The Law Office of James L. Leather, PLLC

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New Services Offered: Document Preparation and Limited Scope Appearance

Over the past few years our office has had numerous inquiries as to whether or not we offer document preparation services and whether we offer limited scope representation in family law matters.  The office has decided that it will immediately begin offering both of these services. 

Document preparation means that the attorney will not make a formal appearance in the case but will prepare whatever documents are needed to start or complete a dissolution of marriage proceeding, a paternity matter, a child support matter, a legal decision making (i.e. custody) matter, a parenting time matter, etc.  This could mean preparation of the documents for an initial dissolution, together with a final Consent Decree of Dissolution, Default Decree of Dissolution, Parenting Plan Agreement etc., or, post decree modification petitions for decision making, parenting time, child support, spousal maintenance, etc.   These services can be obtained at reasonable costs.  Please note that, again, the attorney will not make a formal appearance in the case, and will not, under this scenario, appear in court, unless retained on a different basis. If all you need are documents prepared then this may be the route to go.

Limited scope appearance means that the attorney will enter a formal appearance in a case, just to handle one matter, i.e. a temporary orders hearing, a final trial, a modification hearing, etc., and will then withdraw immediately after that service is completed.  Our court system, at this time, specifically allows this type of representation.   Again, these services can also be obtained at reasonable cost.

If you find yourself in a position where you cannot afford to hire an attorney to handle a matter on your behalf, you may wish to consider utilizing a document preparation procedure or a limited scope appearance procedure for your case. 

If your case is more complex, please remember that we do offer a complete set of services for handling your dissolution proceeding, paternity proceeding, decision making (custody) and parenting time issues, child support establishment, modification, and enforcement proceedings, etc. 

Always remember that we do offer a free initial in office consultation for those residing within Maricopa County, and, initial telephonic consultations for those residing outside of Maricopa County, Arizona.

Thoughts on Military Retirement

As noted previously, the purpose of my blog is to bring up concepts and situations that we see regularly in our family law practice. Some may or may not be applicable to you or your case, but, hopefully they provide some information for you.

Military retirement has become an area that is very complex.  Many times a service member is either entitled to military retirement pay, and/or VA disability pay.  In the case of VA disability pay, same cannot be divided with a spouse in a dissolution proceeding, whereas regular military retirement pay can be divided.  We often see the military member claiming disability pay, for tax purposes, and for the reason that it cannot be divided with a spouse.   It reduces the regular retirement pay that can be divided between the service member and spouse.   This can have a dramatic effect upon how one should proceed with a dissolution proceeding regardless of whether you are the military member or the spouse of a military member.   Although Congress did enact legislation in the early 2000’s to restore full retirement pay to a service member, with the member receiving full VA disability pay.  This  law is being phased in and will not be fully implemented until year 2014.  As a result we still have the issue referred to above.

Some non military spouses have taken the position that if their portion of a spouses military retirement pay is reduced by the service member claiming part of same to be disability pay, that they should be indemnified through other assets in the dissolution for that loss. The Arizona State Legislature has specifically addressed the issue and indicated that the Court cannot indemnify a non service member spouse for any loss of interest in a service member’s retirement pay.  In addition the State Legislature has indicated that, for purposes of determining spousal maintenance that the Court cannot take into effect any income received via disability benefits. 

We also often hear clients or potential clients stating that their spouse had not been in the military for ten (10) years during the parties’ marriage and as a result, they are not entitled to any potential retirement benefits.  This is incorrect, although the payment is different.   The military will not honor an Arizona court order for direct payment to a former spouse of his or her portion of the service member’s retirement account, unless the parties have been married ten (10) years and there are ten (10) years of military service during the marriage.  If, however, these two (2) requirements are not met, the former spouse is still entitled to his or her one half community share in the military member’s retirement account, assuming the military member qualifies for retirement pay.  It is just that the military will not make the payment to the former spouse, the military member must make the payment to the former spouse, by Arizona court order.

The above are just a few of the issues that are popping up with regard to the “military divorce”.  There are other issues with regard to military retirement, which should be discussed with a family law attorney well versed in the subject. If you have any additional questions regarding military retirement, or any other family law question, and you would like to schedule a free thirty (30) minute in office consultation,  please do not hesitate the fill out the Free Initial Consultation section on the home page, or, call my office at 602-404-9733.

RETIREMENT ACCOUNTS

One of the purposes of this blog is to bring certain issues to your attention that we see occurring in our family law practice on a regular basis.  The issues may or may not be relevant to your case, but, do appear in many of the cases that we handle. 

This blog is about retirement accounts.  Retirement accounts are normally one of the most valuable assets of a couple going through the dissolution of their marriage.  They must be handled carefully in order to assure that each party obtains his or her half of the community interest in the other’s retirement accounts. 

Certain retirement accounts, like a 401k plan, an IRA, or a defined contribution plan, are relatively easy to value, as the amount of money in each account as of date of the termination of the community, i.e. service of process of a Petition for Dissolution, is the value of the plan to be divided between the parties. This assumes the entire sum in the plan was accumulated during the marriage.

A more difficult type of plan, however, to value or divide, is what is referred to as a defined benefit plan.  This is the typical Arizona State retirement plan for teachers and government employees.  There are some major private employers that also have this type of plan.  The issue that we see in most cases will be to divide the community portion of the monthly benefit to be received when the employee/spouse retires, between the parties, or whether to have an actuary appraise the plan for its current fair market value. If we have an appraisal we can award the plan to the employee/spouse, but, award the non-employee/spouse other assets totaling one half of the community interest in the plan.  An appraisal of this type of plan, in my practice, is about $400.00 per plan, with the actuary that we use.

 One common mistake that we see individuals making is to believe that the value of this type of plan is the value stated on an annual statement received by the employee/spouse, normally each year.  Typically, this type of “value” is only a liquidation value and only normally includes what the employee/spouse contributed to the plan.  It normally does not include what the employer has contributed to the plan.  As a result, this is not the correct fair market value of the plan, and, in fact, is normally far, far less.  We often times see the employee/spouse trying to convince the non employee/spouse that this is the value of the plan, which then should be awarded to the employee/spouse at the lower value.

There is also another issue with regard to this type of plan.  That issue is when should benefits be received? Normally, each party receives his or her one half of the community portion of the monthly benefit when the employee spouse retires.  It is possible, however, under some plans, for the non employee/spouse to begin receiving his or her community interest in the plan prior to the retirement of the employee/spouse, if the employee/spouse decides to delay retirement past the normal retirement date.   Each case is different and you should consult an attorney and in all likelihood an attorney who specializes in preparing the specific order to actually divide the plan.

Watch for future blogs for additional items to watch out for regarding retirement plans.

New Custody Statutes in Place

In my September 14, 2012, blog, I set out, in some detail, the changes that were coming with regard to the custody statutes.  They have now arrived, and while still very early, some issues are being clarified.  One of the issues in the September 14, 2012, blog, was the issue of “personal care decisions”.  It appears that there is now discussion that same mean life altering type of personal care decisions, that could be made by the sole legal decision maker (the old sole custody order) or jointly if there is a joint legal decision making (the old joint custody orders)  in place.  There seems to be some consensus that this does not mean “routine” day to day type personal care decisions by one parent during his or her parenting time with the child.  It is suggested that permanent tattoos, piercings, and maybe even significant haircuts are not routine. 

It must also be noted that the new statute states that each parent, when that parent has parenting time, is responsible for providing the child with food, clothing, and shelter.  This should eliminate the arguments about whether or not one parent must provide clothing to the other parent during the other parent’s parenting time.

There also appears to be a consensus that the current statutes, as written, do not mandate equal parenting time or something close to equal parenting time. The issue of parenting time  must be decided on a case by case basis.

It must be noted that there is uncertainty in the legal community, at this time, as to whether or not the changes to the “custody” statute(s) are significant or are just changing the names.  Only time will tell.

As events develop, and more information is gathered regarding the new statutes, I will post them in future blogs.

CHANGES IN CUSTODY STATUES, COMING JANUARY 1, 2013

Major changes are coming to the custody statues effective January 1, 2013.  The new statues will replace the term “custody” with the term “legal decision making” in the Arizona Revised Statues title 25.   Thus, we now have either a parent designated as the “sole legal decision maker”, or, the parties are designated to have “joint legal decision making” authority.   Regardless of whether it is sole or joint legal decision making, “legal decision making” means the legal right and responsibility to make all non emergency legal decisions for a child, including those regarding education, healthcare, religious training, and personal care decision.  The addition of “personal care decisions” has not been defined and will need some refinement.  Will this cover the issue of whether a child receives a tattoo? What type of hair cut the child will have?  What type of cloths the child may or may not wear? These are issues that will have to be dealt with in the future.  The scope and extent of this phrase is unknown, and it is unknown whether or not and to what extent a sole decision marker can dictate to the other parent for “personal care decision” regarding the child.  It must also be noted that parenting time for the parent not awarded sole decision making authority, is defined as the right to have the child physically with that parent, and the right and responsibility to make during that placement, routine daily decisions regarding the child’s care, consistent with the major decisions made by the party, having sole legal decision making authority.  The definition of what is “routine” verses what is “major” will also be something that needs to be addressed in the future. 

Following a decision as to whether or not the Court is going to award sole decision making authority to one parent or award both parents joint decision making authority, the Court then addresses the parenting time for each parent.  Regardless of whether a sole or joint legal decision making decision is made by the Court, the statutes provide that each parent is “entitled to reasonable parenting time to ensure that the minor child has substantial, frequent, meaningful and continuing contact with the parent.  The exception, of course, would be if the Court found that parenting time would endanger the child’s physical, mental, moral, or emotional heath.

However, note the language used, i.e. substantial, frequent, meaningful, and continuing contact with the parent.  Arguments could be made that what this means is that each parent should have equal parenting time, or something close to equal parenting time, in order to meet this definition. Again, this is an area that will have to be addressed through the courts in the future. 

All of the above is a brief summary of coming changes. In the future, additional blogs will be dedicated to this major change in the Arizona custody statutes.

Should you find yourself currently in a divorce, paternity, child custody, or custody and parenting time modification proceeding before the Maricopa County Superior Court, or if you are have issues regarding any of those issues or any other family law issue, including the receipt or payment of child custody and/or spousal maintenance, please do not hesitate to contact our office and schedule a free 30 minute consultation to discuss same with the attorney.

ORDERS OF PROTECTION / MISDEMEANOR CHARGES – WATCH OUT!

One should not hesitate to apply for an Order of Protection or an Injunction Against Harassment, if the factual scenario is appropriate.  The Order of Protection statutes, set forth in A.R.S §13-3602  play a very important part with regard to keeping parties safe during tumultuous and acrimonious divorce proceedings, custody proceedings, etc.  See also the Arizona Rules of Protective Order Procedure.

However, it is becoming  part of a family law practice to encounter Orders of Protection and Injunctions Against Harassment that are being  used as custody orders, and used to deny one parent any parenting time or contact with one’s children. 

If you are served with an Order of Protection that includes your children, you, of course, may request a hearing in an attempt to remove the children from the Order of Protection and you are entitled to that hearing within ten (10) days of requesting it.  A motion for temporary orders may also be filed in a dissolution or paternity matter, in order to get the matter before the judge assigned to your case. 

In addition, if, for any reason, a misdemeanor criminal charge is filed against you for assault, domestic violence, etc., you must be aware of the fact that if you plead “No Contest” or “Guilty” or are found guilty by the Court, one of the terms of probation could be no contact with the opposing party, and the children, for the term of the probation (which could be years) pending further court order.  In addition, it has been this writer’s experience that the Maricopa County Superior Court judges will not modify a term of probation of a lower Court that prevents contact with the opposing party or the children, and will merely indicate what parenting time would be appropriate and then instruct the party to go back to the Municipal or City Court to try and get the term of probation modified., to allow the visitation or parenting time.

Contesting the Order of Protection or Injunction Prohibiting Harassment, and approaching the judge in a dissolution or paternity matter for hearings on temporary orders, or modification of temporary orders, and then possibly fighting a misdemeanor charge, just to see the children again, can cause financial havoc to a party’s finances.

In summary, and while one should not engage in any act that would or could be classified as domestic violence or assault, one should always be on the lookout for circumstances that could lead a party to make these kinds of allegations.  In addition, when facing an Order of Protection, an Injunction Against Harassment, or a misdemeanor charge(s), one should always be aware of the ramification of each separate type of proceeding on custody and parenting time orders when attempting to resolve the issues.

If you have been served with an Order of Protection or Injunction Against Harassment or have been charged with misdemeanor assault or domestic violence, and are currently in the mists of or are planning on filing for divorce, paternity, child custody, or custody and parenting time modification proceedings within the Maricopa County Superior Court, and would to discuss your situation and options you may contact our office for a free 30 minute consultation either by filling out the Free Initial Consultation section on this website or calling our office at 602-404-9733.

Modification of Out of State Child Support Order

Do you have an out of state child support judgment that needs to be modified in Arizona?

An issue that has come up in several cases recently is one that all parties and attorneys should be aware of.  It involves how to modify an out of state child support judgment in the Arizona courts and the procedure to do so. 

The most common scenario is where the payee (person receiving child support) resides in Arizona with the child(ren) and the payor (person making the payments) resides outside the State of Arizona.  The parties have an out of state child support order either as part of a divorce decree, paternity judgment, etc. , and the payor desires to either  modify, or perhaps terminate, the  out of state child support order, and they want the Arizona courts to do so.  How to do it?

Because in this scenario the payee resides in Arizona and payor desires to modify or terminate the order in Arizona, initially, Arizona would have personal jurisdiction over both parties to do so.   

In the past, in order to accomplish the desired result, an exemplified copy (double certified copy) of the divorce decree or paternity order would be filed in Arizona, under the Uniform Enforcement Foreign Judgments Act (UEFJA) to “domesticate” the foreign judgment in Arizona.  After a short passage of time, and no objections being raised, the foreign judgment then became subject to Arizona modifying, terminating, etc. 

Several years ago, a new statute was enacted at the federal level, which all states were compelled to adopt, called the Uniform Interstate Family Support Act (UIFSA).  You now must register the foreign child support order in Arizona under UIFSA in order to terminate or modify it!   There is a specific procedure set forth under A.R.S.’25-1302, which must be followed.  If you do not register the foreign child support order properly under UIFSA, then any order obtained in any other way, is void.

We have recently seen where parties have both “domesticated” the foreign judgment, i.e. child support order, in Arizona under the UEFJA, then have the Court modify the child support order, only to learn years later, that the order was void.  At that point, one of the parties will undoubtedly be very unhappy. 

Should you have any questions concerning modification of out of state decree or order, please contact our office for a free initial consultation.  Our practice is limited to family law, including divorces, custody, child support, paternity, grandparent visitation,  orders of protection, cohabitation, as well wills, living wills, and Powers of Attorney.

Filing a Response

If you have already been served with a petition for divorce, petition to establish paternity, child custody, parenting time, child support, or petition for modification of child custody, parenting time, and/or support, you will need to file a response.  Depending on where you were served you have a specific amount of time to file a response. If you were within the State of Arizona you have 20 days from date of service, outside of the State of Arizona you have 30 days.  You should meet with an attorney for a consultation to review the documents you have been served with and discuss your options.

A response is how you tell the court whether or not you agree with what the other party is asking for in their pleading.  It is also your time to explain how you believe the issues brought by the other party should be handled.  In some cases a response may also contain any additional requests you may have regarding the matter brought before the Court.  Depending on what you were served with there may also be other documents you will need to file with the court. 

Whatever documents you have been served with, it is always in your best interest that  you do not ignore them.  Just because you do not respond does not mean the matter will go away.  In fact, if you do not file a response within the proper amount of time the other party may file for a default and then ten days later request a default hearing or have your matter concluded without a hearing.  Either way, you run the risk of decisions being made and orders being filed without any input from you.  You may end up being ordered to pay support in an amount more than you would have had you participated in the proceeding.

If you have been served with any form of family court pleadings, it is highly recommended that you, at the very least, find an attorney to speak with to discuss your options.  If you would like to be contacted by my office, and be scheduled for a free consultation, please fill in your information where indicated on the right side of this page or call my office at 602-404-9733.

Getting Started

Now that you have had your consultation with me, and/or with another attorney, and you have decided to hire my office to represent you in your matter, the next step is to call my office and scheduling a one (1) hour “initial meeting”.   During this appointment, we will review and you will sign the retainer/fee agreement and pay your initial retainer amount. (This amount will be discussed with your during the consultation.) Once that is completed, we will proceed by discussing your matter at great length and start preparation of your initial pleadings, whether that be the pleadings to start your case or responses to pleadings already served on you.   Depending on the documents that will need to be prepared, you may be asked to wait or come back.  Once the necessary documents are ready, you will be required to review all the information and statements made within them, ask any questions you may have regarding the documents, make any necessary corrections or changes, and, upon your approval of the pleadings, you will be asked to sign a verification page which indicates that the information and statements made within the pleading is, to the best of your knowledge, true and accurate. 

Once you have approved and signed the initial documents, my staff will process the documents for filing with the Court and filing fees will be obtained from my bookkeeping department.  Most initial documents filed with the court will need a check for filing fees.  The amount of the fee depends on the type of document filed and whether it is regarding a divorce, custody and parenting time, support, paternity, or other family issue.  The amount of the fee will be deducted from your paid retainer, so, you do not need to worry about this charge.

Once your documents have been filed with the Court, my office will provide you with a conformed (court stamped) copy of the documents, and will either mail a copy or have a copy served upon the other party. Again, this depends on the type of document filed. 

The time between your initial meeting and the filing of your initial documents normally takes between 24 and 48 hours to complete, depending on the matter.  If your matter is of an urgent nature, this first step, from meeting to filing, can be completed within the same business day if necessary. 

With this completed, your matter is now officially on its way.

THE CONSULTATION

Your first initial visit to the office would be for a consultation.   If you live out of state, live a significant distance from our office, or, if physical limitations prevent you from coming to our office we can do a telephonic initial interview.  We initially start with a short questionnaire for you to answer.  If your consultation is telephonic, this document would be emailed to you for completion with a request to complete and return prior to your consultation.  You and I would then sit down together and we would go over the law as it applies to your case. This would include, but not be limited to, divorce, child custody, visitation, child support, grandparent’s rights, paternity, etc.. We would then review in detail your issues and what you might expect as a reasonable resolution of those issues.   We would also discuss the court process with regard to the filing of any pleadings, the court appearances that are necessary, the roles of professionals in reviewing issues, and the final trial process.

My goal is that, at the end of the initial consultation, you will have all of the information you will hopefully need to think about and be able to make decisions as to how you wish to proceed with your matter.  

As with any important decisions to be made, I do recommend that you may want to interview more than one attorney for your case to compare the explanation and evaluation of your matter, before hiring counsel on your behalf.

Hopefully this was helpful in your understanding of what happens during an initial consultation with an attorney.  If you have any additional questions regarding our initial consultation, or, if you would like to schedule a free thirty (30) minute in office consultation,  please do not hesitate to fill out the information requested on the right side of this page , or, call my office at 602-404-9733.