Show Topic: The Basics of Divorce and Custody
This show aired on April 23, 2017, and was hosted by attorney David Enevoldsen. David discussed the basics of divorce and custody law and procedure, including such things as how child issues like parenting time, legal decision-making, and child support are dealt with. They also discuss the substantive law surrounding property and debt division, and spousal maintenance (alimony). They end with a discussion of how a case is processed through the court.
Headlines
Headlines on this show looked at the flight and apprehension of Tad Cummins after he abducted a 15 year-old student and the divorce of Ben Affleck and Jennifer Garner.
Did You Know
This show’s Did You Know looked at the statistics related to occupations with the 10 highest and 10 lowest divorce rates in the United States.
Transcript of Show
Speaker 6: The discussions and information provided in Family Law Report are intended to be general in nature and are not directed for any individual circumstances. No attorney-client relationship is being formed through this program. If you need legal advice your particular circumstances from what is presented here and you should seek the advice of an attorney licensed to practice in your state.
Speaker 7: Welcome to the Family Law Report, the show that explores issues related to marriage, divorce, and children. Hosted by David Enevoldsen, a practicing family law attorney in Arizona. Now here’s your host.
David: Hello everybody. Welcome to Family Law Report. I’m your host David Enevoldsen here with you every Sunday at noon on Independent Talk 1100 KFNX. On Family Law Report we discuss all the current topics of family ranging from what’s happening in the political arena to just basic things like how to work through the nuts and bolts of a divorce. I’m a practicing attorney. I work in family law and when I say family law I mean anything related to marriage, divorce, fights over custody of children, child support, pre-nups, anything of that nature.
I’m a partner at a law firm called Family Law Guys, an Arizona firm that focuses primarily on helping divorcing parents avoiding getting screwed out of time with their kids. We have offices in the Phoenix area and a Prescott office. We don’t practice outside of Arizona but if you have any desire to reach out to us and schedule a consultation with either myself or one of the other attorneys at our firm you can do so by calling 480-565-8680, or you can check us out on our website at www.familylawguys.com.
Today’s show we are going to get into the basic nitty-gritty of divorce and custody fights and we’re going to talk about how it works. What the basics of the law are, the basics of the process, and that sort of thing. I’m joined today by my co-host Shelley Rosas. Shelley works for the same firm as me, Family Law Guys. Shelley, thanks for coming down. She is not a guy.
Shelley: No, I’m female.
David: She likes to remind me of that fact.
Shelley: Every week.
David: She works for Family Law Guys but she’s not a guy. We have female attorneys too so don’t think that just because it’s Family Law Guys it’s just guy attorneys.
We’re going to start off with a couple headlines. For this week one of the interesting things that hit the press was there was a fellow from Tennessee who is a teacher and he ran off on March 13th with a 15-year-old girl who was a student at the school he taught at named Elizabeth Thomas. The teacher’s name was Tad Cummins if I’m saying that correctly. Prior to that, prior to March 13th when he ran off, there was a student that had seen the two of them kissing in a classroom and then shortly thereafter he vanished.
Amber alerts were issued in Alabama and Tennessee. Cummins was fired the day after the two of them took off. A couple days later on March 15th they were spotted in some security footage in a Wal-Mart in Oklahoma, so it was clear they were kind of running across the country. No one had seen anything for a while. Police were hunting everywhere. Well, on Thursday of this week Cummins and Thomas were both caught in California. Police arrested them, obviously returned Thomas, the child here, to parents. Cummins is now facing charges of aggravated kidnapping and sexual contact with a minor.
One of the other interesting wrenches in this particular article is that Cummins was married. There’s quite an age disparity here. It’s not even like this was just some 20-year-old teacher that was kind of hooking up with somebody that was 17 or something like that. I didn’t write down the ages but I believe he was 50 and she was 15 if I’m correct on the numbers. Quite an age disparity. Cummins was married and so his wife who knew everything that was going on immediately went out and filed for divorce right after they disappeared. She also made an appearance on Good Morning American about this whole thing in which she’s quoted as saying, “It’s very selfish of him to have done this to us. I do love him but I don’t trust him anymore. He’s totally betrayed me. It’s kind of like death because the Tad I knew is gone. I forgive him and I still love him but it doesn’t mean that I could ever trust him again because he betrayed my trust to the point that it’s totally broken.” Yeah.
That seems to almost go without saying, wouldn’t you say? That if your husband who is 50 or so runs off with a 15-year-old girl and then runs across the country … I mean, ignoring the fact that he’s probably going to be in prison as soon as he gets caught, ignoring the fact that he’s completely abandoned you, there’s this underlying trust issue, which seems to me to be the core problem with affairs in general. It’s not even necessarily the act in my mind, at least, it’s often the trust betrayal. It’s that sense that you’ve got someone wrapped up and you’ve kind of made these commitments to somebody and then you breach that commitment in essence. I think that, from my experience at least, that’s a major part of the problem with things like cheating or affairs or that sort of thing. Here there’s a lot of extra stuff compounded on it so she’s gone and filed divorce and obviously that’s in the works.
In other news, we had recently talked about Ben Affleck and Jennifer Garner on the celebrity divorce front. About a month again I mentioned them because they’d come out in the press and said that they had previously separated back in June of 2015 and they had kind of publicly announced that they were going to give it another go because they were both super concerned about their kids. They were going to try to reconcile, in essence, for the sake of their children.
Well, they have officially filed for divorce. They both did it simultaneously. They’re respective filings are pretty sparse in information from what I understand. It just says the very basic stuff. In fact, they filed both in proper meaning that they did it without any attorneys and it’s just listing … Now, keep in mind that doesn’t mean there weren’t attorneys involved. It just means that attorneys didn’t put their names on the actual filings. It’s my understanding that there’s something … This all took place in California. I don’t know the mechanics of this because I’m not admitted in California but it’s my understanding that that had something to do with them trying to protect their personal information from disclosure. Do you have any idea how that works? I’ve never heard of, in Arizona at least. I don’t know why that would make any difference if somebody was filing on their own as opposed to filing under the name of an attorney.
I read some article saying they were trying to keep as much out of the press as possible. Sounds like they’re cooperating in every way you can. In fact, on Easter, right after they had filed they were seen coming out of a church service with their kids. I saw some photographs online where they were kind of looking at each other, smiling, laughing, happy. They went in with their kids. To me there’s a couple different interesting points in here. One is you can use an attorney in a limited scope capacity, meaning that you don’t have to necessarily have them fully representing you and you can just have them fill paperwork out or give you advice or something. You can go down to the court and do that. I don’t know what all’s going here in that respect but they filed in that fashion.
Second one is that divorce doesn’t have to be this major, massive conflict. We don’t have to fight. It’s kind of unusual from our perspective. Would you say the same?
Shelley: Yeah. I was just going to say I’ve really liked that you brought this up because so many people choose to stay married for the children and actually all the research and everything tells us that staying married for that reason is actually more detrimental to children and because divorce-
David: If the relationship has demised.
Shelley: If the relationship has demised, that we know that to be true and in my practice I’ve seen that anybody who’s done that, it hasn’t ended well. Of course, I always see all the problems. But additionally that, you know, I was thinking last night sunset is a beautiful thing and it doesn’t have to be terrible. The end of a marriage and a divorce doesn’t have to be terrible and you can teach your kids some very valuable lessons by ending the marriage relationship and maintaining the parenting relationship because you love your children.
David: Yeah. Absolutely. I do kind of appreciate the perspective of we have kids and we’re not going to just throw away a marriage because we’re upset at any given moment and we think it’s still possible to reconcile all this. I would contrast what you just said with the situation where your marriage is clearly done and one or both of you are completely miserable by maintaining the situation and then you say, “Well, despite the fact that I’m miserable and we’re fighting or there’s stress or whatever, we’re going to still stay.”
Shelley: Or you’re alone.
David: Or you’re alone.
Shelley: Or you’re married and alone.
David: Yeah. Any of those situations. I think those are bad situations to keep for the children. Number one, they’re going to soak up your stress because they’re going to perceive it even if you’re trying to hide it. Number two, you’re teaching them that if you are in a miserable situation they should stay there. Essentially you are training your children who are going to model your behaviors to go out and do the exact same thing.
Shelley: Yeah. You want to teach your kids to create the best life for themselves that they can and by demonstrating self respect for yourself, independence, healthy boundaries for yourself, you may be actually teaching your children something better by ending the marriage relationship.
David: To my original point-
Shelley: Now I’m not saying pro-divorce here.
David: Right.
Shelley: I would do everything I could to avoid that.
David: To my original point though, even if you in a situation where you’ve tried everything and you’re going to get divorced, it doesn’t have to be this huge fight.
Shelley: No.
David: I’ve seen at least a limited number of situations where the parties may not be happy with everything that’s going on. Obviously there’s going to be emotions involved no matter what. I’ve seen situations where they can make it work and people just don’t turn into this massive all-out brawl where they’re just trying to kill each other and do everything they can to damage the other party.
If you are in a situation, even where you do have the ultimately pull the plug and you are going to break up for sure, it doesn’t mean you have to go out and destroy the other party. Just try your best to get along because there, again, your kids are going to be soaking up the conflict between the two of you and the better you can get along the less miserable your life is going to be in the long run and the better off your kids are going to be because they’re going to recognize all that.
Shelley: And model after.
David: Absolutely. What are their relationships going to be like when they get older on that same level?
All right, we’re going to take a quick break. I am attorney David Enevoldsen joined by co-host Shelley Rosas. When we come back we’re going to be talking about divorce and custody basics. You can reach out and contact our firm, Family Law Guys, at www.familylawguys.com or you can call us at 480-565-8680. You’re tuned into Family Law Report on Independent Talk 1100 KFNX.
Speaker 10: Family Law Reports is hosted by Family Law Guys, an Arizona family law firm. Family Law Report is dedicated to confronting difficult issues related to marriage, divorce, and children. This can range everywhere from addressing the legalities and controversies of topics like gay marriage to current problems in the divorce system, to simply providing tips to those getting married or going through a divorce or custody fight. Tune in every Sunday to family law report at noon here on KFNX.
If you want to know more or to schedule an appointment with David or another one of the Family Law Guys attorneys call 480-565-8680. That’s 480-565-8680.
David: Welcome back to Family Law Report. I’m David Enevoldsen, attorney with the Family Law Guys, an Arizona law firm, here with you every Sunday at noon on Independent Talk 1100 KFNX. Joined today by my co-host, Shelley Rosas, who works for the same firm, Family Law Guys. Do you want to reach out and schedule an appointment with us, Family Law Guys? You can do so at 480-565-8680, or you can check out our website at www.familylawguys.com.
Today our topic is we are talking about the basics of divorce and custody cases. The law surrounding that, the procedure surrounding that. What all’s involved? If you’re about to go through this process, any of those process, or you’re in the midst of one, or if you’ve been through one and something might pop up in the future this is the show for you.
Now before we get into that topic we’re going to do our did you know for this week. On did you know we just do some kind of family law-related trivia. For this week I decided I was going to look at a journal article that took correlations … The journal article, it was entitled A Comparison of Law Enforcement Divorce Rates with those of Other Occupations. It was in the journal Police and Criminal Psychology.
In this particular article, which was done a couple years ago. I didn’t write down the date. But they went through and they essentially tallied up what careers, which occupations, have the highest divorce rates. There’s a massive list. Actually I’m really interested … I want to push you into a little test here because I wrote down the top 10 with the highest divorce rates and then the lowest.
Shelley: I know the top one.
David: Well then I’m going to make you go second.
Shelley: I’m sure I know the top career.
David: Okay. Well, wait. I want to ask you first. Josh is our board op guy. What do you think is the … I’m going to read you the top nine in reverse order, so I’ll start from 10. I’m going to stop at number one. I’m going to ask you both what you think. Let me stop with the top two. I’ll go in reverse order, so I’ll start from 10 because you said you already know what number one is so maybe you don’t know what number two is. Then I’ll ask you both what you think they both are.
All right, number 10 in terms of the highest divorce rates by occupation is people in nursing, psychiatric, and home health aid careers. Number nine is people in textile winding, twisting, and drawing out machine setters, operators and tenders. Number eight is telephone operators. That makes me think of the lines you call up. Those 900 numbers. Number seven is food and tobacco roasting, baking, and drawing and machine operators and tenders. Six is gaming service workers. Five is extruding and forming machine setters operators. Four is gaming cage workers. I don’t even know what that is. Number three is massage therapists, which I find interesting.
So question is what do you guys think are number two and one. I’m going to start with you Josh. What do you think?
Josh: I think number one is probably the entertainment industry.
David: Can you be more specific?
Josh: Like movies, television, actors, actresses kind of thing.
David: Okay. What do you think number two is? Shelley is shaking her head like she has the answer. Sorry. I don’t think you’re super far off, by the way.
Josh: That’s a tough one. Number two.
David: After the entertainment industry what would you say is number two?
Josh: Probably medical, like doctors.
David: Doctors. Interesting. All right. Shelley, what do you think number two is?
Shelley: I’m going to start with number one.
David: Okay.
Shelley: Can I do that?
David: Sure. What’s number one.
Shelley: Sales. Sales and marketing people that travel. Number one.
David: Nope.
Shelley: Ah. I’ve read that before.
David: Josh is actually a little closer than you. What’s number two?
Shelley: I would say sales and marketing and then number two I’d say lawyers.
David: No. Number two is bartenders, which seems intuitive if you think about it.
Josh: Interesting.
David: You’re in a situation where you’re around other people, you’re out kind of on the night scene. They’re up drinking. They’re probably going to be hitting on you. It kind of makes sense that there could be created dissension there.
Josh: As someone who worked in the nightclub industry for a long time I should have thought of that first.
David: Well, and also you’re probably always out at the kind of date hours because you’re working, right? You’re never going to have a Saturday night free if you’re a bartender. I’m just thinking intuitively. This is just my thoughts.
Number one, in terms of the highest divorce rates by occupation, is dancers. Which also almost seems intuitive, particularly if you wrap in like-
Josh: Is that a specific type of dancer?
David: I just says dancers.
Shelley: That specific type with the pole?
David: Yeah. I think that’s included in it which seems intuitive to me as well because there again, you’re in this environment where number one, you’re always going to be out on the weekends, the date times. That’s your peak times to go and get business. Number two, you’re already in this environment where you’re kind of putting yourself out there for other people, which is clearly going to create some dissension in your home relationships.
Shelley: My guess is that you probably attract men who want to take care of you and rescue you from that industry.
David: You’re assuming these are just women that are working.
Shelley: All right. But I’m thinking it might attract a personality type that’s like, “I’m going to rescue you, take care of you, and therefore control you as well.”
David: Yeah. Well, I found the data interesting. On the other end-
Shelley: Been there, done this.
David: Let’s reverse this now. There was also the … There was a long list of stuff so I wrote down the top 10 lowest divorce rates and occupations. I’m going to read those backward. I’ll ask you guys the same thing. What do you think are the top two of these? Or the lowest two I should say.
All right. Number 10 is chemical engineers. Number nine, conservation scientists and foresters. Number eight, nuclear engineers. Number seven, podiatrists. I found that one interesting. Number six, sales engineers. I don’t even know what that is. Number five, directors of religious activities and education. Number four, clergy. That seems almost intuitive. Number three, transit and railroad police. Josh, what do you think is number two and number one in terms of the lowest divorce rates by occupation?
Josh: I think the lowest is going to be IT guys because they’re never going to get divorced.
David: Because if they get married they’re going to do everything they can to-
Josh: Everything you possibly can to keep that marriage functioning.
David: That’s really funny. “I found a girl. I’m never letting her go.”
Josh: Yeah. Guy, girl, either way you’re going to hold onto that person for dear life.
David: That creates quite a stereotype of the nerdy IT person. Okay. What about number two? What do you think number two is?
Josh: Number two. Teachers.
David: Okay. What do you think, Shelley?
Shelley: I don’t know that I have a guess. Everyone gets divorced. [inaudible 00:23:05]
David: By the way, both of these seem like something I never in a million years would have guessed if that helps.
Shelley: Construction workers.
David: No.
Shelley: Okay. That was my guess.
David: That’s for both of them. You’re just …
Shelley: Oh, I have to guess twice.
David: Yeah. It’s not a very structured quiz.
Shelley: Grocery store managers.
David: Seems equivalent to what’s on here. Number two, in terms of the lowest divorce rates by occupation, is optometrists. All right. I have no idea what the correlation there is.
Shelley: I have a very nice optometrist.
David: Number one is agricultural engineers.
Josh: Okay. That one actually kind of makes sense.
David: What do you mean? What’s your thinking?
Josh: You figure they’re going to be alone.
Shelley: I was just thinking alone.
David: That’s true. There’s not a lot of temptations from outside things.
Shelley: Get a tractor.
David: You’re going to end up at home at the end of the night. You’re always … Yeah.
Josh: I could be way off on what they actually do but I would assume that they’re going to be out there with a lot of farmers and ranches and having to do with a lot of work with animals and things like that.
David: Makes sense. Probably more likely to have a very conservative, traditional marital mindset. They need to preserve the relationship.
Josh: But I’m not going to have a giant social circle working as an agricultural engineer.
David: True, true. Good points.
That’s our did you know for this week. The highest divorce rates and the lowest divorce rates by occupation. On the high level we’ve got dancers and bartenders right after that. On the low level we’ve got agricultural engineers and optometrists right after that. I found that very interesting so I thought I’d share it with all you guys.
Josh: I’m still shocked that clergy wasn’t the number one answer.
David: I know, right. But it was up there. It’s pretty high. It’s number four. Then right after that was directors of religious activities and education. So I mean, both of those ecclesiastical type positions are in there. At any rate, I thought ts was interesting.
All right. Today’s topic. We are going to be talking about custody and divorce stuff. Just kind of how this all works, the basics of that. Now just as a preliminary note, when you have the child issues that are embedded in divorce, so if you’ve got a divorce with children, versus a child case that doesn’t have a divorce, so you have a child out of wedlock and there’s a dispute over the children, they work the same way conceptually. At least in terms of the substantive law. The things you’re looking at in terms of who’s going to have the kids when? What’s the child support? Who gets to make choices about the kid? All that stuff is basically the same. I’m going to start off there in terms of the substantive law.
I tend to look at child issues broken up into three major categories. Number one is legal decision making. Number two is parenting time. The third one is child support. These, to me, seem to be the major things that you look at when you’re trying to figure out what you’re going to do with kids. Now legal decision making, and I hit this one just really quick. That’s just like it sounds. It’s essentially who gets to make legal decisions about the child. So for example, it could be what doctor are you going to? What school are you going to? What religion are you choosing? Who’s going to make the calls related to decisions that are legal related to the kids?
Note that there are some other states that call this things like legal custody. Arizona specifically has this name legal decision making. Historically it used to call it custody but that was confusing to everyone so we don’t. I’ll finish up talking about parenting time and child support when we come back. We’re going to take a quick break. I’m attorney David Enevoldsen joined by co-host Shelley Rosas. When we come back we’re going to talk more about divorce and custody basics. You are tuned into family law report on Independent Talk 1100 KFNX.
Speaker 10: Family Law Reports is hosted by Family Law Guys, an Arizona Family Law Firm. Family Law Report is dedicated to confronting difficult issues related to marriage, divorce, and children. This can range everywhere from addressing the legalities of topics like gay marriage to current problems in the divorce system, to simply providing tips to those getting married or going through a divorce or custody fight. Tune in every Sunday to Family Law Report at noon here on KFNX.
If you want to know more or to schedule an appointment with David or another one of the Family Law Guy’s attorneys call 480-565-8680. That’s 480-565-8680.
David: Welcome back to Family Law Report. I am David Enevoldsen, your host, attorney with the Family Law Guys, an Arizona law firm, here with you every Sunday at noon on Independent talk 1100 KFNX. Joined today by my co-host Shelley Rosas who works for the same firm as I do. If you want to reach out and schedule an appointment with us, Family Law Guys, you can do so at 480-565-8680, or you can check us out on our website at www.familylawguys.com.
Today we’ve been talking about divorce basics and child custody basics and how does that work? What’s the law surrounding that? What’s the procedure surrounding that? Before I went to break I just started talking about kind of the major issues that you look at with child stuff and just to reiterate I break it down into three major categories: legal decision making, parenting time, and child support.
Legal decision making is exactly what it sounds like. It’s who gets to make legal decisions about the child. I can tell you that generally speaking in my experience, unless you have what’s called a fitness issue, the courts in Arizona want it to be joint. They want both parents to be involved in decisions related to the child. They want them to discuss it, come to agreements, and if you can’t come to agreements you generally just maintain the status quo, whatever that is.
Now there can be situations where you have, like I said, fitness issues which is essentially where one parent is not fit to parent. That typically is kind of extreme stuff. It can be one of the parents is strung up on meth or has some severe drug problem or alcohol problem or a parent is physically abusive or is engaged in domestic violence or is sexually abusing a child. Something really extreme like that where there’s no reason this parent should be in charge of another human being is kind of the idea. In those situations then the court will generally award sole legal decision making to the stable parent, the one that is fit, and the other parent will not be able to partake in those decisions because again, the presumption is that they’re not fit to do so.
Shelley: Parents also get a lot of support, though. I’d like to point that out. That we have fact court here now and we’ve got … There’s a lot of programs so just because a parent has used some type of illegal drugs or has an alcohol problem does not necessarily preclude them from spending quality time with their kids and the courts will structure supportive environments where parents can rehabilitate.
David: Absolutely.
Shelley: See their kids in a safe manner, even if it’s supervised, a lot of times not.
David: You’re jumping into parenting time.
Shelley: Yeah. Walk them through testing, etc. Lots of support, as well, through the court for parents even when there are issues, so keep that in mind.
David: Yeah. Well, and I generally tell people even if you have a situation where there is a fitness issue and the court makes a finding that there is indeed a fitness problem and sole legal decision making is awarded to the other parent and this person is cut out, that’s not generally a permanent thing. Because typically the courts want to see both parents fit and stable and involved in their children’s lives. A lot of times, like you said, they will structure things to reintegrate the parent. Make sure, for example, if you have a severe drug problem they’ll probably have a schedule that says okay, you’re sole legal decision making until you’ve demonstrated X months of sobriety, or whatever it is. There’s usually some mechanism to get this parent that isn’t fit back into fit and back involved with the kids’ lives because kids need parents and we’ve got abundant research that says the more involved you more, in a healthy way, at least, the more stable and better off the kid is going to be.
Shelley: Right. Maybe the exception to that is the domestic violence.
David: Right.
Shelley: If there’s an act of domestic violence that’s significant, correct? Substantial?
David: Yeah.
Shelley: I can’t ever remember which S word it is. I have to look it up. Basically an act of domestic violence is found to be significant enough, it happens. Especially in front of a child, will preclude joint legal decision making and will automatically kind of throw the divorce into I have to choose one parent over the other to be the legal decision maker and it’s not going to be the perpetrator of domestic violence.
David: Unless both parents are the perpetrators of significant domestic violence.
Shelley: Correct.
David: What the statue actually says. Ignore that presumption.
Shelley: Unless both parents agree that it’s still in the best interest of their children for them to share joint legal decision making and they give a very good defense of why that is in the children’s best interest.
David: Okay. Next major category within the child realm is parenting time. Parenting time is essentially where is the child, when? You can have various parenting plans that look like, for example, week on, week off, where one parent has the child for one week. The other parent has the child for the following week and then you just rotate back and forth. There’s a million variations on this. It could be one parent has the child during the school week, one child has the kid on the weekends. There’s infinite variations. I could talk forever.
The essential idea is that parenting is where is a child, when? Generally is subject to the same basic idea we were talking before about fitness issues. If you have a parent that has demonstrated that they are not fit to care for their child, presumably they shouldn’t just be cut loose with a kid and kind of running around. If you’ve got, for example, a history of using meth and you might throw your kid in a car while you’re high, that could be problematic. A lot of times the courts will do things like impose supervised visitation or completely block the one parent from seeing a child. Again, these extreme situations.
Shelley: And different scheduling or parenting time plans, too, are based on a lot of psychological research and what’s age-appropriate for a child or based on the dynamics between the parents. For example, David just mentioned the week on, week off. That’s generally a better plan for children from a very high-conflict situation so they make less transitions during the week. That would be more appropriate also for a little bit older children.
David: Right. It’s the creation of a parenting plan, there’s an 11 factor test the court looks at, if the court is the one that has to decide. Because generally speaking if the parties can’t agree in trial then the court has to figure it out and it’s extremely subjective based on those 11 factors. The court’s supposed to look at all these things and figure out what the best parenting plan is.
Child support is the third major section of the child issues that we generally look at. I think most people intuitively know what child support is. In theory you’re taking the income of both parents, aggregating it, and trying to redistribute the money so that the child is receiving the maximum benefit of that support. There’s this kind of legal fiction that we have where you’re pretending both parents are still together, whether married or together in just a non-marital relationship, and if that was the situation the child would still be receiving in effect the benefit of both parent’s income. If you have, just to pick a really extreme example to illustrate the point. If you’ve got dad is working minimum wage and has the child 95% of the time and mom is making $150,000 a year but barely ever sees the kid, presumably you should be offsetting that money so that the child is receiving more benefit of the cash because number one, children are expensive and they cost money to do anything with. But the child isn’t receiving the benefit of that income if it’s all shuffled over to one side. That’s the basic theory.
In Arizona we have a support calculator that you plug in everyone’s incomes, major expenses related to the children, and it’ll spit out a number. You also plug it how often each parent has the child in essence and then it spits out a number and generally speaking that’s the number we follow. There’s various reasons we can deviate from it but that’s it in a nutshell.
All right, that’s the core child stuff. I want to talk a bit about some of the major divorce issues we run into on substantive law. Obviously there’s child issues. The major other stuff that we look at are typically property. How do you divide up property assets and debts and spousal maintenance is another big one? Talk briefly about property.
There’s a couple … In Arizona we’re a community property state and we have a couple of different types of property within this community property regime. The very generic idea is if you’re married, everything that’s coming in is part of this community estate. Everyone that is married has a half interest in their community estates.
Shelley: You mean all the money isn’t my money?
David: That is correct. If you earn some money during the marriage, with a few exceptions, then generally speaking your spouse is entitled to half of that money. The counterpoint to this is the separate property. So stuff that’s earned prior to marriage and stuff that is earned after the trigger point on the end side, the service of a petition assuming that the petition culminates in a divorce. Anything outside of those parameters is separate property and there’s a couple other things, like if you receive something by inheritance during the marriage then as long as you didn’t commingle it to the point where you can’t recognize it anymore it’s also separate property.
Sounds simple enough in a vacuum. I think most people intuitively know what it is. The scenarios where I see some confusion about is when you have something that is classified as separate property but the community has an interest in it, nonetheless. For example here’s a really common one. One of the parties has a house, buys the house before the marriage. There’s a mortgage on the house. Parties get married. One of the parties earns a paycheck. That paycheck is acquired during the marriage and is therefore community property. They take that paycheck and pay down the mortgage on the house, thereby increasing the equity, causing growth in the value of the property, and reducing the principle balance on the house.
In essence, you’ve mixed up the community asset of the paycheck with the separate property of the house and the result is what we call a community lien, which in effect means the community itself has an interest in this house because of all the stuff it was dumping into the house. It’s not a half-interest. That is to say, it’s not a half-interest in whatever the house is and Arizona has an ugly calculation they like to use to figure out what it is. We always kind of roll our eyes every time we have to calculate it, but it’s not a half interest that you’d be getting out as the other party. It’s a half interest of the community lien but not of the asset itself. So it can be more complicated than just separate versus community, but in a vacuum basic idea is what you get in community is half-interest, outside of the marriage is separate property.
All right. We’re going to take another quick break. I’m attorney David Enevoldsen joined by co-host Shelley Rosas. You are tuned into Family Law Report on Independent Talk 1100 KFNX.
Speaker 10: Family Law Report is hosted by Family Law Guys, an Arizona family law firm. Family Law Report is dedicated to confronting difficult issues related to marriage, divorce and children. This can range everywhere from addressing the legalities and controversies of topics like gay marriage to current problems in the divorce system, to simply providing tips to those getting married or going through a divorce or custody fight. Tune into every Sunday to family law report at noon here on KFNX.
If you want to know more or to schedule an appointment with David or another one of the Family Law Guys attorneys call 480-565-8680. That’s 480-565-8680.
David: Welcome back to Family Law Report. I’m David Enevoldsen, your host, attorney with the Family Law Guys, an Arizona law firm, here with you every Sunday at noon on Independent Talk 1100 KFNX. Joined today by my co-host Shelley Rosas who works for my firm as well. If you want to reach out and schedule an appointment with us you can do so at 480-565-8680 or you can check us out on our website at www.familylawguys.com.
Today we’ve been talking about basics of custody and divorce cases. How those work, what the underlying law is, what the essential procedure is. Right before we went to break we had just talked about property division. Essentially how do you deal with the assets? Community property versus separate property. We talked about the property component. One thing I didn’t mention is that debts work in very much the same way. That is to say that a debt is either deemed, general speaking, community in nature or separate in nature. If you walk into a marriage and you’ve already got this debt, generally it is the separate obligation of the spouse that came into the marriage with it. Conversely, if you acquire a debt during the marriage then, presumably, both of you have an equal liability for that.
There is one scenario I can think of that you generally will offset it. The judges have the discretion to do this or not if the argument is raised, and that is what’s called Community Waste. For example, if I go out and run up five grand, 10 grand. Let’s say 10 grand. Say I go up and run up 10 grand on a credit card and, generally speaking, my spouse is going to be liable for that, assuming it’s in a marriage. However, if I do something that is patently wasteful. My class example of this is let’s say I married … Shelley and I are married and I say, “Hey Shelley, I’ve got to go on a business trip,” and then I go off the Vegas and I take my mistress and then I buy my mistress a nice necklace and I spend a bunch of money at the hotel with her and we have lavish dinners and all that.
I ran up that same 10 grand on the credit card and then Shelley finds out about it and then we get into a divorce then all of the sudden she can come back to the court and say, “David went in and he just completely wasted all of these community funds. He threw 10 grand of our money out the door for just basically his mistress. That’s not fair.” The court has the ability to come in and say, “Okay, we’re going to offset David’s share. He’s not just going to have this like half liability,” that he might get all of it or you might offset it in some other assets so that because I’m just going out and wasting community funds on something Shelley’s not getting screwed over in a sense by my wasteful activity.
Shelley: I was going to say. I already pretty much did at that point.
David: It was a good trip to Vegas.
Shelley: I want my money back, though.
David: Another major issue that pops up in divorce is spousal maintenance. That’s the term that we use in Arizona. More colloquially what people typically look at it as is alimony. That’s the term that most people know. Basic idea is you’re supporting your spouse after the divorce for … It can be a couple different reasons. One is if you put … The spouse doesn’t have any resources and they’re caring for a very, very young child and they just don’t have the ability to go out and get a job. Sometimes there’s an expectation that you support them and that goes over and above the child support distribution. It’s this, you need to get this person to a point where they don’t have to be stuck at home and can’t possibly work.
Another scenario is if that was essentially you have a long-term relationship and that was the expectation that was created and you need to get somebody back on their feet. Classic example in my mind is you’ve got an 80-year-old housewife that hasn’t worked since she was 20 because she was at home doing all the housekeeping and sort of a traditional 1950’s nuclear family style, and then the parties divorce and she doesn’t have the about to just run out and grab a job and support herself. So spousal maintenance could be awarded in that situation.
The other major one we see is one of the spouses puts the other one through college. Using Shelley and myself again, say we’re married and then Shelley worked while I went to law school and then I was like, “See you. Now that I got my law degree I’m out of here.” I could presumably be paying her back in a sense for that. Not paying back per se, but she could be getting some sort of receipt of maintenance going forward to accommodate for the fact that she put me through school and put me where I am and she shouldn’t just get thrown out in the cold because of that.
Procedural stuff. Let me just quickly hit how the procedure works. I see Josh laughing. What are you … You got to explain that?
Josh: Oh, sorry. It was something external.
David: Oh, nevermind. The procedural stuff, the way that a divorce process works. Conceptually it’s kind of simple on the broad brush end. What happens is somebody files what’s called a petition with the court and the petition is what kicks off the case. In essence it’s you going to the court and saying, “Hey, court. I want the a divorce and here’s all the stuff that I want to have happen. Here’s the property division I want. I want you to issue custody orders.” That sort of thing.
From there, the next phase is what’s called service because you have to serve your spouse. It’s kind of like you’re suing your spouse in essence. If you were going to do any other sort of other lawsuit you would have to hire process servers. There’s a couple other ways you can effectuate service, but the basic idea is your spouse has to be on notice. They have to know what’s going on and know that there’s a divorce process happening, their rights are being affected, that sort of thing.
From service there are essentially three major pathways that the case can go. One is by default, another is by consent, and a third one is by trial. This is a bit of an oversimplification but this is the basic idea. Pathway number one, default. Other party gets served. You’ve gone to the court and said, “Here’s all the stuff I want, court.” The party that was served says absolutely nothing. They just ignore it and the court eventually will say, on your prompting, “Okay, well the other party knows what’s going on. They’re ignoring it, so we’re just going to proceed on assuming that they’re fine with it because they haven’t come in and objected to anything.” So generally speaking with, again, certain exceptions, the court will just give you whatever it is you ask for in your petition in that scenario.
Pathway two is by consent. In consent it’s similar in that the court essentially just grants what’s asked for without having to go through some big fight, but in the consent scenario both parties come together. The other party, after being served, does show up and say, “You know what, I acknowledge there’s a divorce going on but I agree. We’re going to come to an agreement about how things are going to happen. We’re going to agree to child issues or property division or whatever it is.” Then you submit your agreement to the court and the court signs off on it.
If you can’t do one of those two pathways the alternative is the court has to figure out the dispute. If there’s a dispute on any of the issues leading up to the divorce, it culminates in a trial. And at the trial both parties present their positions on whatever the disputed issues are and the judge issues an order and says, “Here. Here’s what’s going to happen.” Generally speaking, if you can agree to things and you can keep things in your control you are way better off than going to trial where, particularly with things like child issues where you have subjective components of it and you never know exactly what’s going to happen when you walk in there. It’s much better to kind of take control of that in some way and to come to an agreement, if it’s reasonable.
Now sometimes the other party is being absolutely, patently unreasonable and giving you options that just don’t make sense and in those scenarios it makes sense to go to trial. Every case is going to be very different. I definitely think you need to take a look at the situation and if it’s possible to come to an agreement with something that is livable that’s generally better.
A couple of things. When you’re going through this process in the middle of a divorce case you have what’s called discovery and disclosure. In the pathway leading up to a trial the parties have the opportunity to go out and gather information, so for example in our scenario earlier if Shelley found out that I went to Vegas and maybe it wasn’t a business trip she’d have this opportunity to go hunt down information to prove that I had gone and wasted all sorts of money on my mistress. She can issue things like documents called request for production which is something where you send it to the other side and ask them for documents. She can issue subpoenas. That’s stuff that you send out to third parties like a bank or some other institution where you’re saying, “Give me these records.”
You can do things called interrogatories where you send the other side questions. All of this has to be complied with, generally speaking. Again, some exceptions here but you have to disclose information. You have to hand over information that you could potentially use at trial or could potentially be relevant to this case.
Prior to trial there’s this kind of massive fact-finding effort that goes on and everybody has to disclose what’s going on so there’s no surprises, at least in theory. What’s your thought?
Shelley: Just this massive exchange of information.
David: At least there should be. Sometimes there isn’t. The other side goes nah.
Shelley: Sometimes there’s nothing and sometimes there’s so much.
David: If there’s nothing you can typically go back to the court and ask the court and just say, “Hey, court. This other party is not playing ball. Make them play ball.”
One more quick thing. We’re getting near the end of the show here. One other major thing that you can deal with is you can have, even after your divorce decree is entered or your child custody is entered, the court in some situations can retain jurisdiction to come back and modify stuff, particularly with child issues. So if you have child issues things change, so you can have an order enter and when the child’s an infant and then five years later you’re in a totally different situation. 10 years later you’re in school, parties have moved around. You can always come back and do modifications. The process is very similar. You come back and file a petition to change things. You’re going to go through the same basic steps, default, consent, or end up in a trial. That is the life of your divorce case.
That’s about all the time we have for today’s show. You have been listening to Family Law Report. I am your host David Enevoldsen, an attorney with Family Law Guys, an Arizona law firm. I’ve also had with me my co-host, Shelley Rosas. We’ve been talking about the basics of divorce and custody actions. I hope you join us again next week on Sunday at noon for more of the latest on family law here on Independent Talk 1100 KFNX. If you want to reach out to our firm you can do so at www.famillawguys.com or you can call us at 480-565-8680. Thank you all for listening.
Speaker 10: Family Law Report is hosted by Family Law Guys, an Arizona family law firm. Family Law Report is dedicated to confronting difficult issues related to marriage, divorce, and children. This can range everywhere from addressing the legalities and controversies of topics like gay marriage, to current problems in the divorce system, to simply providing tips to those getting married or going through a divorce or custody fight. Tune in every Sunday to Family Law Report here on KFNX.
If you want to know more or other schedule an appointment with David or another one of the Family Law Guys attorneys call 480-565-8680. That’s 480-565-8680.