Show Topic
This show aired on June 25, 2017. It was hosted by David Enevoldsen and co-hosted by Shelley Rosas, an associate with Family Law Guys. The two discussed representing yourself in court and the importance of taking reasonable positions and analyzing your position objectively through use of another level-headed party. They also discussed the importance of understanding the procedural aspects of your family law cases. Note that this topic was continued as a part two on the show from July 2, 2017.
Headlines
Headlines on this show looked at the Turner v. Oakley opinion from the Arizona Court of Appeals dealing with interpretation of the paternity statute in Arizona and whether or not it conferred paternity rights in lesbian marriages and the fact that it conflicts with another Arizona Court of Appeals decision in the case of McLaughlin v. McLaughlin, and the European Court of Human Rights in Strasbourg’s ruling finding that the Russian gay propaganda law which criminalizes exposing children to any statements regarding homosexuality was unlawful.
Did You Know
This show’s Did You Know looked at criminal conversation and alienation of affection, their history of creating a civil cause of action related to someone having intercourse with a married person or destroying the love in a marriage, and their general disapproval in the law. Arizona has abolished the causes, but there are still a small handful of states that embrace it.
Transcript of Show
Speaker 5: 1100 KFNX. The discussion 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 can vary from what is presented here and you should seek the advice of an attorney licensed to practice in your state.
Speaker 6: Welcome to the Family Law Report, the show that explores issues related to marriage, divorce and children, hosted by David Enevoldsen, a privacy family law attorney in Arizona. Now here's your host.
David Enevoldsen: Hello everybody and welcome to Family Law Report. I am your host David Enevoldsen, here with you every Sunday at noon on Independent Talk 1100 KFNX. Here on Family Law report we talk about all the current topics of family law, and that can range from what's going on in the political arena to just basic stuff like how to work through the nuts and bolts of a divorce.
I am a practicing attorney, I work in the area of family law of course, and when I say family law I mean anything related to marriage, divorce, fights over custody of children, prenuptial agreements, postnuptial agreements, child support issues, anything like that. I am a partner at a law firm here in Arizona, called the Family Law Guys, and we focus principally on helping divorcing parents avoid getting screwed out of time with their children.
We have offices in the Phoenix area, and we don't, while we don't practice outside of Arizona, if you want to call us and schedule an appointment to talk about your case you can do so by calling 480-565-8680, or you can check us out on our website at www.familylawguys.com. On today's show we are going to be talking about one of those nuts and bolts basic type things, and if you've got a hearing coming up, or any sort of family court proceeding, especially if your representing yourself, this is a good one for you.
We're going to be talking about how to represent yourself in a family court proceeding. I am joined today by my co-host, Shelley Rosas, and Shelley works for the same firm as myself. Shelley thanks for coming.
Shelley Rosas: Good afternoon.
David Enevoldsen: She said, good afternoon again.
Shelley Rosas: I did.
David Enevoldsen: We've got you trained now, you're not saying good morning any more. Awesome. All right, before we get into our actual topic though we're going to do our Headlines and then we're going to do our Did you Know. In our Headlines we always look at what's been going on the family law universe, just current news, and there's actually some really interesting stuff, in my opinion, that's been going on this week.
First off, there's a couple of different court opinions that came out this week that I found fascinating and its been, we haven't really heard anything on the homosexuality fight, legal front in quite a while, and it seemed like all of a sudden there was some more stuff popping up in the news. That's our first article, and the second article is all about some homosexual issues.
What happened was, if you listened to the show last week, I made a comment when we were discussing the non-binary issues that's been hitting the press, that very often when you change legislation, or change a social ideal, and then that turns into either case law or legislation, it takes a while to ripple out into all these ancillary places in the law, because there's just lots of stuff that has to change.
We have a whole legal system wrapped up in this idea that things are a certain way, and then when you go and fundamentally change that, when you have stuff like gay marriage or freeing slaves or saying that black people are equal to white people and shouldn't be segregated into different schools, anything where you have a major fundamental change like that, it takes a while to ripple through the system and change, update all the little laws that are all over the place.
Well here we've got a great example of that in the homosexual universe. Now, whether you are on the side of homosexual marriage should not be allowed or should be allowed, the US Supreme Court, as I'm sure everyone remembers, has made the ruling that it is recognized as a fundamental constitutional right that homosexual people or same sex people have the right to marry.
Well that is rippling out as we speak, into various areas of law and this first article is one example of that. What happened was, a Division One ... Let me give you a little background to this, there's, when you have a court system there's a couple of different types of courts that you can run through at the state level.
First there's the trial court, where you go in and make basic arguments, and then you have the Arizona Court of Appeals, which is the intermediate appellate court, they review the trial court to see if there was any errors and stuff that was done, and then there's errors in the Supreme Court, which I guess is another level above that, just to keep it simple.
Now Division One one, we have two divisions of the Court of Appeals in Arizona, there's Division One and Division Two. Division One is in the Phoenix area, Division Two is in Tuscon. If there's usually some issue it can go up to either one of those, if either side, if either one of those two divisions creates a ruling then that becomes binding on everybody else.
If the Arizona Supreme Court issues a ruling then that becomes, that trumps whatever the Arizona Court of Appeals have. Well, we have a split in opinion right now, related to this whole homosexual marriage impact that I've been talking about. A recent case called Turner v Oakley, and in this case there was Turner and Oakley, they were a same sex couple, both women, they were in this long-term relationship and back in 2013 they started attempting to conceive a child through artificial insemination.
Then in 2014 they got married, and Turner, one of the two women, carried the child. Now at that time there was no formal written agreement, there was nothing expressly said about who was going to have parenting roles or rights, with the exception of the fact that there was a will by Turner, saying that if she was going to die she wanted Oakley to get full custody of the child.
Well the baby was born in 2015, and then Oakley, the one who didn't carry the child, was listed on the birth certificate in the section where it said father. Of course it was two women, right, which is another example of this, we have to change things to fit everything, because birth certificates very often just say, mom and dad. Well Oakley was present at the birth and even cut the umbilical cord, so she's on the birth certificate she cut the umbilical cord, she was there at the time of the birth, she was on the will from Turner, saying that she would have full custody.
Then, as very often happens in these, it seems like all the time, in May of 2016, Turner files for divorce, the relationship falls apart. Well they go in and the trial court made a finding that because they were married at the time of the birth, Oakley had parental rights, because this is always ... There's a statute in Arizona that's ARS 25-814, and it interestingly describes paternity, which was one of the issues that popped up in this opinion that just came out.
I'll read to you the relevant part of it, it says, "A man is presumed to be the father of the child if he and the mother of the child were married at any time in the 10 months immediately preceding the birth." Now keep in mind that the statute was written before this Obergefell decision in which the US Supreme Court said, "Marriage is this fundamental constitutional right" was issued, and so they weren't even contemplating this idea, because Arizona didn't even recognize gay marriage until Obergefell when they basically had to.
This statute was written back then, so it's not even contemplating the idea that you could have same sex partners here. The argument became, do you get that in a same sex situation? Does the statute apply even though it's saying specifically a man is presumed to be the father. The argument was, does that also apply to a woman in a same sex relationship, or is it only a man?
Well, the matter was appealed up to Division One of the Court of Appeals, and Division One said, "Basically no, this is only going to apply to men. That's what the statute says." Part of the reason that I think this is so fascinating, as I said a few minutes ago, we've now got a split in the two divisions. Because Division Two, the division down in Tucson, very recently had an almost identical situation, and in October of 2015 they issued an opinion which came to the exact opposite conclusion.
In that case it was McLaughlin v McLaughlin, there the court found that the statute does apply to same sex situations, and that a female spouse gets to be interpreted as having that same parental inference. Just because they're saying that Obergefell decision from the US Supreme Court has to be interpreted in a gender neutral way and therefore it applies.
In fact, the other interesting part, the trial court in the first that we were talking about here, the Oakley and Turner one, the Division One case, was relying on the opinion from the Division Two case when it said ... It actually changed position, because originally the trial court said, "No, this doesn't apply because it clearly just says father."
In the midst of that case, the Division Two opinion came out and then the Trial Court said, "Oh well, then we have to follow that" so changed gears, and then that got appealed to Division One, and now we've got the circus place. A long story short, we've got ... This ruling in a vacuum is obviously bad for the gay rights movement, and for equality and homosexual marriage, that sort of thing, however, it's up in the air in terms of what's going to happen, because it's got to be decided by the Arizona Supreme Court, and it's my understanding that they're going to hear that, so ...
Shelley Rosas: I was going to say, that's got to be going up very soon ...
David Enevoldsen: Yeah, it has to.
Shelley Rosas: Yeah, I'm looking forward to it.
David Enevoldsen: It's going to be very interesting, and ...
Shelley Rosas: I already know how it's going to turn out ...
David Enevoldsen: Well I'm having a hard time seeing how it doesn't come out as ... I read through the Division One opinion, saying that it only applied to fathers, and I ...
Shelley Rosas: No way.
David Enevoldsen: I really struggled with that, because I don't know how that doesn't ... I'm not a constitution scholar, but I'm not really clear on how ...
Shelley Rosas: I did too, there's ... Because like you said, that when that was written they didn't contemplate the current law of the land.
David Enevoldsen: Right.
Shelley Rosas: Now we have to take that into consideration.
David Enevoldsen: They were expressly talking about Obergefell in this opinion, so they were every aware of it and they basically said that doesn't override the exiting law. Which is just believe ...
Shelley Rosas: I don't get that.
David Enevoldsen: I don't either, I was struggling with that. I'm not really sure how the Arizona Supreme Court could possibly come out differently than that, but ...
Shelley Rosas: It's going to be interesting in Arizona though, given our history. We'll see what the Supreme Court ...
David Enevoldsen: Well yeah, and obviously Arizona has got a more conservative history with everything, and I mean clearly you're seeing some of that I think in effect, and in terms of the Division One opinion here. I don't know, we'll see where it gets talked about.
Shelley Rosas: Yeah, it may go all the way up to the Supreme Court.
David Enevoldsen: The US Supreme Court. Well ...
Shelley Rosas: It very well might.
David Enevoldsen: It could. Yeah, I mean because this has a federal constitutional implication, built into it. All right, we're going to take a quick break. I am attorney David Enevoldsen, I'm joined by my co-host Shelley Rosas, and when we return we're going to be talking about representing ... We're going to do a Did You Know and then we're going to talk about representing yourself in a family court proceeding.
If you want to call in and ask any questions, you can do so by calling 602-277-KFNX. You are tuned into the Family Law Report on Independent Talk 1100 KFNX.
Speaker 6: The Family Law Report is hosted by family Law Guys, an Arizona family law firm. Family Law Report is dedicated to confronting difficult issues relating 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 The 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 Enevoldsen: Welcome back to The Family Law Report, I am your host David Enevoldsen, attorney at Family Law Guys, an Arizona law firm, here with you every Sunday at noon on Independent Talk 1100 KFNX. I'm joined today by my co-host Shelley Rosas, and if you want to call our firm, Family Law Guys, you can do so by calling 480-565-8680, or you can check us out on our website at www.familylawguys.com.
If you're listening and you want to call in and ask any questions, or share thoughts, you can do so by calling 602-277-KFNX and today we're going to be talking about representing yourself in a family court proceeding. Before we get there I want to do Did You Know, and before do that I want to hit one more quick Headline, which I ran out of time on the last segment there.
Just because there's one more really interesting thing, I said that there was a couple of issues related to the homosexual rights legality issues that have been popping up in the press, and there's one more story I found very fascinating. On Tuesday the European Court of Human Rights in Strasbourg France, issued a ruling that was quite interesting on this whole thing. It dealt with the gay propaganda law of Russia.
Russian law basically has a law that prevents people issuing propaganda of non-traditional sexual relations around minors. Basically making it illegal for you to go out and promote homosexuality in an area where minors could see that. The basic position in Russia is that the law is important to protect children from the influence of homosexuality.
Well there were three guys, Nikolay Bayev, Aleksey Kiselev and Nikolay Alekseyev, they were engaged in a protest between 2009 and 2012. They were going out in various places holding up banners and basically saying that they were promoting homosexuality being normal. They were saying it's okay, this is normal, and of course no-one there liked it because, again as I've said before, in the rest of the world there are very, very different cultures and viewpoints around homosexuality.
It's becoming more and more accepted in the US, but that's not the case everywhere. Well these three were arrested for a violation of the statute, which is criminal in nature there I guess. Then this was later taken up to this European court, the European court just basically attacked Russia, saying that the law was discriminatory, it was homophobic, it violates the European Convention on Human Rights.
Under this International Court's ruling, Russia was ordered to pay approximately, as I understand it, €43,000 plus costs, which amounted to about €49,000 in damages to these guys, in US dollars equivalent it's my understanding that that is about $55,000. However, the interesting thing about this is, under Russian law, Russia sits down and makes the decision as to whether or not they're going to comply with the rulings issued by an international court.
I don't know if this is ultimately going to be binding on Russia or not, but it was pretty fascinating as one more piece of this whole gay rights movement I think, and the battle over all of that. Also interestingly, and this is all coming in the midst of controversy mounting anti-homosexual tensions in Russia, so okay, that's all I'll do on the Headlines, I just had to hit that last one, because I thought it was super interesting and continues this theme of court stuff that was hitting this week on the gay rights issue.
Right, jumping over to Did You Know. The thing I was going to talk about today, and Did You Know is the segment of the show where we talk about basically something interesting about family law. It can be some little piece of trivia, some vestigial thing from the past. It can be some statistics. Sometimes we do a quiz. It can be a range of things.
Today I wanted to talk about the causes of action of criminal conversation and alienation of affection. These I found ... Are you familiar with these?
Shelley Rosas: Yes.
David Enevoldsen: I find them ... What's that?
Shelley Rosas: I'm chuckling.
David Enevoldsen: I find them very interesting. They ... Historically there were these causes of action called criminal conversation and alienation of affection. Now they're slightly different, but inter-related. Criminal conversation basically requires that you come in and you can file a civil suit if there was situation where there was a marriage, somebody in the marriage sleeps with a person that is not in the marriage, and ...
Shelley Rosas: That never happens. We never hear about it in our line.
David Enevoldsen: That's pretty much it, right. Now in this particular cause of action there's a defense to say that the married couple was separated at the time of the act, now keep in mind this is, the law varies a little bit from state to state, so there are always some variations, but this is is generic rule. At the same time you've got alienation of affection. Alienation of affection requires that there was love between spouses in a marriage, so they actually cared about each other.
The spousal love was destroyed and the reason was some paramour, the third party that came in and took away the love from the first party. When you have this situation, basically somebody cheats and sleeps with somebody outside of the marriage, and or there was love between the two spouses and some paramour or third party comes in and snags that love away and destroys it between the spouses, the wronged spouse could turn around and sue the paramour.
It used to be that this was the case all the time, that there would be civil suits. Currently there are six states in the US that allow, still allow an alienation of affections cause of action and this, the criminal conversation cause of action. Those specifically are Hawaii, Mississippi, New Mexico, North Carolina, South Dakota and Utah.
Shelley Rosas: Wow.
David Enevoldsen: Now most states, I know, and these are still out there.
Shelley Rosas: Wow.
David Enevoldsen: Most states have gotten rid of that or expressly abolished it. In fact Illinois, up until last year, recognized it and then just got rid of it. It was seven and now we're down to six and it seems to be slowly chipping away.
Shelley Rosas: Is it off our books, or do we just not recognize it?
David Enevoldsen: Well that's where I was going right now, so ...
Shelley Rosas: Yeah, I was going to say, because I believe I still ... I looked into this last year ...
David Enevoldsen: Well, and there is expressly discussion of this in the Arizona statutes, and that is, if you care about the numbers, ARS 25-341, which expressly ... And this is what is interesting to me about it, it expressly abolishes the alienation of affection cause of action. It flat out says, that cause of action, it does not exist any more in Arizona.
Shelley Rosas: You can't go after the third party.
David Enevoldsen: Correct.
Shelley Rosas: Right.
David Enevoldsen: You can't go and sue ... Now of course in a, as we know, in a divorce case there's one sort of exception where you have the least argument if you were ... Normally you'd have community of property split when you're dividing up assets, but if you have a situation where somebody's just throwing money at some mistress or something, that I run to Vegas and I spend tens of thousands of dollars, paying for the trip with my mistress and paying for jewelry to give to here, theoretically I could come back and offset some of that money in the divorce, and split that up.
At any rate, we don't look at the alienation of affection cause of action, where you could, the injured spouse in essence could sue the third party who was sleeping with your spouse. However, the interesting thing about this is everyone I've talked to, and stuff I was reading about, the presumption is that this statute that says alienation of affection, which seemed to always go hand in hand with the criminal conversation thing, wipes out the criminal conversation.
I couldn't find anything, anywhere that actually expressly says criminal conversation is no longer a cause of action. I didn't see anything that wipes that out, I just see something that talks about alienation of affection being abolished. Now everybody, like I said, everybody I've talked to seems to think that they are both wiped out, and that you can't recover on either of these. I personally have never seen in Arizona, that I've worked on anyway, since I've been working in the law, any cause of action for either of these things.
Similarly, there is a statute ... This isn't exactly the same thing, but Arizona has on the books, still a valid statute that talks about adultery being a criminal act. This isn't a civil cause of action, but this is something where you could be prosecuted as a class three misdemeanor, it's ARS 13-1408, and it basically says that if a married person has an affair, they can be prosecuted for this criminal case, and the paramour can be prosecuted too.
It's all very interesting to me, and one of the other interesting points that you could have is that if somebody, I think, was having an affair in one of these other jurisdictions, and bouncing back and forth between Arizona and here, maybe Arizona has the jurisdiction over the divorce or something, but you might have been with a paramour in say North Carolina or some place where they still recognize it. You could still conceivably bring one of these actions in this other state.
Anyway, I found this all quite interesting, this was our Did You Know, is talking about criminal conversation and alienation of affection. The fact that you could previously, and in some places still, bring a cause of action for somebody cheating, and you can attack the third party for taking away the love or simply sleeping with your significant other. I find this really interesting in terms of the changes in perspective, the societal changes in perspective, and the constantly shifting perspectives on blame.
That we were talking for a few minutes about the homosexual marriage issues, and our perceptions on how people are wronged and all that sort of thing. Here is an interesting evolution in our perceptions of values, where we're saying in essence that it's becoming more and more acceptable I think, to have an affair.
We're not going to persecute somebody that's engaged in that in various ways, there's criminal statute that makes it criminal to commit adultery. I've never even heard of that being prosecuted in Arizona, during my lifetime, at least not that I'm aware of. Anyway, that is our Did You Know. All right, we're going to take another quick break, and I am attorney David Enevoldsen joined by my co-host Shelley Rosas.
When we return we will be talking about representing yourself in a family court proceeding, like I said for the third time. If you want to call in and ask any questions you can do so by calling 602-277-KFNX, and you are tuned into Family Law Report on Independent talk 1100 KFNX.
Speaker 6: Family Law Report is dedicated to confronting difficult issues relating 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 the 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 Enevoldsen: Welcome back to The Family Law Report, I am your host David Enevoldsen, an attorney with Family Law Guys, an Arizona law firm, here with you every Sunday at noon on Independent Talk 1100 KFNX. I'm joined today by my co-host Shelley Rosas, and if you want to reach out to schedule an appointment or speak with our firm, you can do so by calling 480-565-8680, or you can check us out on our website at www.familylawguys.com.
If you're listening and you want to call in and ask any questions, or share thoughts, you can do so by calling 602-277-KFNX and today we're going to be talking about representing yourself in a family court proceeding.
Now this topic is going to apply to any family court proceeding, and frankly probably some civil proceedings as well, or various other types of court cases. I think the first thing that I want point out here is to look at the position you're taking very objectively. Because what's going to happen, if you're going to court there's a conflict of some sort.
You're walking in and you disagree with somebody about something, it's either how you're dividing up the assets or how the parenting plan is going to work, or who's getting to see the children when, or what's going to happen with their schooling. Or whatever it is, there's some sort of a dispute.
One of the things that I see more often than anything else, is somebody walks in and they have a ... Whatever their position is, because obviously there's two different conflicting positions here, and they come in and their position doesn't make any sense.
It's something that they've convinced themselves of, and I have heard, I cannot count the number of times I have heard from someone, where they walk in to me and they say, "I cannot even comprehend how a judge couldn't rule in my favor and give me exactly what I'm asking for, because look at all these things that the other side has done. He or she is crazy, and there's no conceivable way that they could rule against me."
Here's what happens though, you are ... Very often people will create this self-reinforcing narrative, they will tell themselves a story, they will tell their friends around them this story, everybody's going to agree with them. They'll do the voice ... I've talked about the voice before, that's where you regurgitate something that somebody's said, but you spin it in a way that is horrible. You're going to be like, "Well he came up to me, he was like, mah, mah, mah." Or she said this and she was like, "Oh I hate you."
You spin it in this way that makes it sound better for you. Your friends are going to self-reinforcing. They're going to agree with you just by default. Then you walk in and the other side is saying the exact opposite thing from you. The judge might have a slightly different perspective on things, and all of a sudden you've got a ruling that is not exactly what you thought it was when you walked in, thinking there's no conceivable way that someone could rule against me.
My point of all this is, it is incredibly important I think, before you're going to go to all the trouble of going through a court proceeding, going and litigating something, preparing for hearings, taking this risk of going in front of a judge that's just not going to see things the way you are potentially.
Shelley Rosas: Or always.
David Enevoldsen: Yeah, well always.
Shelley Rosas: You've got his side, her side, or her side, her side, you've got side A, side B and then you've got the judge.
David Enevoldsen: Right.
Shelley Rosas: The judge never come down [crosstalk 00:33:56]
David Enevoldsen: Before you're going to go to all this trouble, my position on this is, before you do anything else, take a look at very specifically what is your position. What is the position you are asserting in court, and is that thing reasonable? It is hard to do that independently in a vacuum. You need to go find somebody else to help you with that, and when I say someone else to help you with that, it's not the good buddy that you've been venting to and telling about how horrible your ex is, because that person is already bias towards you.
You need to sit down and have a serious objective perspective on this, to make sure that you are not doing something crazy. That can be somebody that's somewhat detached from the whole thing, or that could be something as simple as go pay ... Even if you can't afford an attorney, if you don't have the funds to go get an attorney for whatever reason, or you're choosing not to hire an attorney, maybe pay just for some time from the attorney to sit down and say, "Look here's my position on this, is this reasonable?"
Shelley Rosas: Right, reasonableness I think is what you hit. That is going to be an issue too for attorney fees, so if you're representing yourself and you've got an attorney on the other side of you, you don't get a break just because you're representing yourself.
David Enevoldsen: Absolutely.
Shelley Rosas: The judge is going to treat you and hold you to the standard that he holds the attorney to on the other side. Reasonableness is, or unreasonableness is a reason to assign you as a self-represented party, the other side's legal fees. You may end up paying the other lawyer.
David Enevoldsen: Absolutely.
Shelley Rosas: If you take an unreasonable position. We see this in our practice all the time.
David Enevoldsen: Now it's 10 times worse than if you had just settled something or changed your perspective or anything else. Because now, not only did you go through all the stress and hassle and irritation and time it takes to go through and litigate something, but now all of a sudden you've got a judge telling you you've been unreasonable, which is emotionally very taxing on people, and you're going to be paying them.
Shelley Rosas: It can affect you legally in the future. Once you have a finding of unreasonableness, the judge is going to review the records the next time an issue comes up and ...
David Enevoldsen: That's a whole other issue.
Shelley Rosas: The next time.
David Enevoldsen: That's right.
Shelley Rosas: If you have been unreasonable in the past, or been found in contempt of court in the past, those two things are going to come forward in the judge's head into current decisions. Even though they may not say they're relying on them, how do you overlook that?
David Enevoldsen: Right, so this ... I feel like this should precede everything, when you're walking into some sort of litigation, whether you're self-represented or you've got an attorney or anything. Find a way to create a really objective analysis of your perspective, and make a decision as to whether or not this thing that you're fighting over, or these issues that you're fighting over really makes sense. Not just because you feel emotional about it, but because they objectively make sense from someone else's perspective, and not your best friend who already hates the other side.
Shelley Rosas: Remember too, that you're the emotionally connected party, so everything you look at, when you get a judge's ruling, and you're going to read that ruling. You're going to read it from the scaffold or the perspective of the emotionality that you bring to the case. When a third party reads it, for example if a client hypothetically thinking brings me a ruling and has me read it. I look at it, I give them feedback on it, it's completely different than what they see often times.
David Enevoldsen: Oh yeah.
Shelley Rosas: I was just explaining to someone this week, that I don't see any blame being assigned in this ruling whatsoever. There's no blame here from the judge on either party, and ....
David Enevoldsen: They may read into that a lot of ... [crosstalk 00:37:20]
Shelley Rosas: Other people are reading a lot of blame in there. Why am I being punished? Why is there so much blame? Why am I being blamed? I didn't see any punishment or blame whatsoever. Not at all, but that person just brings all that emotionality with them. It's hard to be objective in your own case. Remember that because you can adjust for it.
David Enevoldsen: Like I said before, and this could be something as simple as just go pay an attorney, even if you're not hiring them, because you don't have the funds for the full case, pay them for an hour of time, to sit down and talk through the issues and get an objective perspective with some legal slant on it. Usually you can do that for a couple of hundred bucks.
Shelley Rosas: Actually, listen, there's a T-shirt out there that says, if all else fails, do what your attorney advised you of the first time. I chuckle every time I see that, because I can't tell you how often I see people out of emotion in family law, dig their hole deeper, and they come in, and they'll pay us by the hour for just to give them some feedback, but they really don't want to hear our feedback. It's like they're just really looking to be affirmed by their best friend.
We're not best friends as attorneys, but you really need to listen to someone when you go to get an objective opinion. You may not be hearing everything you want to hear, but you may be hearing what the judge is going to see. Whether that's reality or not, that's what the judge is going to see, and how he's going to make his decision.
David Enevoldsen: Or it's more likely to be what the judge is going to see, because you don't know 100% what the judge is going to see, which is another reason why I'm saying, you should do everything you can to settle if you've got anything remotely reasonable as a settlement offer. Even if you've giving up a little bit, because when you walk into a courtroom the judge is ... There's a lot of subjectivity in family law, and the judge can have some very different background and perspective could ultimately issue a ruling.
I've seen many a time, I've walked in as an attorney, having done quite a few of these cases, and I walk in and I think, "This is the only way this is going to come out." Then the judge issues a ruling that is just not at all like I was ... [crosstalk 00:39:09]
Shelley Rosas: We've been very surprised by ruling as of late.
David Enevoldsen: Yeah, well I mean just generally. Anyway, I don't want to beat a dead horse, and I want to hit some other issues here, but the underlying point is really, really check yourself on the position, because this underscores everything. Everything else you're going to do, especially if you're representing yourself, because if you have an attorney, they are already coming in with a somewhat detached perspective, they are not as emotionally invested in your case.
If you are on your own, you have to check ... Especially if the other side has an attorney and you don't, you've got to check yourself.
Shelley Rosas: Because you're at risk for the other side ...
David Enevoldsen: Before you wreck yourself. I just said that.
Shelley Rosas: I know, but I'm just reinforcing that, because people are always so shocked. "I couldn't even afford ..."
David Enevoldsen: No, no, no, I said check yourself before you wreck yourself. You told me that sort of thing. I said I totally said that. I haven't heard that phrase in forever. Anyway all right, let's jump onto another part of ... Getting into some more technical stuff now, one of the things that I want to make sure people understand is procedurally how these cases work. You need to have some sense of what's going on in terms of procedure when you're walking in.
I'm going to hit just a very generic overview of how that works. Now procedurally what is going to happen is, typically somebody's going to file a petition for something. Somebody's going to file a petition to get the divorce. A petition to enforce parenting time, or to establish parenting time, or whatever it is, there's a petition. Now a petition is basically your request to the court to resolve an issue of some sort. You're saying, "Hey court, I've got a problem, here's what I want you to do for me. I want you to give me this divorce. I want you to give me this parenting time. I want you to enforce parenting time." Whatever that thing is.
The normal pattern that I see, and there's lots of variation on this, but just so you have a general overview, the normal pattern you see is the court's then going to schedule some sort of a short hearing, it's sometimes called the return hearing, sometimes it's called a resolution management conference, and there's slight variations in what each of these is, but there's going to be some sort of initial hearing in which you come back and you say, "Hey court, here's what we need from you. We need you to schedule a trial, or we need you to appoint experts, or whatever.
Then there's either going to be subsequent, like status hearings, or short hearings like that, or you're going to set up for a trial and eventually it's going to culminate in a trial. Understand, for each hearing that you're scheduled for, and whatever hearing you're going to be walking in, there's typically an order that schedules out what it is and describes what's going on. Make sure before you go into any of these hearings, you understand what that is.
You can look stuff up online, the worst case scenario, but very often the stuff is buried in the very orders that are telling you what to do. Read those order carefully. When you get an order from the court saying you're going to have a hearing, before you walk in, know what it is you are walking in to. Have a very good understanding of that, and another thing that you can do, just if you are confused, you see a scheduling order, you see a particular type of hearing, say ...
Shelley Rosas: Well wait a minute, tell them what a scheduling order is.
David Enevoldsen: Sorry, it's that order that comes from the court that says, you're going to come to this hearing. I'll finish this thought I just one second. We're going to take another quick break.
I am your attorney David Enevoldsen, I'm joined today by my co-host Shelley Rosas. When we return we will talk more about representing yourself in a family court proceeding. If you want to call in and ask any questions you can do so by calling 602-277-KFNX. You are tuned into Family Law Report on Independent Talk 1100 KFNX.
David Enevoldsen: Welcome back to the Family Law Report, I am your host David Enevoldsen, attorney with Family Law Guys, an Arizona law firm, here with you every Sunday at noon on Independent Talk 1100 KFNX. I'm joined today by my co-host Shelley Rosas, and if you want to reach out to schedule an appointment with our firm, Family Law Guys, you can do so by calling 480-565-8680, or you can check us out on our website at www.familylawguys.com.
If you're listening and you want to call in and ask any questions, or share thoughts, you can do so by calling 602-277-KFNX and today we've been talking about representing yourself in a family court proceeding. Now it's my understanding that we have a caller that's right there.
Speaker 32: That's correct.
David Enevoldsen: Just as I was reading off the number, can you put him on?
Speaker 32: There you go.
David Enevoldsen: Hi Bud, can you hear?
Bud: Yeah.
David Enevoldsen: All right, Bud, you are on the air and you're talking to David and Shelley. What is your question?
Bud: Hi, okay, let me ask you a question, a friend of mine in Utah, this is the way it went down. I was thinking about another question, but I think this is one is more important, because ...
David Enevoldsen: Just as a preliminary point, before you get into any factual stuff, just understand that on the air, in this setting, we can't give you specific legal advice, we can talk about generality ... [crosstalk 00:46:03]
Bud: I understand. [crosstalk 00:46:03]
David Enevoldsen: The law generally.
Shelley Rosas: Also, that we are Arizona attorneys, not Utah attorneys that's our [crosstalk 00:46:07]
David Enevoldsen: With that caveat there, go ahead.
Bud: Okay, so let's just say that this scenario happened in Arizona. Okay, husband and wife, he had, his father bought him and his wife a house, put it both of their names. Boom, done deal. There's no mortgage, no liens attached to the house or anything. He decided he wanted to sell the house and get a house on the lake. He sold the house and bought a house on the lake. Okay, now, they were going to get a divorce, so they went ahead and sold that house, and took the money that his parents gave both of them as a couple.
Sold the house, took the money. Okay, forged his wife's signature on the back of the check, and she has proof that the house was in both names. Forged her name on the back of the check and went over and put it back into his family's estate. If that happened in Arizona, what would happen? She has proof of the forged signature on the back of the check.
Shelley Rosas: Okay, I think you've got a couple of issues going on here. You've got an issue in the divorce regarding property, or the money that would come from the sale of the home. Initially, hypothetically, this is a hypothetical client to us, but if the house was put into both parties names then the house would belong to both parties equally.
David Enevoldsen: I would agree.
Shelley Rosas: The money then would be ... And then if it was sold and bought a house on the lake ad it was in both parties names, then not just ... It would not, the money would not be just one spouse or the other spouses, it would be split equally in a community of property state such as Arizona, in any divorce.
Bud: If she has, she went to the title agents and got a copy of the check, and it had her forged signature, because she can't write that way, the way it was written. She told me she said, "I can't write that way, that's not my signature." He forged her signature, took it over and stuck it back in the family's estate. Basically with intent to deceive her out of what was given to both of them.
Shelley Rosas: Okay, and at that point, in the state of Arizona you've got criminal fraud statutes, and forging a signature would be a type of a fraud or deceit, but I have yet to see law enforcement in my experience ever in a divorce prosecute a forged signature of a spouse. That being said ...
David Enevoldsen: I've seen them look into it.
Shelley Rosas: I've seen them look into it, but I've never seen an actual criminal prosecution, but it can be reported to law enforcement if there's actual forgery. I think to develop evidence for a case like this, you would need a handwriting expert, you would need to subpoena the files, and you would need to trace the funds and show that they went from that title company back into that family's estate, so that half of those funds could be recovered.
David Enevoldsen: Yeah, this is going to be in parte, an evidentiary question in terms of what is is that happened.
Bud: She's got all the documents, she had to ... The title agents, she said that she had to fight the title agency for them, and they wouldn't give her a copy of the check. She was real nice to one of the employees and one of the employee just printed it off and just gave it to her, when the manager wasn't around, because she felt sorry for her. [crosstalk 00:49:33] Let me ask you, let's just for conversation say you two were married, and your wife was ...
Shelley Rosas: We get married a lot of ways, so I'm only laughing because ...
Bud: Okay, you ma'am, you put a lot of your money into the upgrades to a house, okay. Let's say you spent $100,000 of your money, out of your pocket, into upgrading the house.
Shelley Rosas: Where does ... Before you go forward, where did this $100,000 come from? When you say, "My money." Is it money ...
Bud: Your earning over the period of years, you had money put away and you were spending your money to upgrade ... You wanted new granite counter tops, you wanted this, you wanted that. Your husband was ... He had obligations and he said, "Look I can't afford to go into debt on this, if you want it does that's okay, it's up to you.
You put all this money into the house. You both decide you're going to sell the house. You grab the check and take the money and put it into your bank account. You both move into another house. Is your husband, is he entitled to decide what part of that money is going to be sent on the new house? Or is is all going to go back into your pocket?
Shelley Rosas: Well everything in Arizona is community of property, because Arizona is a community of property state, so all of the earnings of both parties belong to both parties. The decisions are community and considered community. I mean that's more of a personal that they would discuss in therapy.
David Enevoldsen: Well I guess here's my perspective on this whole thing, and just to circle this back around to what we were talking about before. Think about the narrative that you're bringing to me, and I'm not saying anything you're saying is wrong, but you've got a particular perspective on this, and you're coming in, you've heard from your friend or whoever this is, all of these positions, and you're going to talk to the other side, and you're going to walk into court, and this other side is going to have a very different perspective on a lot of these factual things.
Some of these things, you will often come in and say, "I already know exactly how this is, I've got all the evidence." I cannot count the number of times I've had clients come into me and say, "I've got all the evidence proving ABC XYZ." Then when you sit down and start looking at what they are, they have in front of them, and again I'm not saying this is the case with you, or your friend or whatever, but what I'm saying is very often there looking at what they want to see. They're seeing this stuff that is just from ...
Bud: It's not the real picture, it's what they're looking at through their own glasses.
David Enevoldsen: Exactly, and so when you look at it, this is why it's become so important to take this stuff, these document, this evidence, whatever it is, the story, put it in font of this neural third party and I don't mean to cut short the concepts we're talking about here in your particular case, but this is a discussion we have to have behind closed doors with a much longer amount of time.
Because you have to sit there and go through this much more in depth, and you have to understand that the side is going to walk in saying the exact opposite, and they're going to throw enough stuff out in trial that all this is going to get doled out, and at the end of the day unless you've got something that objectively looks absolutely slam dunk, it can be hard to win in that fight.
On top of that there's this old saying that, if you go to trial, even if you win you've already lost. Because, especially of you're paying for attorneys, or even if you're not, going through this process of finding things out and ...
Shelley Rosas: Discovery.
David Enevoldsen: The psychological impact of it, and just the length of time that it takes, and the fact that you can deplete a lot of your assets that you're fighting over, just getting to the point of trial, can be incredibly damaging. Even if the court ultimately says that you are correct, so ...
Bud: He worked, the guy worked in a financial institution, and he oversees the fraud department, and she has all this stuff. I mean I would ... Would you think that a judge would be a little upset with that person forging the signature of somebody else, knowing that he works in the fraud department?
David Enevoldsen: Yeah, absolutely, but I'm going to stop it here so we can jump to one last thing. Thank you for the call, I appreciate it.
Bud: Yeah, goodbye.
David Enevoldsen: Again, this is going back to my point of yes, if you can prove that. At the end of the day though, the problem is even if you feel like you've got this slam dunk piece of evidence, and I haven't seen the stuff, I don't know what's going on in this case other than just the brief couple of seconds he's told me about. I don't know what's going to happen when you get all this stuff in the trial, and you've got different things coming in and people saying different perspectives.
The judge often will just split the baby, and say, "Oh well, you're saying A, this person's saying B, I don't know, whatever, and just divide it in half, because it's really hard to tell what really happened." One of the first questions you've got to ask is, how important is it to you to fight this out and run the risk of being wrong, or having somebody see this is a different way from yourself?
That's a really important question, because people get so hung up on being right or punishing the other side or just getting the judge to acknowledge that they're right, or to say, "You committed forgery, so I'm angry at you." Whatever that is. This goes back to my core point here, and I think this is why this is also important is you've really got to check yourself and your emotions and how tied in you are and how important it is to you to have this role of the dice when you're walking into trial.
Shelley Rosas: There's ... I see two things, okay David's talking to you about the self-representation emotional piece, I'm going to talk to you about the legal ...
David Enevoldsen: We're actually out of time, so we're not going to do that.
Shelley Rosas: Sorry about that.
David Enevoldsen: Bud, thank you for calling, we are out of time for today. You have been listening to Family Law Report. I am your host David Enevoldsen, an attorney with Family Law Guys, an Arizona law firm, and I've had with me Shelley Rosas, my co-host, we have been talking about representing yourself in a family court proceeding, and we may have to continue that a little later because we didn't get too far into that.
Join us again next week on Sunday at noon, for more of the latest on family law here on Independent Talk 1100 KFNX. Thank you all for listening.
Speaker 6: 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 general problems in the divorce system, to simply providing tips to those getting married or going through a divorce or a custody fight.
Tune in every Sunday to the 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.