousal and child support, modification actions, enforcement actions, grandparent and step-parent and non-parent rights, as well as other matters pertaining to families and children. If you are in need of a consultation, call us today at 602-383-3610; or you can contact us by email through our website at www.garyfranklaw.com.   We look forward to hearing from you.

 

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

This article was originally published in “The Street”

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

 

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

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

Common Myths about Divorce and Social Security Claiming

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

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

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

Basic Facts about Divorce and Social Security

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

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

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

For example

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

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

Claiming on an Ex-Spouse’s Record

In general, there are five rules:

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

        OR

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

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

As a divorced spouse, your 

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

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

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

Remarrying after Divorce

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

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

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

For example:

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

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

Filing

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

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

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

The Big Takeaways

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

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

 

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

[email protected]

ARIZONA’S PRESUMPTION OF EQUAL PARENTING TIME HURTS CHILDREN

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

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

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

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

On its face, the changes made might seem positive. It is absolutely true that children are more successful when both of their parents are loving, active, and involved. When a divorce or breakup occurs, the courts should work to make sure that loving, active, and involved parents share in decision-making, and that the children get to spend plenty of time with both of them. However, not all parents are loving, active, and involved, and unfortunately that is something the changes in the statutes failed to sufficiently address.

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

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

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

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

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

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

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

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

By Gary Frank & Logan Matura

 

At the Law Firm of Gary J. Frank P.C., Gary Frank, Hanna Amar, and Logan Matura are strong litigators and compassionate counselors. Gary Frank is a Family Law Attorney with over 30 years of experience as a litigator and mediator. He has also acted in the capacity of a Judge Pro Tempore in the Maricopa County Superior Court, and served on the Governor’s Child Abuse Prevention Task Force. Law firm Partner, Hanna Amar is a highly-skilled attorney with a passion for Family Law and children’s issues. She has extensive courtroom experience, and is also a certified mediator. Hanna has also acted as the President of the Young Lawyer’s Division of the Maricopa County Bar Association. Associate Attorney Logan Matura received her Juris Doctor degree from New York Law School in Manhattan, NY. While in law school, she served as an intern for a Family Court judge in the Bronx, NY, and was a member of the Family Attorneys Mobilizing club. Our firm handles Family Law cases in the areas of divorce, custody (now called “Legal Decision-Making and Parenting Time), relocation (move-away), division of property, spousal and child support, modification actions, enforcement actions, grandparent and step-parent and non-parent rights, as well as other matters pertaining to families and children. If you are in need of a consultation, call us today at 602-383-3610; or you can contact us by email through our website at www.garyfranklaw.com.   We look forward to hearing from you.

A PRESUMPTION OF EQUAL PARENTING TIME HURTS CHILDREN

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

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

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

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

On its face, the changes made might seem positive. It is absolutely true that children are more successful when both of their parents are loving, active, and involved. When a divorce or breakup occurs, the courts should work to make sure that loving, active, and involved parents share in decision-making, and that the children get to spend plenty of time with both of them. However, not all parents are loving, active, and involved, and unfortunately that is something the changes in the statutes failed to sufficiently address.

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

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

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

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

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

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

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

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

By Gary Frank & Logan Matura

 

At the Law Firm of Gary J. Frank P.C., Gary Frank, Hanna Amar, and Logan Matura are strong litigators and compassionate counselors. Gary Frank is a Family Law Attorney with over 30 years of experience as a litigator and mediator. He has also acted in the capacity of a Judge Pro Tempore in the Maricopa County Superior Court, and served on the Governor’s Child Abuse Prevention Task Force. Law firm Partner, Hanna Amar is a highly-skilled attorney with a passion for Family Law and children’s issues. She has extensive courtroom experience, and is also a certified mediator. Hanna has also acted as the President of the Young Lawyer’s Division of the Maricopa County Bar Association. Associate Attorney Logan Matura received her Juris Doctor degree from New York Law School in Manhattan, NY. While in law school, she served as an intern for a Family Court judge in the Bronx, NY, and was a member of the Family Attorneys Mobilizing club. Our firm handles Family Law cases in the areas of divorce, custody (now called “Legal Decision-Making and Parenting Time), relocation (move-away), division of property, spousal and child support, modification actions, enforcement actions, grandparent and step-parent and non-parent rights, as well as other matters pertaining to families and children. If you are in need of a consultation, call us today at 602-383-3610; or you can contact us by email through our website at www.garyfranklaw.com.   We look forward to hearing from you.

 

HOW TO SURVIVE THE HOLIDAY SEASON IN THE MIDST OF DIVORCE

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

Give Yourself Room to Grieve

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

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

Focus on Doing What’s Good for You

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

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

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

Surround Yourself with Support

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

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

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

Identify Your Triggers

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

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

 Make New Traditions for Yourself

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

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

Look for the Lesson Hold on to Hope

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

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

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

By Logan Matura

 

 

At the Law Firm of Gary J. Frank P.C., Gary Frank, Hanna Amar, and Logan Matura are strong litigators and compassionate counselors. Gary Frank is a Family Law Attorney with over 30 years of experience as a litigator and mediator. He has also acted in the capacity of a Judge Pro Tempore in the Maricopa County Superior Court, and served on the Governor’s Child Abuse Prevention Task Force. Law firm Partner, Hanna Amar ,is a highly-skilled attorney with a passion for Family Law and children’s issues. She has extensive courtroom experience, and is also a certified mediator. Hanna has also acted as the President of the Young Lawyer’s Division of the Maricopa County Bar Association. Associate Attorney Logan Matura received her Juris Doctor degree from New York Law School in Manhatten, NY. While in law school, she served as an intern for a Family Court judge in the Bronx, NY, and was a member of the Family Attorneys Mobilizing club. Our firm handles Family Law cases in the areas of divorce, custody (now called “Legal Decision-Making and Parenting Time), relocation (move-away), division of property, spousal and child support, modification actions, enforcement actions, grandparent and step-parent and non-parent rights, as well as other matters pertaining to families and children. If you are in need of a consultation, call us today at 602-383-3610; or you can contact us by email through our website at www.garyfranklaw.com.   We look forward to hearing from you.

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.

 

NEW AZ SUPREME COURT CASE RESTORES FAIRNESS TO FAMILY LAW

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

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

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

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

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

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

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

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

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

 

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

 

 

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