October is National Domestic Violence Awareness Month. Domestic violence is a serious issue and, unfortunately, it is not uncommon for domestic violence issues to be present in divorce cases. Whether you are seeking a divorce or not, when you are experiencing domestic violence, the first thing to consider is your safety, which is even more important when you have children. www.Phoenix.gov/law/victims/domestic-violence/resources-and-referrals will provide phone numbers, advocacy center contact information, legal services locally and nationally, along with other resources that may assist you.
In Maricopa County, the issue of domestic violence is very important and often has a tremendous impact on the divorce process. One of the first things you will likely want to consider, after you are able to ensure your safety, is obtaining an Order Of Protection (“OOP”), which last year became effective for two years. Then, assuming you are moving forward with a divorce, you will need to discuss with your attorney what you need to start rebuilding your life safely. If you have children, this will include a parenting plan that ensures the safety of the children as well.
If you do not have children and the divorce process will allow for you to separate and move forward without any need for interactions, then the most important part is to navigate the divorce process in a manner that protects you and eliminates risks. Having an attorney will prevent the need for you to communicate directly with your abuser and allows the attorney to act as a shield against further abuse, which may include using the Court to issue Orders protecting you. Finally, an attorney can help you finalize the divorce in a manner to ensure that everything is complete, thereby eliminating any lasting issues that would force you to further engage with the abuser.
If you have children, an attorney can still provide some of the assistance outlined above, but as the other parent will likely have some parenting time access, special considerations will need to be made to safely facilitate exchanges. In custody cases, the court has to consider the best interest of the children. The best interest factors are outlined in A.R.S. 25-403. As part of that consideration, the court must consider A.R.S. 25-403.03, which directly addresses domestic violence and child abuse. If the court determines that there is domestic violence, the statute expressly provides “The Court shall consider the safety and well-being of the child and of the victim of the acts of domestic violence to be of primary importance” (see A.R.S 25-403.03(B). It is important to note under A.R.S. 25-403.03(D), if a parent shows there has been an act of domestic violence that creates a rebuttal presumption against the parent that committed the act, the abuser is not to be awarded sole or joint legal decision-making; the presumption does not attach if both parents committed acts of domestic violence.
If you are in a relationship with a person who has committed an act of domestic violence, and you wish to seek a divorce, it is important that you provide your attorney - or the court if you are not represented - with the evidence necessary to show acts of domestic violence. The court must weigh this evidence to determine, per statute, whether or not an act of domestic violence occurred; and if it has, the court must consider that evidence in making a determination as to the best interest of the children. This is a very important decision that can have a dynamic impact not only on the divorce process, but on the future co-parenting relationship after the divorce is finalized.
Blog post content by Castle Law, LLC lawyer, Jason Castle
For years, litigants and attorneys alike have struggled with spousal maintenance. The struggle, historically, has been due to the unpredictability of applying A.R.S. §25-319, the statute outlining an award for spousal maintenance.
As a reminder, spousal maintenance is a two-part test. Part one is qualification, part two is determination.
Under Section A, you must show you qualify for an award of spousal maintenance. You can show this by providing evidence substantiating the following:
The requesting spouse…
If the requesting spouse can prove at least one of the above, he or she qualifies for an award.
Only if a spouse qualifies for the above does the Court move on to Section B to determine the amount and duration of the support. Historically, the amount and duration of spousal support awards were inconsistent in both amount and duration. As a result, the Arizona Supreme Court formed a subcommittee to create a spousal maintenance calculator to help create consistency in spousal maintenance claims. The Arizona Supreme Court approved a new calculator this month that is now the presumptive amount and duration for all spousal maintenance claims presented in family law cases.
Since the calculator is so new, it is not fully known what the full impact will be on spousal support claims and the ultimate awards issued by the Court. If you would like to see or use the new spousal maintenance calculator, visit www.superiorcourt.maricopa.gov/app/selfsuffcalc/
Based on our understanding, the range calculated with the spousal maintenance calculator will be the presumptive amount and duration for all future spousal maintenance claims. While this presumption should at least make the awards more consistent, it is still to be determined whether the amount and duration will be more / less fair than the prior system, which allowed judges to assess 13 different factors in determining spousal support.
Blog post content by Castle Law LLC lawyer Jason Castle
When a marriage is no longer working, the couple may choose to dissolve the marriage through divorce. Traditional divorce can be a stressful and emotionally charged process that leads to bitter disputes and costly legal battles. Alternative to a legal-battle approach, seeking mediation and compromise can offer many benefits to the divorce process:
1. Mediation allows the couple to maintain control over the outcome of their divorce. In a court proceeding, a judge will meet the final decisions, which may not be favorable to either party. However, in mediation, the couple can work together to reach a mutually acceptable agreement that meets their unique needs and circumstances.
2. Mediation can save time and money. Court proceedings can drag on for months or even years, resulting in sizeable legal fees and expenses. In contrast, mediation can be completed in a matter of weeks or months, resulting in a significant cost savings. For clarity, there is a cost to the mediation process, but by reaching a quicker resolution and avoiding numerous legal battles, the costs are often significantly less than if the matter were to proceed to trial.
3. Mediation can reduce the emotional toll of divorce. Divorce is a stressful and emotional process, and court proceedings can exacerbate these feelings. Mediation, on the other hand, provides a less confrontational environment that can help reduce stress and anxiety.
4. Mediation can result in a more amicable post-divorce relationship with the other parent/partner. When a couple goes through a bitter and contentious divorce, it can be difficult to move on and maintain a co-parenting relationship. But, when a couple works together through the mediation process, they are more likely to maintain a positive relationship after the divorce is finalized. Positive co-parenting relationships facilitate a more collaborative environment for future child related decisions to be made, focusing on the child's need rather than the parents' animosity.
5. Mediation is a private process. Court proceedings are a matter of public record, which means that personal and financial details become part of the public record. In contrast, mediation is a confidential process that allows the couple to keep their personal matters and finances private.
In conclusion, seeking mediation and compromise to resolve a dissolution of marriage action can offer many benefits. Mediation can help the couple maintain control over the outcome of their divorce, save time and money, reduce the emotional toll, result in a more amicable post-divorce relationship, and provide privacy through the process. Therefore, couples going through a divorce should consider mediation as a viable option for resolving their disputes.
Blog post content by Castle Law LLC lawyer Jason Castle.
Anyone considering a divorce in Arizona should understand the basics of how community property is defined. A.R.S. 25-211(A) provides “All property acquired by either husband or wife during the marriage is the community property of the husband and wife except for property that is (1) acquired by gift, devise, or descent; (2) acquired after service of a petition for dissolution of marriage, legal separation, or annulment if the petition results in a decree of dissolution of marriage, legal separation, or annulment.”
In more straightforward terms, everything you acquired (assets or debts) prior to the day of your marriage is separate property. Anything you acquired from the date of your marriage until the date you or your spouse was served with dissolution papers is community property. And any property you acquired after the date of service is separate property.
Some general examples of community property are as follows:
On the flip side, property you acquired before marriage and after the date of service is considered separate property. For example, if you lease an apartment after service of dissolution, that is your separate debt. Also, if you incur debt after service, that will be your separate debt. Additionally, if you purchased a home prior to the marriage, that will be your separate property.
These general rules may sound fairly clear, but property and debts can get confusing quickly. Exceptions and legal actions can modify the characterization of the property. For example, when you buy a house before the marriage and the couple decides to live in the house for 20 years, the house will be characterized (assuming no other legal actions occurred) to be separate property of the one spouse. However, the non-owning spouse may have a claim against the house for the use of community funds (wages) used to pay for the house (mortgage) over the years. Another area of confusion is retirement accounts, primarily because this is an area in which separate property and community property are likely combined. An experienced attorney can help with more complex areas and issues of community property are normally fact driven.
When you are planning for your divorce, it is very important that you identify all property and make a note of whether it is community or separate. Once you have done that, you should consult with an attorney to verify there are not any other legal issues that may have changed the characterization, or to affirm whether or not you may have a lien on the property as a result of the combination of separate and community funds involved in the property.
Blog post content by Castle Law LLC lawyer Jason Castle.
To sell, or not to sell…your home during a divorce.
If you are divorcing, and you share a home with your ex, there are many things to consider. For example, one party may want to stay in the home and not move or find a new place to live. This can only happen if:
Consider Option #1. Imagine the wife wants to stay in the marital home, but she does not make as much money as husband. If she is getting spousal support from the divorce, it could be added to her income to help (possibly) qualify her for a refinance independently and, therefore, remove husband from the mortgage loan. However, the husband is still entitled to his share of equity in the home, so the wife will still owe him his half of the home equity, just like it would be divided if the parties sold the property.
In this scenario, if the husband owes wife significant money for her portion of other community assets (retirement account, savings, etc.), he could use it to offset his equity in the home. To detail this example, if the wife is awarded $200,000 from husband's 401k and savings accounts, and the equity in the home just happens to be $400,00, Husband's portion of the equity in the home would be $200,000 – making the home equity exchange a wash (where neither party must pay the other out-of-pocket). But, if there aren't any other assets, how is the wife going to come up with $200,000 to buy out her soon-to-be-ex-husband’s equity, without selling the home??
Now Consider Option 2. Let’s say the wife does not qualify to refinance and take over the mortgage on her own, so the husband agrees to stay on the mortgage so she and the kids don't have to move. This leaves the husband jeopardizing his own ability to find a new residence. With his name still on the mortgage, he may not qualify to purchase another home. If his debt-to-income ratio is not capable of getting him approved for two large mortgages, it does not make sense for him to remain tied to the mortgage on the marital home.
These scenarios illustrate why, sometimes, the only workable option during a divorce is to sell the home. If you are in a situation like those described above, it’s never a bad idea to consult an experienced divorce lawyer, real estate agent, and/or financial planner to help you make decisions for your unique situation.
**Blog post content by J Castle Law attorney Kelly Kehm
Divorce is scary for everyone, whether you are the one filing for divorce or the one being told you are getting divorced. After you get over the initial impact of the decision or news you need to start taking action, which is a separate blog you should review (https://www.jcastlelaw.com/blog/archives/10- 2020).
Here are seven things you need to do immediately before filing for divorce to help protect yourself going forward:
1. Joint and Separate Bank Accounts: First, you should verify the funds in your joint and separate account(s). Not everyone will have a separate account; but, if you do, make sure you know what you have in the account. It is also important for you to know that even with it being a separate account, it is most likely still community funds in the account. If you do not have a separate account, I would open a new account and take one-half of the funds in the joint account to ensure you have some money available to you going forward.
Two notes to consider:
(1) Taking the funds will cause some drama and distrust, but it’s preferrable to have some distrust and be able to pay expenses than to be broke and unable to provide for yourself, or you and the children, while maintaining trust;
(2) These funds should be spent first to pay your expenses.
2. New Bank Account: You need to have a new, separate bank account opened. In Arizona, the ‘community’ terminates upon service of the Petition for Dissolution of Marriage. Therefore, you should wait until the date of service to put any money in the account. This is not the same account in the previous point, as those funds are community property, and your spouse is entitled to half the funds. This account will be for any money you earn after the date of service, as those funds are your separate funds, meaning your spouse is not entitled to these funds.
3. Direct Deposit: If you are employed, you need to contact your HR Department and have your direct deposit rerouted to the new, separate bank account you just created. Again, after service, your earnings are now separate property, and you need to keep these funds separate from any community funds to avoid comingling.
4. Credit Cards: If you do not have any credit cards, you need to apply and get a new credit card that only you can use. The divorce process is long, and you will want to have emergency access to money, as there are numerous expenses, like legal fees, that you likely have not anticipated. Hopefully you will never need to use the credit card, but it is far easier to get approved for a credit card before the divorce than it will be six months down the road, when you have only your income to qualify.
5. Retirement and Benefits: Prior to the divorce being filed, you can make changes to your beneficiaries. You should contact your HR Department and financial institution to change the beneficiary on your retirement accounts and any life insurance policy. Once the divorce is filed, the preliminary injunctions apply, which prevent you from making any changes until the divorce is finalized. In the unlikely event that you were to pass prior to the divorce (or after the divorce, but before you can make the changes), it is unlikely you want your retirement benefits or life insurance proceeds to be distributed to your ex-spouse.
6. Credit Report: I highly encourage my clients to run their credit report and verify any-and-all open accounts. If you have an account that is open, but not used, close the account immediately. If you have accounts that you were not aware of, investigate them, as it may be important to share them with your attorney. Finally, this information will also give you some insight into future decisions you will need to make, like refinancing a home, buying a home, or even applying for a rental.
7. Budget: Create a new budget based solely on your income and the expenses that you will have going forward. Knowing your budget will help you and your attorney plan for the early stages of the dissolution process. For example, you may not have the funds to move out of the marital residence, or you may be unable to qualify for a lease on a new apartment. Similarly, you may have to make alternative decisions regarding childcare or school tuition. Having a budget allows you to make informed decisions that you can actually fulfill, rather than putting yourself in a worse financial position.
Divorce is like a bomb exploding right in the middle of your life - it has rippling effects that will impact almost every area of your life. These 7 money suggestions will help you start to gain control and rebuild your life. There are many other decisions that you will need to make during the divorce process, and having an experienced attorney to advise you can be invaluable and can have long term, positive impact on the opportunities you will have once the divorce is over and you have started your new life.
We are here to help you with your family law matters!
Contact us at https://www.jcastlelaw.com/contact.html, or at firstname.lastname@example.org.
**Blog Posts Written by Castle Law Attorneys: Jason Castle, Kelly Kehm
In Arizona, a “high net worth” divorce is defined as a divorce that has financial assets over $1,000,0000. However, it is important to understand the $I million asset threshold alone does not necessarily mean it is complex. For example: Is a $1 million dollar investment that needs to be divided simply high asset…or complex? It depends. If that asset was accumulated during the course of a marriage, its division is likely straight-forward. However, if that same investment account is a combination of pre-marriage contributions and contributions during the marriage, the tracing of the funds to separate the individual contributions versus the community contributions can make that asset division complex. Similarly, if the funds are held in a trust, that complication can also make the division more complex. Finally, if the investment account poses serious potential tax implications requiring the expertise of a CPA or tax attorney, the situation has escalated from high-asset to complex.
High net worth cases may be the result of one party having received the majority of the funds from a trust or inheritance, which at first glance seems not complex. However, depending on how the funds were received and what were done with the funds (e.g. commingling or transmuting of funds), this type of matter may be highly complex and need serious investigation by potential use of experts to protect the assets. Such issues are often highly contested and lead to significant litigation that needs to be fully supported through discovery and proactive advocacy.
Business interests are another area that can create a high asset divorce, but they do not always mean complexity. Businesses do more often lead to complex litigation, but there are exceptions normally with smaller businesses. Some businesses are not very valuable and are easy for the parties to divide. Similarly, some businesses were started well before the marriage and therefore the community may only have limited claims to the interest in the business that may or may not lead to litigation. However, this is an area that is fraught with landmines that can completely change the course of the property division in a divorce. Just a couple of examples would include fair compensation. In Arizona, when a party owns the business as separate property, the non-owning spouse may have a claim based on not being fairly compensated for his or her labors during the marriage. Another issue occurs when the business has grown in value; expertise is required to ascertain whether the growth is attributed to the business naturally growing or the results of the owning spouse. In the event there are any disputes in the business value, the parties will most likely need to retain a business valuator to review the financials and investigate the history to determine a range of values. Business valuations have a number of subjective considerations that a skilled attorney can address that may have a tremendous impact on the community value, and ultimately, the amount a party has to pay to keep his or her business separate.
High income earning parties can also lead to high net worth cases. This may not be very complex if both parties are equally high earning, but if one spouse is earning significantly more than the other spouse, that leads to a number of issues related to child support and spousal maintenance which may fall into the complex category. It is important for a party, in this type of situation, to have an experienced and skilled attorney willing and able to advocate for the appropriate application of income to be used in arguing these type of situations. We recently saw a great example of this when Kim Kardashian was awarded $200,000 a month in child support in California. Now, given the amount of money that is being earned in that matter, $200,000 may be appropriate, but in Arizona this award would be hard to justify, and would require a skilled attorney to fight for a reasonable amount that meets the children’s needs without what our state views as ‘punishing’ the high earning parent.
It is my opinion that everyone seeking a divorce should consult with an attorney to at least understand his or her rights and the strengths and weaknesses of their respective position. Moreover, when you start dealing with more complex issues or division of higher valued assets or debts, it is even more important to seek the advice of a skilled divorce attorney and other relevant experts that can help protect assets and avoid costly and unfair liabilities as you move forward into the next chapter of your life.
With the end of the year coming soon, it is normal to consider taxes. One question I often get is whether or not spousal maintenance is tax deductible. The answer now is no.
If this sounds incorrect to you, that's because there were recent changes to the tax law. If you had a spousal maintenance award issued prior to January 1, 2019 your spousal maintenance payments are tax deductible to the payer and included as income to the receiving spouse. The 2017 Tax Cuts and Job Act eliminated the ability to deduct spousal maintenance payments and the tax applied to spousal maintenance payments received for any spousal maintenance award post January 1, 2019.
If you had a spousal maintenance order prior to December 31. 2018, and you modified the award after January 1. 2019, the tax treatment will remain deductible unless expressly included in the new agreement/order that the parties will no longer be able to claim the deduction.
Similarly, I often get asked whether child support is taxed or tax deductible. The answer to this is also no. The child support payments are neither taxed to the receiving parent nor tax deductible to the parent paying support. Child support is considered “tax neutral”. Essentially, the IRS treats child support as a direct expense paid for the child that should not be taxed in a manner divergent from how married parents are able to fund child expenses without tax penalty.
Know what divorce is filled with? Bad news. For all that divorcing people gain, like new relationships, peace of mind, emotional health, and new beginnings, divorces are still filled to the brim with loss. Divorced adults lose money. Homes. Friends. Family members. Their sense of self. Confidence. Stability. I could go on and on. Having worked with divorcing people for nearly 20 years, I can tell you that most people go on to live better, more fulfilling lives that bring them joy…but that exciting future doesn’t change the difficulty of living through the divorce.
But here’s the good news! Divorce often comes with wonderful tax breaks for people…and this is the time of year to reap those benefits. About time, right?!?!? Exactly. In July of 2021, Kiplinger put together a wonderful article designed to make people aware of the most overlooked tax breaks for newly-divorced people. Keep in mind, these are not ALL of the advantages…just the most overlooked. To make sure that you reap every tax benefit available to you, please do work with your tax preparer, accountant, and financial planner.
The tax breaks identified by Kiplinger include:
Co-parenting both during and after divorce can be tough stuff. But in divorces that do not have significant domestic violence and abuse, substance abuse, or dangerous mental illnesses, co-parenting is the way divorced parents operate. It may get easier to manage over time, but there are always times that present more challenges and conflict than others, and school breaks are definitely one of those times. Ultimately, the divorce changes when and how you can spend time with your children, often greatly reducing that time, and that enormous life change is difficult for loving, involved parents. To help process this, take a moment to read Co-parenting and Joint Custody Tips for Divorced Parents from Help Guide.
A good divorce decree should clearly spell out how holidays and breaks are supposed to work, but before that decree is in place, those details need to be worked through by the parents (often with assistance from their lawyers). Even when you have a good decree, life can happen that presents challenges to plans, and co-parents need to pivot. Since this is the month of spring break, I thought I’d share this great spring break survival guide from Parently. And since we’re still contending with COVID, here are some great spring break ideas that can be done at home or some creative outdoor activities kids might enjoy in Phoenix. These are also wonderful, local options for parents whose plans include ‘splitting’ the break.
Is co-parenting tough? You bet. Is your ex still a selfish idiot who relishes making your life difficult? Possibly. Ultimately, however, it offers health and stability to your kids during what, for them, has been an overwhelming change in their young lives. Kudos to you for keeping that thought front-and-center as you continue to try and work cooperatively with the other parent.
Jason Castle is a family lawyer who specializes in high-conflict cases. He's also a former prosecutor & social worker. Hear his latest divorce thoughts!