There have been many articles published in the past few months that ilIustrate the toll that COVID has taken on families. I recently read an article in U.S. News titled "A Vaccine or This Marriage: Conspiracy Theories Are Tearing Couples Apart" by Jesselyn Cook. In it, one of the interviewed parties reported that her husband said, “If I take the vaccine I could pack my bags and leave his kids here.”
As a divorce attorney I have not heard this exact scenario, but it also did not surprise me. The COVID pandemic, and all that has come with, has caused a tremendous amount of stress in families, and many Americans are polarized about the vaccine. A marriage with a highly opinionated spouse that is convicted to a belief very easily could put a partner in a position whereby they have to choose whether or not they are equally convicted. This tension very well may lead to one spouse filing for divorce.
Over the years, I have seen the issue of whether or not to have a child vaccinated lead to litigation. In a divorced family in which the parents share joint legal decision-making authority, if the parents are not in agreement on whether or not to have the child vaccinated and both parents are strongly entrenched in their respective position, it is left the court to make that decision. The truth is that judges have different opinions on the necessity to vaccinate or not, and in Arizona, there is no standard, consistent response required by the court. One thing that is consistent is that disagreements like this often lead to high litigation costs that may or may not be seen as reasonable by the court.
In a situation whereby one parent has sole legal decision-making authority, the court will decline to override that parent's choice, as there is a strong argument that making the decision infringes on that parent’s Constitutional right to parent. I only add this to highlight the fact that there is a very fine line between government intrusion into the parenting rights and the court having the right to make decisions regarding what is best for the child.
If you have a story that you are willing to share, I would love to hear how this pandemic has affected you and or your family.
I recently read a HuffPost article about Brad Pitt and Angelina Jolie that shared Mr. Pitt finally (after 5 years) obtained ‘joint physical and legal custody’ in California. You read that correctly: FIVE YEARS. If you haven’t been following, Mr. Pitt and Ms. Jolie were divorced in 2016 and have 6 kids together. During the original divorce, Mr. Pitt’s alleged acts of domestic violence and substance abuse problems led to him being denied joint legal decision making and custody. Upon this new, recent ruling, Ms. Jolie has stated she will appeal on the grounds that the judge improperly excluded her evidence relevant to the children’s health, safety, and welfare. Reading this quick article made me think of a few points to consider for families in similar situations:
It is never over.
1. Despite any divorce being ‘final’, the fight can continue for years. These post-decree battles normally (but not always) involve children.
2. In Arizona, any time there is a change in circumstances that affects the children’s best interest, a modification can be made by the court regarding legal decision-making, parenting time, and/or child support.
3. When a trial court issues a decision, the parties are able to continue litigating either by motioning for a new trial or seeking an appeal. Also, although rarely done, a party can petition the Arizona Supreme Court to hear the case after an appeal.
Domestic Violence & Substance Abuse
1. These are two very significant issues that can have a major impact on the court’s decisions affecting the health and welfare of children...but don’t assume they automatically will. These issues are something that need to be introduced, evidenced, and fought for in court.
2. It’s shocking for clients, but you cannot assume that judges will understand the complexities of either of these issues or the impact they have on a child’s health and wellness. When these issues are relevant to your case, it is important to get experts involved to help educate the court about the specific facts and evidence in your case and the impact they have on the children.
3. The court’s handling of substance abuse in family law cases varies widely. Some judges strictly order random testing and treatment. A number of courts/judges, however, will essentially dismiss the substance abuse issue if the addicted party does something to seek treatment...even if it’s not completed. There is no standard practice. Few judges understand addiction and therefore misunderstand treatment methods and/or the necessity for ongoing monitoring to ensure the children’s safety.
4, Similarly shocking, regarding cases with domestic violence, the court often lacks understanding of current research of it, and there is no standard practice. Judges can be focused exclusively on the physical evidence (broken bones and blood) and not give proper weight, in my opinion, to the psychological, emotional, and financial trauma that occurs with controlling and coercive control. Again, it is important to bring in an expert to help educate the judge about your case and the need to protect the health and well-being of the children.
The complex issues of substance abuse and domestic violence, as found in the Mr. Pitt and Ms. Jollie case, can drag a case out for years. This is because they require the court to be involved over time as one or both parents receive the treatment and services they need to address the substance or domestic violence issues in the case. Ultimately, the goal of the courts is to restructure the balance of power to ensure everyone is safe.
I came across this excellent article in The Balance that provides an overview of various options for filing taxes depending on whether your divorce was legally finalized or is still in progress. As part of this overview, the article provides information about the IRS tie-breaker rules for determining which parent gets to claim a child as a dependent.
One thing that the article did not touch on, that I believe is essential, is how child support impacts parents’ qualifications to claim a child as a deduction on their taxes. This impacts many of my clients. As always, in Arizona, parties should, first and foremost, review their specific court orders for clarification on this matter for their particular case, and if you have any questions, consult with your attorney. Also, it is prudent to consult an accountant or tax advisor regarding your specific situation, as family law attorneys do not provide any tax advice.
The Arizona Child Support Guidelines, Section 27, provides that a parent who is not current with his or her child support payments by December 31st may be precluded from claiming a child as a dependent. As with all cases, it is important to check your specific court orders for decisions in your personal case. Additionally, the court can deny both current and future ability to claim a child as a dependent when there is a history of nonpayment of support obligations. Finally, a parent may need to obtain IRS Form 8332 to file with the tax return.
I recently ran across an article whereby the San Antonio Zoo was having a promotion for Valentine's Day, Cry Me A Cockroach. For $5, participants are able to name a cockroach after an ex to be fed to zoo animals. If your ex was a real piece of work deserving of extra attention, you can pay $20 to name a rat that is fed to bigger zoo animals.
As a human who has been accused, on more than one occasion, of having a dark sense of humor, I could immediately see why many of my clients would appreciate this opportunity. However, my attorney brain quickly kicked in, and I began thinking of how participation in such a Valentine’s celebration could easily be used against a party in court.
My own practice deals with a lot of high-conflict custody disputes. In many of my cases, one party is asserting that the other parent is not co-parenting and/or alienating. While on the surface, this may seem like small, harmless, fun, it could easily be evidence of animosity and the hatred in family law court.
I know...total buzzkill, right? If you’re committed to this idea because it provides any psychological relief, do so cautiously. It would be foolish to use actual names here; to be safe, I would encourage use of nicknames for all parties. Also, I would not share this with a single soul. Not verbally, and certainly not through social media or pictures. For anyone struggling with ongoing rage, I would encourage therapy. Anger and hate are very human emotions, especially during and after a significant loss, but you deserve to move past it into your next chapter! Working with a skilled counselor can help ensure that you have appropriately coped with a relationship ending and are able to move forward in a positive direction.
Happy Valentine’s Day!
With the tax season upon us, I thought a little tax information would be helpful. It is important to know that the rules of the tax game are different for the divorcing and divorced. Nerdwallet’s article 7 Tips for Preparing your Taxes in a Divorce and Kiplinger’s article Most Overlooked Tax Breaks for the Newly Divorced provide some good overall information to consider. In summary, the articles address critical issues like:
Filing Status: The decision to file singly or jointly can have tremendous tax implications
Statements: Gather your account statements (you should be doing as part of your divorce already)
Getting Help: If you need it, hire an accountant or a tax specialist
Support: Understand how child support and alimony will impact your tax situation (for example, in Arizona, alimony is not taxed to the recipient nor deductible to the payor)
House Planning: Tax implications can impact your timeline for selling and/or divorcing
Child Effects: Head of Household, Child Tax Credit, medical expenses, and others will impact taxes.
Property Division: Remember, these decisions will come with tax liability you need to anticipate
Overall, these items are valuable to consider and discuss with your attorney, and you’ve probably discussed several of them already. In fact, in complex cases we will often have an expert involved to help throughout the divorce process, which is something you should consider discussing with your attorney. However, most family law attorneys will tell you they do not provide tax advice. I always tell my clients to consult with an accountant or a tax expert to help them with filing and tax planning.
This is not necessarily divorce related, but it is an important notice for all Arizona drivers.
January 1, 2021, starts a new year, but it also brings in a number of new laws that become effective. One in particular, which will affect most people over 16, is the new hands-free law that precludes anyone from using a portable wireless communication device (PWCD) while operating a vehicle. The law falls under A.R.S. 28-914 and applies to, “A cell phone, portable telephone, text messaging device, personal digital assistant, stand-alone computer, GPS receiver, or any similar device that is used to initiate or receive communications, information, or data” (it does not include a radio). For clarity, you can use these devices in hands free mode; in fact there are a number of exceptions, which include the allowable options like the following:
So, what are the consequences of violating this law?
Happy New Year...and I look forward to seeing you in 2021.
January is called ‘Divorce Month’ because, almost every year, more divorce cases are filed in that month than any other. This year, with everyone having the additional difficulty of living through a worldwide pandemic, it is likely the number of cases will be even higher (I hope this is not true, but based on the increased volume of family law cases in 2020, it’s likely). So, if your 2021 includes a divorce, this article may help. Here is a list of 4 things you should do to prepare for filing for divorce.
#1: Consult with a Divorce Lawyer: Over the years, a number of friends and family have asked whether they need a divorce lawyer or not. I always tell them YES. Now, financial realities may impact whether or not the ongoing services of an attorney are feasible, but a consult is wise. If you have the resources to avail yourself of an attorney’s services and support, I do believe everyone can benefit from having a good divorce lawyer on their side.
For your consult, it is important to find the right attorney (please see my prior blog below: “Hiring the Best Family Law Attorney for You” from 9.9.19). At the start of this process, it is VERY important to consider the advice you are taking and the type of lawyer you want before you ever start interviewing potential counsel to represent you. Do you want to have a big fight and take your pound of flesh…or do you want to get a fair resolution without spending everything you have accumulated to get divorced? Take the time to consider what you want, what you’re willing to accept, and how you want to get there. A good attorney, who is experienced in family law, can strongly advocate for you while avoiding incurring unnecessary fees and costs. However, if you have a situation involving children and their well-being is at risk, by all means protect the children and find an attorney with a strong track record in high-conflict family law cases and the areas that impact yours.
#2: Assess Your Assets:
Determine what assets you have. You should start looking at all of your financial accounts, life insurance policies, investment accounts, real estate, and any property you may own (cars, house, art, jewelry). For all of your accounts, I would encourage you to get account statements, log in information, and verify beneficiaries. Regarding property, it would be helpful to get Kelly Blue Book values for cars and toys (NADA may be necessary), to determine their values.
#3: Assess Your Debts:
Determine all of your collective debt. Any debt obtained during the marriage will be community debt; any debt incurred prior to marriage will be separate debt. There are some exceptions, but that is the general rule. You should get account statements for all of the debt. Student loans are one area that you should consider, as often these debts are incurred as a combination with part before and part after the marriage. Try to consider what the loans were used for. Not a wise financial decision, but I used part of my student loans to take a nice family vacation. In a circumstance like that, it can be easily argued that the debt is one of the community. Finally, as with your assets described in #2 above, you should also get statements and log in information for these accounts as well.
#4: Make a Plan:
I have written a couple of articles on making a plan, so please read those articles as well, but you need to have a plan to help you and your attorney achieve your goal. I really like the Navy Seal R.E.A.C.T., plan described in detail in my 10.3.20 blog, which stands for:
Recognize your reality
Evaluate your assets and position
Asses your options and outcomes
Choose a direction…and communicate it
Take action…get off the “X”
My final piece of advice, if divorce is a part of your 2021, is this: Divorce can be hard. As you’re taking stock of your assets and liabilities, I cannot overstate how important it is to identify and lean on your support system! Everyone’s squad looks different, so identify the friends and family you can count on for unconditional love and support as you go through this. When you identify, please keep in mind that I’m referring specifically to the people who will be PURE YOU. Let me be clear: Everyone will not. In every marriage, friends and family are shared…and in every divorce, people will pick sides. It’s natural, but painful nonetheless. Rethink your squad through the lens of this divorce. Your support system needs to be composed of people you can 100% count on for discretion and unconditional regard FOR THIS MOMENT IN YOUR LIFE…and beyond. Your need to count on your team for discretion, loyalty, and positivity. This is going to be emotionally and psychologically draining as it is, and having someone on your support team who betrays, leaves, or hurts you is not a distraction you want to invite. With the right attorney and loved ones, you will be on the journey toward starting something new.
Family law can leave you feeling overwhelmed, stressed, confused, depressed, angry, exhausted...all very normal reactions, but not a fun way to live. These feelings can also make you feel indecisive and paralyzed with doubt during what is a difficult time. Sadly, family law cases are not a short blip in the lives of legal parties; rather, cases drag on for large portions of a year and longer. In fact, some cases just never seem to end, with one post-decree motion filed after another; it can feel like it’s never-ending.
A July 2020 article in Forbes magazine shared how anyone can benefit from using a tried-and-tested Navy S.E.A.L method to take charge of a life ambush. R.E.A.C.T. is a simple acronym for five steps that empower a person to identify their situation and take action. No more feeling stuck. No more being a hostage to anxiety. No more feeling confused and unclear. Check it out:
Recognize Your Reality
It’s important to have an accurate, clear view of your current legal and personal situation. This is not as easy as it sounds...you need to take stock! Without true clarity, your feelings may be driven by falsehoods, and your actions may do more harm than good. Be honest in your assessment.
Evaluate Your Assets & Position
Take stock of your resources, both material and human….and be thankful! Evaluate your liabilities. Take this same inventory for the other parties impacted by your case. This strategic step will probably include asking questions of experts in finance, law enforcement, mental health, and family law. It should include collecting evidence and data to help you clarify your reality and eliminate biases.
Assess Your Options & Outcomes
Once you have a clear picture of your reality and have a strong sense of your assets and weaknesses, along with those of the opposing party, you can begin to assess the short-term and long-term options available to you...along with their outcomes. This will be critical for the next step of R.E.A.C.T.
Choose a Direction...and Communicate It!
Your evaluation of options and outcomes will lead you to a plan of action. Although plans should and will be adjusted as more information comes available over time, creating an initial, informed plan will take back some piece of mind from the torturous unknown. Once you have a plan, communicating it clearly with your attorney and support system(s) will be helpful in moving your case, and your life, forward!
Take Action...Get Off the ‘X’!
There is an undeniable satisfaction in action...taking charge of our lives. Waiting for the ‘perfect moment’ is a mistake. Waiting for ‘things to change’ is unlikely. Taking decisive action to implement your plan, even though doing so may be painful and difficult, is how you will move your life forward to a better reality. NOTHING is worse than where you are now...get off the ‘X’!
I hope you find this protocol as helpful as I did. During the chaos and fear of a family law case, feelings of helplessness and sadness can make things even worse. I hope that you benefit from the wisdom of the Navy S.E.A.L.S, who are experts in engaging effectively in the most dangerous battles.
While I have not posted recently, if you have read my blogs, you will see that I normally handle high-conflict custody disputes, which can be some of the toughest cases to handle. Today, I thought I would discuss a fairly new opportunity for couples that want to get divorced while avoiding negative animosity and saving significant money on legal fees.
In January 2020, Maricopa County approved a new procedure whereby parties can submit a Summary Consent Decree and avoid the litigation hassle. Normally, one party will file a Petition, then the other party will file a Response, and then the litigation process begins. In this new process, the parties will file a joint Petition and Response that essentially outline all of the parties’ agreement then uses this information to complete a Consent Decree (an Order that sets forth the parties agreements). Once the Joint Petition and Response are filed, you still have to wait the 60 days to file the Consent Decree, but once the Consent Decree is filed, the Court will sign it and the parties will be officially divorced. Sounds simple enough.
While this process is a lot easier and highly encouraged, it is recommended that you use an attorney who knows family law to assist you in the process to make sure your Decree is done right. I deal with a significant number of cases that have to go back to Court to fix or change poorly drafted Decrees or to obtain modifications that were not considered originally. I suggest avoiding the additional time and expenses by making sure it is done right the first time.
Another point about this process to consider is that if you and your spouse are in agreement on the majority of issues, but not all, meeting with an attorney (who acts as a mediator rather than representing either party) to negotiate the final item or two can be helpful. Since this is a fairly new process, I’m not sure what other attorneys are doing, but Castle Law, LLC. has developed a service specifically for this new process. It includes two one-hour sessions to finalize the agreements, draft all documents, and submit them to the Court for a flat fee of $2,500. To put this in perspective, our normal retainer is $5,000.
As a family law attorney, I can tell you there is a significant cost to litigation that is not just monetary. This new process, if successful, can save you and your family a lot of heartache and some money.
Cheers to an amicable divorce!
If you have read some of my prior blogs, you know that I’m a BIG advocate for having very detailed parenting plans and enforcing them to the letter unless (or until) you and your co-parent can effectively collaborate in a child-centered manner. Our recent pandemic, however, is going to change how parenting plans are implemented. I would hope that effective co-parents would be able to work this out without any disruption in their or the children’s lives, but in my world of high conflict custody disputes, this is unlikely.
First, I have to include this disclaimer: This is not legal advice, and you are encouraged to consult with your attorney (if you have one), or contact one, to get advice specific to your situation before taking any drastic action.
Second, I live in Phoenix, Arizona where they have declared a state of emergency to force bars, restaurants and city services to close; and schools and universities closed last week. Residents are encouraged to remain in their homes, and many businesses have made arrangements, where they can, to have employees work from home. We have not gotten to the point of being policed and forced to quarantine strictly, but there has been a marked shift in how we are living. So, how does this impact parenting time?
As expressed above, one would hope that parents would be able to work this out and avoid conflict, but in high conflict cases this is unlikely. This is a judgment call, but there very well could come a point at which transitioning a child is not healthy or poses too great of a risk to justify the potential harm to the children. I cannot say with any certainty, but as this moves forward, I do think judges are going to give a parent more leniency who elects to keep the children out of reasonable fear of contracting the virus. This does not mean they will get a free pass, but it does mean the courts are unlikely to take any significant action against the violating parent. My advice to the violated parent: You may want to consider letting this one slide.
As with any case, there are a number of factors that will have to be considered and this article cannot address all variables. Right now, stories are emerging of first responders and medical professionals who are living in alternative housing to protect their own kids during this time. If a parent works in a profession that is in high contact with the public, then considering shifting physical care of the children during this time may be prudent (minimum of two weeks). Additionally, homes with elderly grandparents or immuno-compromised family members may wish to isolate for self-preservation. Similarly, if a parent has ANY knowledge that he or she may have come in contact with an infected person within the last two weeks, they should want the child(ren) to stay with the other parent. Remember, the idea is to reduce the spread and try to avoid putting yourself or the children in any danger.
In a situation where shared, in-person parenting time becomes unsafe for one parent, there are several things the parent keeping physical care of the children could do to ease the disruption. The easiest thing to do is schedule a video conference (try FaceTime, Google Meet, Zoom, etc.) to maintain emotional connections safely. If schedules to chat live just don’t line up cleanly, Marco Polo is a fabulous, asynchronous video chatting app that works around that by allowing one party to record a video message so the other can read when they are able. Another wonderful distance tool is Netflix Party. This Google Chrome extension allows two people to watch a movie together while physically apart...and it has a chat feature to allow party members to talk as they watch. This can also be a wonderful time to let children create family and event scrapbooks to realize emotional connections in the physical world. You can go old school with this activity, or you could leverage all of your photo and video files on your phone through products like Shutterfly and Smilebox. Grandparents can benefit from these projects too!
This pandemic should not be used as an opportunity to harm or punish the other parent. In the face of uncertainty and anxiety, we need to focus on the well-being of our children in making parenting decisions. Wishing everyone the best during this challenging time.
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!