Am I Entitled to Spousal Maintenance?

In Arizona divorce cases, Judges many times will award one party spousal maintenance.

A.R.S. 25-319 sets forth the computation factors that a Judge may consider in deciding whether to award spousal maintenance. The Judge may award spousal maintenance If the spouse seeking maintenance:

1. Lacks sufficient property, including property apportioned to the spouse, to provide for that spouse's reasonable needs;

2. Is unable to be self-sufficient through appropriate employment or is the custodian of a child whose age or condition is such that the custodian should not be required to seek employment outside the home or lacks earning ability in the labor market adequate to be self-sufficient;

3. Contributed to the educational opportunities of the other spouse; and

4. Had a marriage of long duration and is of an age that may preclude the possibility of gaining employment adequate to be self-sufficient.

Unlike child support, there is no set formula for determining the amount and duration of spousal maintenance. Instead the amount and duration is determined by considering the following factors:

1. The standard of living established during the marriage;

2. The duration of the marriage;

3. The age, employment history, earning ability and physical and emotional condition of the spouse seeking maintenance;

4. The ability of the spouse from whom maintenance is sought to meet that spouse's needs while meeting those of the spouse seeking maintenance;

5. The comparative financial resources of the spouses, including their comparative earning abilities in the labor market;

6. The contribution of the spouse seeking maintenance to the earning ability of the other spouse;

7. The extent to which the spouse seeking maintenance has reduced that spouse's income or career opportunities for the benefit of the other spouse;

8. The ability of both parties after the dissolution to contribute to the future educational costs of their mutual children;

9. The financial resources of the party seeking maintenance, including marital property apportioned to that spouse, and that spouse's ability to meet that spouse's own needs independently;

10. The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment and whether such education or training is readily available;

11. Excessive or abnormal expenditures, destruction, concealment or fraudulent disposition of community, joint tenancy and other property held in common;

12. The cost for the spouse who is seeking maintenance to obtain health insurance and the reduction in the cost of health insurance for the spouse from whom maintenance is sought if the spouse from whom maintenance is sought is able to convert family health insurance to employee health insurance after the marriage is dissolved; and

13. All actual damages and judgments from conduct that results in criminal conviction of either spouse in which the other spouse or child was the victim.

If you have questions regarding spousal maintenance issues or other family law related matters please feel free to contact me.

Jason Pistiner, Esq.
SINGER PISTINER, P.C.
602-264-0110
jp@singerpistiner.com
www.singerpistiner.com

Orders of Protection

In many cases that I handle, an Order of Protection is sought by one of the parties. In most cases, this is a legitimate request based upon a party's concern for their safety or the safety of their children. However, there are many occasions when a party acquires an Order of Protection as a tool to gain exclusive use of a marital residence and to cut off the other parent from his or her children.

A.R.S. 13-3602 sets forth the procedure and elements necessary to obtain an Order of Protection. Basically, the main element required to obtain an Order of Protection is that one party has or there is reasonable cause to believe will commit an act of domestic violence.

To obtain an Order of Protection, a party may go to any court (Justice Court, Superior Court, Municipal Court) and appear before a Judge that is assigned that day to hear these types of matter. If sufficient cause is demonstrated to the Judge, he or she will issue the Order of Protection. After the Order of Protection is issued, it must be served on the other party.

Because the other party is not present to defend himself at the initial acquiring of the Order of Protection, it is very easy for the asking party to obtain one. This is why many people utilize this procedure to kick a party out of the house and to keep him or her away from the children.

After being served with the Order of Protection, a party may request a hearing. By law, the hearing must be scheduled within ten days of the request. At this hearing, the party who obtained the Order of Protection has the burden of proof in establishing more likely than not that the events that were alleged in fact took place.

In my experience, the truth has always prevailed at these Order of Protection hearings. By that I mean that every Order of Protection I have ever sought on behalf of a client has been upheld after hearing. Likewise, every Order of Protection I have contested on behalf of a wrongly accused client has been quashed.

If an Order of Protection is upheld against a party than almost always that party will lose joint legal custody of their children and many times be subject to supervised visitation time with them. Additionally, the Order of Protection can affect your ability to gain certain types of employment as it will show up on a background check.

Recently, in a case in which I obtained an Order of Protection for a client which was upheld after hearing, the other party complained that offers he had for multiple six figure income jobs were withdrawn because the background check showed the Order of Protection.

Orders of Protection are a valuable tool in protecting the safety of victims of domestic violence. However, the misuse of obtaining them for ulterior purposes in family law litigation is a disturbing trend.

Jason Pistiner, Esq.
SINGER PISTINER, P.C.
602-264-0110
jp@singerpistiner.com
www.singerpistiner.com

What happens to my negative equity home in a divorce?

Prior to the housing crash, a couples' marital residence was their biggest asset to be split during a divorce. Typically, one spouse would refinance the property in order to buy out the other spouse's interest in the property as well as to relieve that spouse of any financial obligation for the mortgage. Alternatively, the parties could list the house for sale and split the proceeds. Times have changed.

The crash of the housing market has dramatically affected the disposition of the marital residence thru a divorce proceeding. Instead of being an asset, most of my client's homes are now significant debts. This creates enormous problems in deciding what to do with the property in a divorce proceeding.

Because of the negative equity in most of my client's homes, the option of refinancing the property or selling it is no longer available (as most lenders require 20% equity in the property). Wherefore, there are typically only a couple of options reaming. They are: 1) attempting a short sale; 2) a deed in lieu of foreclosure; 3) foreclosure; 4) attempting a loan assumption; and 5) not requiring the spouse who will be awarded the house to take you off the loan in the near future.

The first three options mentioned will all negatively affect your credit, and as such I always counsel against choosing one of those options.

Many banks, such as Chase, have a loan assumption process that an individual going thru a divorce can apply for, by which the bank will take the other spouse off of liability for the mortgage. This process will take at least 45 days and there is no guarantee that the bank will approve it. However, when available, this is usually the best option.

The last option is to allow the person being awarded the house to not have to get their spouse off of the mortgage via a loan assumption or traditional refinance, until such time as there is adequate equity to do so. The pitfalls of this option for the spouse who is not awarded the home is that they are still financially responsible for the mortgage should a default occur down the road, and the monthly mortgage payment will show up as a liability on their credit report. This liability remaining on their credit report will negatively affecting their ability to qualify for financing, should they attempt to buy another house. I always counsel my clients to not accept this arrangement, unless of course they are the party to be awarded the property.

Hopefully, we have hit bottom in the residential home market and will be able to see a rise in the price of properties in the near future. Until then, people will continue to face difficult choices in the disposition of their marital residence while going thru a divorce.

Jason Pistiner, Esq.
SINGER PISTINER, P.C.
602-264-0110
www.singerpistiner.com
jp@singerpistiner.com

Drug and Alchohol Issues relating to Custody of Children

In many Arizona child custody and divorce cases that I handle, there are allegations made against one parent of drug and alcohol abuse. Typically, when an allegation is made, the Judge is going to order the suspected party to immediately submit to a hair follicle or urinalysis test. The initial cost is incurred by the suspected party, but if the test comes up negative than the alleging party will have to reimburse the other parent for the cost.

If the drug test comes back positive, it almost always will result in that parent losing custody of their child(ren) and having his/her parenting time be supervised. Additionally, that parent will be subject to random drug testing until such time as he/she goes six months without having a positive result from a test.

A.R.S. 25-403 states that in determining custody the Court shall consider what is in the best interest of the child(ren). One of the factors is the mental and physical health of the individual, of which drug/alcohol abuse will play a factor.

Additonally, A.R.S. 25-403.04 states that if a parent has been convicted of a drug offense within the last 12 months that it is presumed that sole or joint custody should not be granted to that parent.

Lastly, A.R.S. 25-410(B) states that the Court may order supervised visitation if it finds that a child's physical health would be endangered by having unsupervised parenting time with a parent.

Clearly, if there was ever an impetus to seek help for drug and alcohol abuse, the prospect of losing custody of your children and having your time with them be supervised should provide such impetus. Sadly however, this has not been my experience.

Jason Pistiner, Esq.
SINGER PISTINER, P.C.
602-264-0110
jp@singerpistiner.com
www.singerpistiner.com