Collaborative Law – An Alternative to Litigation

Posted by on May 19, 2017 in Divorce | Comments Off on Collaborative Law – An Alternative to Litigation What is Collaborative Law? Collaborative law is an alternative to the traditional legal model where the parties agree to resolve their dispute without resorting to litigation. That’s right, imagine entering into an agreement to resolve your legal matter in good faith while saving the time and cost of going to court. It sounds very simple, but the collaborative process is quite structured which ensures the path to avoid litigation is adhered to. Collaborative law can be used in many areas of practice, including civil, probate, real estate and family law. Collaborative practice is especially useful for matters that are emotionally charged and revolve around interpersonal relationships. This could be close friends or family members who are having a business dispute, siblings fighting over the assets in their deceased parent’s estate, or parties who are unwinding their marriage. Is Collaborative Law Similar to Mediation? While both mediation and collaborative law fall under the blanket of ADR (Alternative Dispute Resolution), the two practices are very different. Collaborative law allows the parties with their collaboratively trained attorneys to commit at the onset of a case to stay out of litigation by creating a resolution that works for everyone. Mediation differs from collaboration as it employs a neutral third party. The neutral encourages the parties to come to their own resolution, but the matter itself remains under the courts and threat of litigation for any issues that are not resolved during the process. Another differentiating aspect between the two practices is that mediation does not employ any additional professionals necessary to assist the parties in areas related to their matter. For example, this could include a child specialist or property valuator, to name a few. A final difference is mediation will take anywhere between 3-8 hours on one day or at most, several hours spread over a few days while collaborative practice holds as many meetings as necessary that are focused but shorter in length to come to resolution on all issues. How Does Collaborative Law Work? Collaborative practice must be voluntarily entered into and the parties must both be on board to find a “workable, workable” solution. The specific tenants are as follows: The parties first sign an agreement describing the nature and scope of the matter and the duties and responsibilities of each party. The parties must voluntarily disclose all information which is relevant and material to the matter that must...
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How to Get The Most Out of Your Attorney

Posted by on Sep 6, 2016 in Child Support Enforcement, Divorce, Estate Planning | 0 comments Choosing your attorney carefully is important. This choice should be based on several factors when interviewing, including: picking someone you like, who understands you and listens to you, who you can work well with, and someone knowledgeable about the particulars of your matter.  After signing the agreement, most clients hand the case off to the attorney and hope for the best. Today’s discussion is on strategies that are instrumental in getting the most out of your counsel. Telling the Truth:  This is the very most important component in your relationship with your counsel. The attorney must know everything in order to best represent you properly. Even if the information is embarrassing, or you are ashamed of something you did, or it was a long time ago, you must tell your attorney. Why? Because this is exactly the type of information that can and inevitably will come back to haunt you and can destroy your case. An attorney bases their legal arguments on the facts you provide them. If the attorney has only a portion of the facts, then the legal theories will not hold and the attorney cannot perform as they could have if they were given all of the information up front.  Additionally, the attorney/client relationship is built on trust. Trust goes both ways. If you lie, or choose to leave out information, that can hurt your relationship. You want your attorney to want to assist you, so keep them happy by being honest. Being a Teammate:  When you hire, you and your attorney are a team. Throughout your representation the attorney will have a variety of requests for you. Some common examples include: providing evidence, being ready to discuss your case, and showing up to court on time.  Whatever the request may be, you must comply promptly and thoroughly.  If you delay in providing your attorney with their requests, it could have horrible consequences on your case. Furthermore, delaying your attorney’s work schedule is extremely disrespectful and inconsiderate of their time. The last thing you want to do is make your attorney resentful of you and end up withdrawing from your case because they cannot rely on you or feel disrespected. Adhering to your Agreement:  When you hire an attorney you enter into an agreement, or contract. That contract will state the terms of your relationship including the work that is to be performed and the fees...
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Stepparents Supporting Stepchildren – Is There a Duty?

Posted by on Aug 1, 2016 in Divorce | 0 comments Combined families are the new norm. Maybe the notion is not new, but the once-called “traditional family” consisting of a married couple living with their own children is becoming obsolete. The traditional family certainly is the minority in the year 2016. With the changes to the family unit, the law also evolves as our laws are intended to protect and support. Most everyone is familiar with the idea that if you have a child, naturally or by adoption, you are responsible for supporting that child at least until they reach the age of majority. The rule gets blurry, however, when stepchildren are involved. For healthy development, a child requires emotional support just as much as financial support. Today, we will be looking at the laws in Arizona regarding the financial support of stepchildren and the duty stepparents are held to regarding support. For purposes of our discussion today, a stepparent is defined as the relationship formed when an individual marries the custodial parent of a minor child and resides with the child. Who Must Provide Support? Under common law, a stepparent has no duty to financially support a stepchild while married to the child’s natural parent. Grubb v. Sterrett, 315 F. Supp. 900 (D. Ind.), aff’d, 400 U.S. 922 (1970).  Natural or adoptive parents owe a duty to support their children. This duty cannot be displaced by the custodial parent’s re-marriage or by the cohabitation of that parent with another person. A.R.S. §12-2451(A); Barrett v. Barrett, 44 Ariz. 509, 39 P.2d 621 (1934). Twenty states have enacted statutes that impose a duty for stepparents to support a stepchild. While this may seem unfair, or wonderful depending on your circumstances, it is nothing more than codification of the in loco parentis doctrine that is already the law across every state.  Arizona has not adopted a statute but follows the in loco parentis doctrine. The doctrine states that if a stepparent takes stepchildren into his or her family or under his or her care in such a way that he or she places himself or herself in the place of a natural parent, he or she assumes an obligation to support the child and acquires a correlative right to their services. Harris v. Lyon, 16 Ariz. 1 (1914). In determining whether in loco parentis exists, the courts look at intent. In actuality, the simple act of taking a child into one’s...
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Bankruptcy After Divorce – Why It’s a Bad Idea

Posted by on Jun 13, 2016 in Divorce | 0 comments When a couple divorces in Arizona, the community property is divided equitably. That means both assets and debts alike. “Equitably” does not necessarily mean “equally” and ultimately the court will make that determination or the parties will come to an agreement. Normally, however, both parties are responsible for a portion of the marital debt. So what happens when one of the parties files for Bankruptcy after the divorce? The effect of Bankruptcy after divorce is that the party filing the bankruptcy will discharge their portion of the debt onto the other party. Remember, it is community debt so both people are obligated to the creditors. In short, one party becomes solely responsible for all of the marital debt.  When that happens, the equity under the decree is destroyed. You may be thinking, well why wouldn’t the other party file for bankruptcy too? Most times, the other party does not qualify to file for bankruptcy because they earn more than what is allowed under a Chapter 7 bankruptcy. While one can discharge their obligations to creditors, they cannot discharge their obligations under a court order. According to Birt v. Birt, a case out of the Arizona Court of Appeals, the Superior court shall vacate portions of the decree and consider whether reallocating community property is appropriate in light of the changed circumstances due to one party discharging community debts through bankruptcy too soon after a divorce. In plain language, the parties can re-open the property division in their divorce decree when one party is substantially harmed by the other party’s bankruptcy. The good news is there is recourse through the courts, the bad news is reopening the property division is like going through another divorce. The time, expense of hiring counsel, rehashing old arguments and more. The risk then in re-opening the property division is that everything is revisited. This could end up being a negative if something had not been addressed in the original decree. For example, if one of the parties had a business that was not included in the original decree, you now are looking at including the value of that business. In order to properly place value on a business, one must hire a business valuator to do an analysis. The business valuator alone costs anywhere between $5,000 to $10,000. That does not include hiring the business valuator as an expert witness for trial. Another negative...
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Divorcing? Ask Yourself, Is the Marital Home Really A Prize?

Posted by on Dec 14, 2015 in Divorce | 0 comments Home is where the heart is . . . at least until it isn’t! In the U.S., divorcing couples fight hard over the marital home. As if being awarded the home in the divorce means you have won. This is certainly not the case in most instances and depending on several factors, you may not want the home. For many couples, the marital home is their largest single asset. But honestly, the home can be a huge burden and you have to make a financial decision when looking at the home and try your hardest not to think emotionally. When you get a divorce, everything changes. If you can put your mind in a place where you can accept that things are about to change drastically, the process will not only be easier to stomach, but you will make decisions that will benefit you in the long run. In short, you must train yourself to look at this house as a piece of property and nothing more. Do not see that wall you took an entire weekend to paint yourself as part of your being, but see it as a wall that you painted once. Rest assured there will be a new wall for you to paint in a different color in your future. Now that you are mentally prepared to look at this house through a financial purview not an emotional one, here are the items you need to consider when deciding if the house is financially in your best interest to fight for: 1.    Can you afford the real cost of owning that house now and in the future? You must consider the dollar amount it will cost to run a household alone. Do not calculate in child support or spousal maintenance – after all, many times even if one party is awarded this type of support, collecting it is not certain. So plan for yourself. Look at the mortgage; can you take this over on your own? Now add property taxes, insurance, repairs/maintenance, furnishings, and of course the never ending living expenses (gas, water, electric, food). If your answer is “I don’t know” or “that might be really tight” then you  need  to consider downsizing. Start small and build. I know it isn’t something you want but many times during a legal process what you want is the opposite of what you must do. The good...
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Critical Steps Women Must Take When Preparing For Divorce

Posted by on Nov 9, 2015 in Divorce | 0 comments I talk with women about divorce on a daily basis. While there is a broad spectrum of how women deal with the emotional side when facing divorce, I have found there is one commonality … the feeling of being overwhelmed. Whether she was the one who initiated or she was blindsided by the news, that one decision brings about tremendous change that shakes the core of women’s lives. It is most damaging when women are so enthralled in emotion (grief, sadness, anger) they make hasty decisions that can have an extreme affect on their lives. One must gain control in order to get through the legal and the emotional process. There simply is no avoiding either one. So where do you begin?  In order to gain control, I have found there are a few steps to take that will put you in the best possible position.  None of these are very exciting, but I promise if you do these steps you will save yourself a ton of time, money, and heartache on the back end. 1.    Collect your financial information. This is so important it must be step one. Gather all of your bank account information, tax records for the last three to five years, retirement accounts, life insurance policies, deeds, titles, securities, bonds, notes, stocks, in short – anything that looks like it could mean money get the information related to that item. Do NOT keep these records in your home or your vehicle. Take copies to someone you trust (parent, relative, friend) or place them in a safety deposit box. Bottom line, you do not want your spouse to know you have this information or have access to your collected records. 2.    Open a mailbox at the post office and separate email. This item brings such a relief of mind for my clients. Knowing that your mail is safe. Knowing that you can receive confidential mail during this process, in addition to your new bank and credit card statements.  You know you won’t miss something from the courts, your attorney, your doctor or even a card from a friend.  A small additional bonus of getting a post office box is that the mail gets there faster. I also encourage my clients to get a new email address, because often times these accounts are either shared or the spouse knows the password. Start fresh and that way everything...
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