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Some Facts about Arizona’s Adoption Law

August 14th, 2017

Arizona allows any adult to adopt a child. Parents, grandparents, step parents, or non-related individuals can file a petition to adopt a child in the state or from outside the state. Here are several legal facts about Arizona’s adoption laws:

Adoption Eligibility

Arizona allows married, unmarried, and legally separated adults to legally adopt children. A married wife and a husband can jointly adopt a child. However, an unmarried couple may face certain legal restrictions when jointly adopting. It’s recommended to consult with local family law help in Scottsdale if you are an unmarried person with a partner who wants to jointly seek adoption of a child.

Adoption for Same Sex Couples

In Arizona, couples in same sex marriages can adopt children either individually, or as step parents. The law is unclear on whether same sex marriage couples can jointly adopt a child. The law could change soon, so it’s highly recommended to seek legal help if you and a same sex partner are seeking joint adoption.

Child’s Eligibility for Adoption

A child must be below the age of 18 to be adopted in Arizona. Also, the child must not be an illegal immigrant alien in the state when the adoption petition is filed. Foreign children can be adopted as long as they are not present in the state as an illegal alien defined by state law. Importantly, the child has to be free in legal terms to be adopted. The term refers to custody arrangements. The child’s birth parents, if present, must formally give their consent for the child to be adopted. If the birth parents are deceased or if their rights have been terminated by a court order, then this consent form is not necessary.

Foreign Adoptions Follow the Hague Intercountry Convention

All foreign adoptions in the U.S., including in the state of Arizona, are conducted according to the Hague Convention on Intercountry Adoption. The original country the adoptee comes from must also be a part of this Hague Convention for an adoption to take place. It should be noted that the U.S. bans adoptions from some countries, like Russia, even if these countries are party to the Hague Convention. Foreign adoptions can be a lengthy and expensive process. You should speak with a lawyer who knows immigration law to petition for a foreign adoption.

Non Relatives Require Court Certification

If the to-be adoptive parent is unrelated to the child, as an aunt or a stepparent, then the adult must obtain a court certificate to show eligibility. These certifications follow what’s called a “home study” carried out by an approved adoption agency in the state, an official from the Arizona Department of Economic Security, or a court officer. The study will involve an assessment of social, financial, and other qualifications of the prospective adoptive parents.

Birth Mother’s Husband’s Consent is Necessary

Arizona maintains that a married birth mother’s husband must give consent to the adoption. If the birth mother is married, her spouse must give consent even if he is not the biological father of the adopted child. If the biological father is not married to the mother, he must be notified of the adoption before it takes place. The biological father will be given 30 days to respond to the notification with paternity action.

Adoption, in general, is a straightforward process but some factors can complicate it. You must seek help from an experienced attorney to make sure the process goes smoothly.

Consulting with a Bankruptcy Attorney

August 7th, 2017

Before you file a bankruptcy petition, you must consult with a competent bankruptcy attorney. In fact, you should do this while even contemplating bankruptcy. The attorney would be able to tell you whether bankruptcy is the best option for your financial situation and the best timing to file. When you are consulting with a bankruptcy attorney, here is what you should ask and seek answers for:

Tell the Lawyer Briefly about Your Financial Situation

When you meet up with your bankruptcy lawyer in Scottsdale, be 100% honest with them regarding your financial situation. Do NOT withhold the truth for any reason.  If you haven’t hired the lawyer, you don’t have to give details of your debts. However, a brief overview will be necessary. Tell the lawyer what type of debt you have, your income situation, and why you think you are unable to repay your loans on time. The lawyer should be able to tell you then whether bankruptcy is the suitable next step for your financial situation.  If you lie to your lawyer, you could face criminal prosecution in your underlying bankruptcy case later because he or she would be defrauding the court.  The truth the truth and nothing but the truth, because your bankruptcy is filed under penalty of perjury.

Ask the Lawyer if He or She is willing to be a Negotiator

Before you file for bankruptcy, you can try negotiating with creditors. Bankruptcy is not the ideal scenario for either debtors or creditors. Some creditors may be willing to cut down the interest rate or extend the repayment plan. If you are worried about your credit score, negotiating is better than going to court. You can inquire about the pros and cons of bankruptcy from your attorney. It’s important to make sure it’s the best solution for your financial problems before proceeding.

Inquire about Different Types of Bankruptcy

The Bankruptcy Code allows for different types of bankruptcy petitions. You may have heard of some of these already, like Chapter 7. While Chapter 7 is the most common type of petition for individual debtors, it may not be the only one. If you belong to a higher income category, you may have to file for Chapter 13. If you have a family business in fishing or farming, you may be eligible for Chapter 12 bankruptcy. Ask your lawyer about which type of bankruptcy petition best suits your situation.

Check Your Eligibility to File a Petition

If you have filed for bankruptcy before, you may not be eligible to file again. For example, if you have declared Chapter 7 bankruptcy in the past, you will not be eligible for the same type of petition for about 6 to 8 years depending on what state you file in. There could be other factors, like income and alimony that make you ineligible to file for bankruptcy or at least the type of debt relief you seek. Therefore, you will need to ask the attorney to find out if you are eligible to file a petition and which chapter might get you the best debt relief.

Learn about Fees and the Process

Filing for bankruptcy is not expensive, but there will be court fees involved. Learn about these fees from the lawyer. Also, ask the lawyer to explain the general process of filing in your local jurisdiction. You will have to discuss representation fees and consultation fees as well. Bankruptcy attorneys are limited in how much they can charge as per Arizona law.  You typically get what you pay for.  The $99 down bankruptcy ads on TV are usually highly misleading.  Most bankruptcy filings, no matter who you hire, require several thousand dollars to file and complete.

If your consultation goes successfully, you will be able to proceed with your petition.  Consider www.clgaz.com as your legal resource.

What is the Difference between Divorce and Legal Separation in Arizona?

August 1st, 2017

In Arizona, there are two ways to formally and legally remove your estate from your spouse: divorce and legal separation. It’s important to understand that these are two different processes. Legal separation is not another term for divorce. While there are certain overlapping legal similarities between the two, it’s important to understand that these are two different things. Read below to find answers to commonly asked questions about divorce and legal separation in Arizona:

What is the Difference between Divorce and Legal Separation?

Obtaining a divorce means that the marriage is legally dissolved, with all assets separated, and both spouses legally become single people capable of remarriage and child custody rights are legally established. In contrast, a legal separation does not dissolve a marriage. The spouses will be technically still married to each other, but also judicially separated. However, like with a divorce, virtually all assets and debts are typically separated between the two spouses. But unlike in a divorce, the spouses cannot claim to be single persons for any legal reason nor can they remarry.  Most people pursue Legal Separation to maintain valuable health care coverage, among other reasons.

Why Seek Legal Separation Instead of a Divorce?

Legal separation may be suited for some people over a divorce for several reasons. Most spouses who do not want to divorce due to religious reasons or personal convictions can still undergo legal separation to judicially extricate oneself from a spouse. Spouses that want to live apart but without getting a divorce can obtain a legal separation.

Some people prefer to legally separate rather than divorce in order to keep valuable health insurance benefits of a group plan. As mentioned above, legally separated spouses are still considered married, and thus can benefit from continued spousal health insurance coverage. Similarly, those who have been married for less than 10 years can continue to receive social security benefits on their spouse’s federal benefits following a legal separation, unlike with a divorce in which such benefits are completely terminated for the lower earning spouse.

If you need to formally cut all legal, civic and other ties to a spouse, then you will need a divorce.

Grounds for Divorce or Legal Separation

Arizona is a no-fault state. It does not matter who did what to whom, or who cheated with whom.  Therefore, for both divorce and legal separation, you don’t need to show any reason for divorce to a court. If one spouse desires to divorce then the court will grant the divorce. Similarly, spouses do not need to prove a reason to get a legal separation. Claiming that the marriage is “irretrievably broken” is reason enough to obtain a Decree of Legal Separation as long as the other spouse does not object.  Only one of the two spouses must desire the divorce.  The person who “wants to hang on” cannot prevent the legal divorce from ultimately taking place.

What if One Spouse Insists on a Divorce?

Unlike in a divorce, legal separation is only granted if one spouse does not object. If one spouse wants a legal separation but the other wants a divorce, the court will convert the case and grant the divorce. Because a spouse can object, it’s important to discuss and make sure this is what both parties want. Consult with a local divorce attorney in Scottsdale to discuss your options.

What if the Legally Separating Couple has Children?

Child custody issues for legally separating couples are handled similarly to a divorce by Arizona courts. The courts will always prioritize the needs of the children. A family court will also determine parenting time and parental responsibilities.  You will receive formal judge imposed custody orders from the Court under either scenario.

What Happens to Marital Assets and Debts When a Couple Legally Separates?

Asset and debt separation for legal separations are also handled similarly to divorces. A court will make the determination.   Usually, the date upon which the original Legal Separation or Divorce Petition is “served” on the receiving spouse is the date that the community terminates.  Put another way, any salary or paychecks received after the date of service will usually be the earning spouse’s sole and separate property.  Exceptions apply, however.  Please consult seasoned legal counsel on all of these issues.

Alimony Factors in Arizona

July 28th, 2017

Alimony is the former name for what’s now called spousal maintenance. Alimony is financial assistance that the court orders one spouse to provide another spouse when a marriage ends. One spouse must request spousal support for the court to issue an order compelling the payments. There are several factors that a court takes into account when determining alimony. The court first examines certain qualifying factors to determine if one spouse even can procure alimony and then and only then decides how much and for how long.   There are no juries in Arizona family court, only a sitting judge.  So whether you like it or not, one person, in a black robe, will someday make a big decision on how much and how long your ex-spouse may or may not be paid upon divorce.

The Need for Spousal Maintenance

The court first decides whether one spouse actually qualifies for spousal maintenance and whether the other has the means to pay, before ordering maintenance be paid. A spouse may request alimony if he or she does not have enough property after marital distribution to provide for oneself, or is somehow unable to find proper employment. If one spouse has significantly contributed financially to the other spouse’s education, then alimony can be requested by the spouse who contributed. The court will look at the other’s spouse’s financial situation as well. A divorce lawyer in Scottsdale can help you file an alimony petition.

Duration of Marriage Affects Alimony

The longer the separating couple has been married, the higher the chance for alimony for one spouse may be. Generally speaking, if married less than 5 years, procuring maintenance from the wealthier spouse can be a challenge, or impossible. Once one hits ten years or more, the ability to obtain maintenance for some period of time appears to jump significantly.  If you have been married 30 years or more you can almost guarantee that someone is going to be paying spousal maintenance to the other.

The law of Arizona specifically states to take the duration of marriage into consideration when setting alimony. However, the law does not specify the ideal duration or a minimum duration. So even a spouse that was married for just a week can technically request alimony.  As noted, however, marriages of short duration rarely qualify for a payout.

Can Alimony Be Granted to Unfaithful Spouses?

The short answer is yes.  This is a common question for some divorcees. Understandably, a spouse may not want to pay alimony to another who has been unfaithful throughout the marriage. So, some spouses may prefer to have such spousal misconduct be a factor in determining alimony. However, in Arizona, divorce is not granted based on spousal misconduct. Arizona is a no fault jurisdiction.  Thus, couples can file for divorce in Arizona without providing a reason. If one spouse contests the divorce, the other spouse only has to show to the court that the marriage is broken beyond repair. Marital misconduct is not legally relevant to the divorce proceedings, and therefore will not play a role in any alimony fight. Unfaithfulness on one side does not lead to automatically denying alimony for that spouse, nor does the court demand the cheating spouse to pay the other. The same applies for dissolution of covenant marriages.  Long story short, while he or she may have cheated—he or she may still get paid by the Court depending on your income and length of marriage.

Prenup Roles in Alimony

A prenuptial agreement is an optional private contractual agreement that spouses enter into before marriage. When a couple divorces, a prenup is upheld for the most part if all provisions are in accordance with the law. If one spouse has agreed not to seek alimony in a prenup, the court will often uphold this in divorce proceedings. However, the court may rule otherwise if the spouse that needs alimony could end up in a welfare state without spousal maintenance. Arizona law allows courts to decline the validity of prenups if one spouse could end up in dire financial need following divorce.

Determining alimony is affected by many factors. Consult with a competent divorce lawyer to secure alimony as you desire, or to defend vigorously against paying it.

Marriage Annulment in Arizona

July 21st, 2017

Marriage annulment is a term many people have heard of, but only a few really understand. Forget about what you may have heard about annulment on TV. There are actually two types of marriage annulments: civil and religious. A religious annulment is granted by a religious institution like a church and its clergy. Civil annulment is granted by a court of law and affects your legal civil status. This article explains civil annulment.

What is Civil Annulment in Arizona?

Civil marriage annulment takes place when a court declares that a marriage is not valid but void. It means that the court legally declares that for legal purposes the couple was never married. It can be confusing, but if what was considered a marriage was not obtained in accordance with legal requirements for marriage in Arizona, the court can annul the marriage. It’s sort of like a court “erasing” a marriage. It is as if the marriage literally never happened.

The Two Types of Civil Annulment

Courts in Arizona classify annulments in two ways as voidable marriages and void marriages. A void marriage is a union that was not valid from the beginning. Arizona has a list of prohibitions for marriage, such as incest, which would make a marriage completely invalid. If a biological brother and a sister got married, this is not a marriage that the state recognizes as valid, and therefore would incur in a void annulment.   There are several other methods by which a marriage can be deemed void and you should consult a family law attorney for more details.

A voidable annulment is where one party can seek an annulment from a court. For example, if one spouse was deceived into marrying the other, the wronged spouse has the right to request a voidable marriage annulment.  Deception grounds can include, for example, failure to consummate the marriage by one partner refusing to ever have sex with the other spouse at any time after the ceremony.  Again, consultation with legal counsel is critical before you seek annulment.

Is an Annulment Any Different from Divorce?

Getting a divorce involves going through often-lengthy court proceedings to formally end a marriage. The important difference between divorce and annulment is that in the case of the former, the courts recognize the marriage as valid, and thus to end it there must be divorce proceedings according to the law. Annulments do not require going through lengthy court proceedings. Once a judge declares a marriage invalid, it’s no more.  It typically can occur far faster than a conventional divorce litigation.

It should be understood that not all annulments are quick and painless. There are very specific grounds under which a marriage can be annulled.  Absent qualification for such a remedy, your case will be diverted to a conventional divorce resolution like everyone else.

What are the Grounds for an Annulment?

Under Arizona law, there is a list of “void and prohibited marriages.” Any marriage that falls in this category is not recognized by the state as valid. Arizona prohibits marriage between parents and children, between grandparents and grandchildren, between whole or half-blood brothers and sisters, between first cousins (but only under certain conditions), and between uncles or aunts and nieces and nephews. Same sex marriage was also once considered “void and prohibited”. However, recent Supreme Court rulings have changed that. Same sex marriage is now legal and the law of the land.

There are other reasons a spouse can request an annulment, such as fraud, deception, coercion, intoxication (when getting married), underage marriages without parental consent, mental illness, “mock” marriages, inability to consummate the marriage, bigamy, and incest. To know for sure if your marriage can be annulled, get family law help in Scottsdale.

If the couple has children, the annulment proceedings will determine which party should be responsible for the children. The court may not recognize certain property as “marital assets” if the marriage is considered void. You should contact a lawyer with specifics to find out how annulment proceedings may affect children or assets. Annulment compared to divorce can generate a significantly different outcome in property allocations in any divorce or annulment scenario.