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.
As promised, today’s blog will laser in on another piece of Marriage Story and connect it to real-world family law issues in Arizona. This installment is about...RESIDENCY! At the beginning of the film, this issue feels innocuous, but viewers see how it is pivotal as the case unfolds. Residency is one of the most critical elements of this film, so I will explore how residency dictates divorce and parenting time realities in New York vs. Los Angeles...and how that plays out in Arizona.
In any divorce, where the suit is filed matters! This sets the case’s jurisdiction (location of the fight) that can significantly impact the case from beginning to end. When children and parenting time are involved, this is a critical determination in deciding where the child will reside. Our standards are not set nationally for family law! Each state has its own unique statutes that will set the ‘rules of the game’ for a case. Under the state’s umbrella, each jurisdiction (county) will have its own rules and social mores that impact the process. First and foremost, US News & World Report found in 2019 that only two states earned an A about honoring the principle of equal parenting time...and the average score in the nation was a D+. Additionally, The jurisdiction will likely maintain control over the case, presiding over all subsequent post-decree disputes regarding parenting time and relocation would be decided by that court. Like I said, this is a big deal; jurisdiction determines the arena of this fight for life. This is why many clients and attorneys engage in ‘forum shopping’, trying to leverage advantage for their cases by establishing the fight in the location friendliest to their arguments.
All states have requirements that must be met for jurisdiction; California’s rule is six consecutive months plus the three most recent months prior to the filing. Conversations in the movie regarding where Nicole went to high school, where she wanted to spend a year, where her family lives...none of those are relevant to establishing the jurisdictional requirement to file in California. In Arizona, residential requirements include proof of residency for at least 90 consecutive days...barring an emergency situation involving child safety. Setting aside these technical issues, let’s focus on the general issue of how the location of filing can affect the process and the outcome.
Assuming Nicole qualified, the movie doesn’t clearly illustrate the hardship the jurisdiction, set by Nicole’s strategy to file in LA, has on Charlie’s life. At the end of the movie, due to his need to split time between his work in NY and his son in LA, Charlie essentially loses his theater company and Broadway show and relocates to LA to take a position with UCLA. Now, we have no idea of the long-term financial or professional impact of this decision, but it is clear that Charlie’s decision not to fight the jurisdiction was the factor in his case that had the single largest impact on the rest of his life as a parent and professional. What lesson does Charlie’s story have for people on the precipice of divorce? The second a spouse files in a jurisdiction that runs counter to your interest...FIGHT LIKE HELL!. Furthermore, whenever an action is filed that is a marked departure from prior discussions/agreements, interpret that as an emergency and hire a competent attorney immediately.
Project forward. Consider how jurisdiction continues to impact Charlie in the subsequent years (spoiler alert: the issuance of a divorce decree is rarely the last time divorcing parties with children are in court). The court with jurisdiction will impact all future custody, parenting time, relocation, and child support issues until the children are adults.
My advice, even if you have every reason to believe you are going to have an amicable divorce, consult attorneys and find one that is a good fit for you should circumstances escalate. The divorce process seems to bring out the worst in people, and you need to know your rights and be prepared in the event your spouse elects to take an aggressive path. One of the biggest mistakes you can make also affected Charlie; don’t be caught by surprise, unsupported, against a deadline you’re not prepared to effectively address. Also, when children are involved, it is very important that you try and maintain a focus on what is best for the child. In subsequent blogs, I will address some of the concerns raised in the movie about parenting and co-parenting behaviors.
Warning: This contains spoilers about Marriage Story.
I really had no desire to see the award-winning Marriage Story. None. In the same way that a doctor might have zero interest in watching Grey's Anatomy, the last film this family lawyer wanted to watch on Friday night was a movie about divorce. Last night, though, as sometimes happens in my shared-remote life, that’s exactly where I found myself. Marriage Story didn’t offer me the escapist adventuring I love most about movies, but it did incorporate many key issues central to the majority of divorces in this country. So, in an ironic twist, I will be analyzing and expanding on different issues in this movie I didn’t want to watch because they have interesting, powerful implications for divorcing parties.
It is important to note that while divorces are VERY common, rarely are divorces the same; while they all have similar characteristics, they are all unique. These blogs will offer one perspective, but they are not meant to be a substitute for speaking with an attorney about your case specifically. That said, Marriage Story offered fascinating and important considerations about all-too-common issues that I regularly help my clients navigate. Some scenes provided explicit exploration of how issues like residency, parenting time, infidelity, and asset division are addressed in the divorce. Other scenes offered too-fast, overly-vague intimations about critical topics like judge and attorney qualifications, subsequent relationships, and co-parenting that beg for further exploration. Today’s blog will laser in on the parenting evaluation piece of the film and connect it to real-world parenting evaluations in Arizona.
THE PARENTING EVALUATION.
Adam Driver’s character, Charlie, is Skyping with a decorator to adorn his apartment with cozy furniture, a welcoming rug, framed artwork from his son...and (I think we can all agree) way, way too many plants. The Whole Foods paper bag sits on the table as he roasts organic vegetables and prepares a dinner with enough nutrients to sustain a child for a month. What is going on here...and did he really have to work so hard?, And what power does that the kooky, tap-water drinking, socially-awkward evaluator wield?
In Arizona, full parenting evaluations are only ordered when:
1. A party requests one
2. Legitimate fitness concerns exist
3. There is no objection from the other party
4. One or both parties can afford it
During an evaluation, the evaluator observes the interaction between a parent and child. They look to see if the parent is aware of, and responsive to, a child’s needs. They survey the environment to verify it is safe and free from drugs, unsecured weapons, and poor judgment.
These evaluations are never paid for by the state in civil cases, as they are exceedingly expensive, ranging from $6,000-$10,000 each. If there is an objection, and there isn’t enough of a concern or financial resources to pay for it, the judge can decline to order. These evaluations can occur in the parent’s home, in a psychologist’s office, or a combination of the two. They can solely include observation of the parent and child interacting...or they could also include personality testing (like the MMPI) designed to determine the presence of mental illnesses that could negatively impact their ability to parent. In the film, we get a brief glimpse of psychological testing for both Nicole and Charlie.
The purpose of a parenting evaluation is to influence a judge’s decision about what parenting time is in the best interest of a child’s growth and development..and which parent should have legal decision making authority. Parenting evaluators are independent contractors, used by litigants in court, to support their respective positions. They are typically trained mental health providers. Their job is to convey the information procured during their assessment activities. The vast majority of the time, appropriate or not, parenting evaluators will also make a recommendation to the court addressing legal decision making and parenting time.
Back to our movie. We never get to see the evaluator’s report...but we learn that the final parenting time split approved by the judge is 50/50 (although Nicole’s attorney negotiates her client an extra 5% on principle). The clean, safe home and healthy dinner offered by Charlie checked some boxes. His redirection of his son when he doesn’t want to help with dinner certainly checked some more. The weird knife incident, you ask? I hear you. Certainly painfully awkward, but not enough, in aggregate with all other evidence of Charlie’s evaluation (most of which we didn’t see) to deny his equal parenting time. Additionally, we did not witness Nicole’s evaluation, which would equally play into any judge’s decision regarding legal decision making and parenting time.
Parenting evaluation was just one interesting piece of this movie. Check back for my next Marriage Story blog, which will focus on the HUGE role that establishing residency played in Charlie and Nicole’s divorce...
Your Only Rule: PREPARATION!!!
“It’s an unfortunate fact that we can secure peace only by preparing for war.” -JFK
“By failing to prepare, you are preparing to fail.” -Benjamin Franklin
“Don’t depend on the enemy not coming; depend, rather, on being ready.” -Sun Tzu
“Be prepared.” -Boy Scout motto
“The future belongs to those who prepare for it today.” -Malcolm X
“Confidence comes from being prepared.” -John Wooden
“Plan your work for today and everyday; then work you plan.” - Margaret Thatcher
There’s total consensus in Quoteland about the importance of preparation. Despite era, country, expertise, profession, party, race, gender...a universal agreement exists about how critical preparation is to success. So let’s apply the practice of preparation to high-conflict holiday parenting! If you’re new to high-conflict parenting, please see my general interaction guidelines published in my August blog ‘5+1 Parallel Parenting Must-Dos’. Seems like I always circle back around to these during the special times of year when the stakes are higher and events are more precious.
WRITTEN PREPARATION: THE HOLIDAY PARENTING TIME PLAN
The holiday parenting time plan needs to be 100% in writing and highly specific. Worst case scenario, without a written plan, there is no legal recourse if you find yourself in the situation of needing to call the police about custodial interference or kidnapping. Best case scenario, without a written plan, there is plenty of ‘grey area’ for a former spouse to manipulate, scare, and aggravate. To make it as useful as possible, the written plan should have several specific elements to prevent conflict:
One of the guarantees I can make about high-conflict holiday parenting is that someone is going to try to introduce chaos and sow seeds of discontent. That’s what makes it a high-conflict situation! As the stable parent, be steady, consistent, and resolute. Do not deviate from the written plan outside of a 100% documented emergency. No day swapping. No time changes. Work your plan (it’s why you have it). Deviating from the plan teaches the dysfunctional party that you do not actually require adherence to your written plans and agreements...a horrible and dangerous message to send. At all costs, unless it is an emergency, avoid last-minute changes and communications. Often, in high-conflict situations, standards are intentionally not met to facilitate antagonistic communication with the other parent. Don’t take the bait.
PREPARATION FOR (ugh) INTERACTING
JUST DON’T. Stick to the communication rules of high-conflict parenting observed the rest of the year: Speak as little as possible. Speak in writing. In advance. Speak through email aligned to my guidelines...maybe even supervised email (depending on the severity of your situation).
DON’T get tricked into the holiday spirit that does not apply to your situation. Don’t be swayed by sappy holiday movies and nostalgic movies. Changing your interaction rules, set for your own well-being, sends messages counter to your position and will create months and months of subsequent cleanup. Thinking about texting some holiday pictures of the kids to be nice? ABSOLUTELY NOT! See my July blog for High-Conflict Back-to-School Tips for guidance on this. Or try this...imagine that I’m going to bill you $25 for every word you speak. Rules for the other 364 days of the year apply to Christmas!!!
Your strict limitation on communication does not extend to the kids. If children are old enough, and one parent can’t see the kids on holiday, and that parent has requested it, you can facilitate a phone call...but do not be a part of it. Not even a perceived part of it.
What about the Grandparents...
Typically, my advice is that communication with grandparents is the responsibility of each grandparent’s child. In high-conflict situations, even well-intentioned cross-communication with your ex’s parents can be fraught with discord. You run the likelihood of info you share being passed along to the high-conflict party. You also run the risk of the other parent viewing grandparents as an acceptable, alternate avenue for communication with you, which it is not. Recognize that is no longer your job to make up for your ex’s lacking parenting or social skills.
PREPARATION for GIVING
This is a grey area. How do you handle a child who wants to buy/wrap a present for your ex? You want to support your child’s giving nature, but you don’t want to send a mixed message about your position.
Remember, you’re NOT dealing with a typical person in a high-conflict situation. For example, narcissistic parents interpret this act as the other parent still loving and wanting them. Parents with financial grievances will pick at your spending. You just can’t win this one...so avoid the conflict.
A nice middle-ground is to encourage the kids make something independently. When the child asks to buy a particular gift, say, “That’s a great idea...why don’t you draw a picture of that?” Then let them do the wrapping. You want the gift to be construed as 100% from the child...and it’s a great way to help your kids really own gift giving and their relationship with their other parent. You can still be hands-on in your child’s gifting arena for grandparents, teachers, and friends.
Real estate is often one of the largest assets of a marriage. As such, consulting clients often ask what will happen with their house. This question has two possible answers to it: one party may keep it and buy the other out, or the parties can sell the property and divide the net proceeds equitably. There are two steps important to either decision.
#1: Valuing the property
First, the value of the home needs to be determined. If the property is going to be sold, the realtor will generally assist the parties in determining the market price. If one party is going to keep the house, he or she will use the valuation to determine the funds necessary to buy out the other partner’s equity, which is determined by obtaining the value of the home and subtracting the outstanding mortgage.
This sound straightforward, but it can be complicated when the parties do not agree on the value. If the parties cannot agree, there are a few resources that can help: Zillow, market comps from a realtor, or hiring one (or multiple) private appraisers. If the matter proceeds to trial, the court is likely to give more weight to an appraisal than a comparative market analysis.
#2: Paying for repairs
Regardless of the decision of sale or buy-out, repairs to the home may need to be made. There are a number of ways this can be accomplished. Some couples split the agreed upon costs equally or proportionate to their respective income. Sometimes, the higher wage earning spouse will pay the costs upfront, and then at the close of escrow, that party will receive a percentage of the costs paid prior to the parties dividing the net proceeds. In some instances, the spouse retaining the residence will assume responsibility for repair costs.
Should You Keep the House?
I normally advise my clients against keeping the home unless there are special accommodations that have been made to the residence for disabled family members. My typical reasons for selling, which are completely dictated by logic alone, include:
You want to find the best attorney. You talk to friends. To colleagues. They pass you some names of promising candidates. You Google: ‘best family law attorney arizona’, ‘best divorce lawyer arizona’, ‘best child custody lawyer phoenix’. You search ratings on AVVO, Lawyers.com, and Legalmatch.com. You comb websites. It’s JUST. TOO. MUCH. How can you really find the best lawyer? The truth is, there is no ‘best lawyer’; there is only the best lawyer for you and your situation. Attending to three things can help you achieve this: introspection, interviewing questions, and interview reflection.
PART 1: INTROSPECTION
First, here are two things you need to determine before interviewing any attorneys. These are things only you know - no attorney has this information. Although your expectations may change over time and across situations, YOU will be the one determining the course of your case:
Once you can answer those two questions, you need to interview potential attorneys who have the skill set and temperament to reach your goals within your parameters. Remember, YOU are interviewing THEM...not the other way around! You need to come to each interview prepared with questions, and you need to take notes. Here are 6 questions that I would always ask:
Funny...when I read through these items, they sound so much like the mental gymnastics we run through when we’re on a first date! As odd as that may seem, it’s entirely true. Mindfulness during the interview is critical. There is a very real gut-check that should happen on your part during these meetings. In the interest of helping you glean some crucial information during your lawyer consults, there are 6 key things to watch for and be mindful of during your interviews:
Photo by Xavier Mouton Photographie on Unsplash
Co-parenting is all the rage. Conceptually, it is awesome. It requires two well-adjusted, divorced adults who are committed and able to put their personal hurt and emotions aside in the interest of working jointly in their child’s best interest. Co-parenting demands ongoing communication between the parents and regular interaction. It seeks to unify the parenting styles across the two households, and through consensus, to establish consistent, common routines and expectations in both homes.
Does this sound like a nightmare to you? You’re not alone. In my world, as a divorce attorney who deals with many high conflict situations, the co- parenting model is an untenable pipe dream. In a high conflict relationship, parents are unable to effectively communicate productively at all. They definitely cannot set aside their own adult emotions and needs for the benefit of a child. Control is wielded as a tool of power, and even little compromises are unfathomable. Not even when a judge is involved. To minimize high-intensity interactions, some courts have ordered a very different parenting model, whereby the divorced couple each parent unilaterally during his or her respective parenting time with the primary benefit of minimizing interactions.
Enter Parallel Parenting:
First and foremost, parallel parenting is only employed when both parents are safe, mentally stable, sober, and healthy. If a child’s well-being is ever in question, contact a lawyer immediately to seek a temporary order. Safety first!
Parallel parenting encourages minimal interaction or communication. Information is still shared, but almost all communications are via email (or some form of writing) to document the communication and eliminate live improvisation. Parallel parenting recognizes that there will be no consensus between the two estranged parents, and that each is capable of establishing healthy and reasonable routines, in their respective homes, with very little interaction.
What Does This Look Like?
5+1 Parallel Parenting Must-Dos!
Let go of the guilt. All marriages and divorces are unique...and 10% of divorces are high-conflict. In most high-conflict divorces, one party is the antagonist due to mental illnesses and/or substance abuse. If you're reading this, odds are you're not the cause of the conflict. Parallel parenting is not a lesser-than strategy. It's not a give-up. Gwenyth Paltrow is not going to show up at your house to parent-shame you and discuss conscious uncoupling (ugh). Parallel parenting is a conscious and strategic technique to minimize unnecessary conflict with an antagonistic ex so you can save money and build a more peaceful future for yourself and your children.
This article is not intended to determine which method is better, but to recognize that more than one option is available. Each family needs to avail themselves of the model that best fits their situation and needs. In many of my cases, co-parenting is NOT a viable option; in fact, it can be damaging to try. Parallel parenting is something that works for many families, and ultimately, can be in the best interest of the child.
Divorce parties are a thing around the world. You can read about them almost anywhere. Parents Magazine published an article in February about them. You can find thousands of Pinterest boards offering party planning ideas. In 2017, The Guardian shared a story about how planning a divorce party for her best friend turned her into full-time divorce party planner. In 2018, Glamour Magazine published an article about divorce parties, sharing their Twitter, Facebook, and Instagram hashtags and revealing shocking party price tags of up to $20,000. For a good laugh, you can even visit Buzzfeed to see 24 Hilarious Divorce Cakes That Are Even Better Than Wedding Cakes.
As a family law attorney, I’ve had several clients host divorce parties. In fact, a client whose divorce was finalized this month is planning one as I type this. In all of the cases I’ve experienced, divorce parties were not about celebrating divorce itself. Divorce, even in its most evolved iterations, is typically painful and disappointing on some level...certainly not party-prompting. Rather, the divorce parties I’ve witnessed are always about reconnecting with friends essential to moving life forward. They are also about providing closure to a painful but positive milestone in life. Maybe these parties are misnamed entirely. Phoenix parties? Lotus luaus? Gloria Gaynor galas?
If you’re considering a divorce party of your own, or hosting one for a friend or family member, I have some practical suggestions to consider (I know - buzz kill family law attorney strikes again!). The majority of my clients are in high-conflict divorce situations...so I’m always sensitive to minimizing antagonism. In high-conflict situations, even the rumor of a ‘divorce party’ would prompt retaliation, venom, confrontation, or harassment. Outside of a high-conflict situation, in the world of relatively well-adjusted adults, news of a divorce party still has the potential to hurt feelings, cause discomfort, and burn bridges unnecessarily. In the spirit of moving forward positively...and doing no collateral harm...here are 5 divorce party recommendations:
Whether you’re a fan or not, divorce parties are a widespread reality around the world. Here’s to hoping that are supportive and future-focused celebrations that affirm life, strengthen friendships, and bring healthy closure to a complicated milestone!
HuffPost’s Test Kitchen ran an incredibly powerful article a few years ago, This Is Not a Love Story, chronicling the overwhelming intimate partner violence and homicide in the US, then followed that up with a CDC summary titled Who Is Killing American Women, Their Husbands and Boyfriends, CDC Confirms. Sadly, this is a seemingly never-ending reality that continues to play out in our news cycle. Just this year, in our own Phoenix community, Dwight Lamon Jones killed six people in a rage of violence fueled by his anger about his divorce and child custody arrangement. Just this month, John Formisano, in the midst of his divorce, shot and killed his wife and critically injured her friend.
These events are constant reminders that the amount of information people have about potential perpetrators of intimate partner violence varies, from John Formisano’s colleagues who described their shock about his actions as, “A tremendous understatement.” to Dr. Connie Jones’ assessment of her own ex-husband that, “I knew one day he would try to kill me”. Once family, friends, co-workers, and victims have knowledge of concerning behaviors and beliefs, we now have risk assessment tools that can be used as critical life saving tools. Some excellent ones can be found at womenslaw.org, the CDC, and the NCDSV.
In my high-conflict family law speciality, in this day and age, I am always mindful of potential lethality. Divorce and child custody disputes rattle even the most steady and healthy adults, but time and time again we see that they can prove deadly for adults in high-conflict situations. Here’s to all of us helping protect our loved-ones through proactive awareness and intervention.