Frequently Asked Questions
Are transgender marriages recognized in the Arizona courts?
In a recent ruling, the Arizona Court of Appeals ruled that a marriage with a person who is transgender is valid, even though same-sex marriages are not recognized in the State.
The distinction is that those who can by law get their birth certificates changed to reflect a new gender status also receive the rights connected to their amended status. For the court not to recognize those rights would violate fundamental equal rights protections guaranteed by the Constitution to all U.S. citizens.
The case involved Thomas Beatie who was born a woman in Hawaii and as an adult underwent surgeries and testosterone treatments to change his sex. After gender-testing, he was able to officially change his gender status to male on his birth certificate. He married Nancy Beatie in Hawaii in 2003. He retained female reproductive organs and became pregnant three times with donated sperm when his wife was unable to have children. The couple eventually moved to Arizona and sought a divorce. Last year, a judge denied the divorce request, ruling that Arizona’s ban on same-sex marriages prevented the marriage from being recognized as valid.
In August 2014, this decision was overturned. It remains on appeal to the Arizona Supreme Court. For the time being, it is a precedent-setting case that, if affirmed, is expected to protect many Arizona families with transgender marriages.
Canterbury Law Group can assist in transgender divorce and transgender child custody and other family law issues under this rapidly emerging area of law. Please call for a complimentary consultation to learn more about your rights: 480-240-0040.
Nine Critical Issues To Evaluate When Considering Divorce:
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Child Custody Evaluations
Some custody cases involve serious allegations concerning parental fitness. These allegations can include substance abuse, mental health issues, domestic violence and/or child abuse. Many litigants in cases involving these serious allegations either agree or are directed by the court to participate in a child custody evaluation.
In Arizona, there are many local, private mental health professionals who are qualified to be listed on the court’s roster to conduct child custody evaluations in a family law matter. Once one of these qualified mental health professionals is appointed by the court, then they will conduct a thorough investigation as to the family dynamics and allegations being made in a contested custody case.
A custody evaluator will review court documents, police and medical reports and any additional documentation relevant to a particular matter. The custody evaluator may also conduct psychological testing on both parents. In addition, children and other third party individuals may be interviewed at the evaluator’s discretion.
Unlike mediation, the custody evaluation process is not a confidential one. Once the evaluator has considered all of the relevant and necessary information to address the allegations, then the evaluator will issue a written report. This report contains the evaluator’s impressions and opinions regarding the allegations and also sets forth recommendations as to what legal decision-making and parenting time arrangements the evaluator believes would be in the child’s best interests.
Please call for a consultation: 480-240-0040.
Substance abuse and child custody cases in Arizona
Substance abuse by a parent is one of the leading causes of divorce and post-divorce custody modification proceedings. The effects of drug and alcohol abuse can be devastating to a family, especially the children, who have often times been exposed, neglected and abused due to a parent’s addiction. As a result, courts take substance abuse allegations very seriously.
Arizona law provides the court wide discretion in dealing with drug and alcohol abuse cases and the ability to issue strict orders to address the issue in child custody matters. For example, if it is proven that a parent has abused drugs or alcohol and/or has been convicted of a drug offense within the 12 months preceding the commencement of a child custody action, then the court may presume that it is not in the child’s best interests for that parent to be awarded legal decision-making rights. In addition, the court will issue a parenting time schedule that appropriately protects the child, including supervised/restricted parenting time.
If a parent has been found to have a history of substance abuse, the court will consider evidence that may show the parent’s sobriety, if such evidence exists. Often times the accused parent will be directed to submit to a series of random drug and alcohol tests and/or a substance abuse assessment. In serious cases, the court may direct a parent to participate in drug treatment and therapy. Similarly, a parent may be referred to the Maricopa County Superior Drug Court. If a parent can show his/her sobriety, then the court may be convinced to issue less restrictive decision-making and parenting time Orders.
Divorce cases involving parental substance abuse issues can be difficult and emotionally tolling because of the possibility of relapse and the likely need for ongoing monitoring. They can involve periodic reviews to assess the parent’s progress in Court-Mandated programs. It is important to have experienced legal counsel in a divorce and child custody cases involving substance abuse allegations, so that a thorough and accurate determination of the children’s best interests can be made by the court.
Please call us for a complimentary consultation: 480-240-0040.
What is domestic violence?
Domestic violence and domestic abuse can happen to anyone regardless of race, age, sexual orientation, religion, or gender. It can take many forms, including physical abuse, sexual abuse, emotional, economic, and psychological abuse.
Domestic violence perpetrators engage in a pattern of behavior where they attempt to gain and maintain control over the victim. The typical cycle includes periods of calm where the perpetrator can be extremely kind, caring and giving towards the victim. Then, tension begins to build in a perpetrator and the victim becomes apprehensive. Next, an act of domestic violence occurs. Afterwards, the perpetrator can be extremely apologetic, blame the victim for the abuse and/or promise that “it will never happen again.” The relationship then re-enters the calm phase.
Many cases of domestic violence in Arizona and across the country go unreported for a variety of reasons, including the victim’s fear, embarrassment, denial and a hope or belief that things will improve. Also, many victims of domestic violence do not leave the situation or continuously return for the same reasons. As a result, it can take a keen and experienced eye from an experienced domestic violence lawyer to recognize many cases of legitimate abuse and convincingly present them to the Court.
Children and Domestic Violence
An estimated 3.3 million children witness domestic violence each year in the United States. Most mental health professionals agree that children who witness acts (visually and/or audibly) of domestic violence against a parent are dangerously at-risk for physical, emotional and/or behavioral problems. Children who have witnessed domestic violence can exhibit aggression, social withdrawal, low self-esteem and depression. Further, some of these children will continue the cycle of abuse in their own adult relationships, either as a victim or a perpetrator. As a result of these potentially devastating effects, most Arizona Courts view children as actual victims of domestic violence in cases where they have been exposed to one parent’s act(s) of abuse against the other parent, even if the child was not necessarily the perpetrator’s intended target.
Arizona Domestic Violence Law and Child Custody
Historically, Arizona domestic violence law has recognized the severe impacts that domestic abuse can have on families. Statutes have been drafted such that perpetrators of domestic violence could suffer significant consequences when custody orders are issued concerning the children. For example, in cases where a parent is able to show, through police reports, medical records, witness testimony, etc., the existence of significant domestic violence and/or a significant history of domestic violence, it may be ordered that a perpetrator shall not be awarded any degree of legal decision-making authority. Similarly, a Parenting Plan must then be crafted to protect the best interests of the children and may include supervised parenting time and provisions for psychiatric treatment.
Even in cases where the court determines that a parent has committed a single act of domestic violence, even if it is not deemed to be significant, that parent must bear the burden of proving to the Court his/her fitness to be granted legal decision-making authority.
Due to what can be severe consequences for a parent in a case where domestic violence allegations are being levied against him/her, Arizona domestic violence law statutes were revised as of January 1, 2013 to include sanctions against a parent who knowingly makes false allegations of domestic violence against the other parent. Sanctions can range from being monetary in nature to loss of decision-making authority and/or parenting time rights.
Domestic Violence Help
If you, or someone you know needs help in relation to domestic violence, encourage them to contact a domestic violence hotline. A domestic violence lawyer or family law attorney can also help them to obtain an order of protection to help safeguard their physical safety. Read more on Orders of Protection >
Whether someone is a victim or accused of being a perpetrator, cases involving allegations of domestic violence are to be taken seriously. Either way, these cases are emotionally tolling on litigants and can have long-lasting legal consequences. They require a great degree of preparation and knowledge of domestic abuse law in order to be effectively litigated. Having experienced, competent legal counsel experienced with Arizona domestic violence law will provide a litigant with the best opportunity to protect the well-being of the children.
Contact us for a complimentary consultation about your situation. Call 480-240-0040.
Divorces among those 50 and older (gray divorces) have doubled in the past 20 years. We’re healthier and living longer and people don’t want to spend their senior years in an unhappy relationship. While there is a lot of living to do after 50, couples who divorce in their 50s and 60s face unique financial challenges. There is less time to regain footing when there are financial missteps. And, even when the divorce is amicable, each party needs legal representation and financial consultants to ensure they are looking realistically at their situation and have the financial security they need.
Unique Issues When Divorcing After Age 50
- Retirement: Even if couples were on track for retirement and they split their savings in the divorce, the amount often comes up short for each partner living separately. Whether you like it or not, each party has to now run their own household completely on their own in terms of monthly rent, mortgage, utilities, car payments and the like. The planned timing and lifestyle for retirement often needs to be adjusted downward. Lifestyles enjoyed prior to the split are not likely to be replicated in a post-divorce world.
- Debt: Be aware that debts obtained jointly in a marriage remain the obligation of both parties after a divorce, even if a divorce decree suggests otherwise. If one party does not honor debts, the other may be liable. It is a good idea to monitor these accounts so that you know if your former spouse is keeping up with payments. Ideally with respect to mortgages on real property, one party or the other will refinance into their own name at the time the marriage ends or within a certain time period thereafter.
- Employment: Earning potential can be limited for those 50+ re-entering the job market. It can be difficult for those who have retired, or have been out of the job market, to find gainful employment and it may be lower pay than you thought. Set realistic expectations.
- Healthcare: Medical coverage is extremely important in our later years. It’s a time when personal medical needs often grow, sometimes suddenly. While COBRA insurance from one spouse’s employer may be available to the ex-spouse for 36 months after a divorce, it can be exceptionally expensive. It’s an important time to understand the costs of an individual health care policy and it may be wise to set one up as soon as possible after divorce or even while the case is still pending. Our Scottsdale law firm can aid you effectuating this transition as smoothly as possible.
- The House: Frequently one spouse wants to keep the marital home after the divorce. But expenses go beyond the monthly mortgage payment. Maintenance, repairs, taxes and insurance must be considered and can be the difference between a comfortable lifestyle or being “house poor” or even bankruptcy. It’s important to put realities over emotion when it comes to the marital home. Often both parties are better suited to sell the marital home for cash, divide the proceeds, and restart a new life by leasing a smaller and more efficient home or apartment for the first years after the divorce is final.
- Joint accounts: It’s important to consider all joint accounts and close them or at minimum change the named beneficiary on each account. You may also want to monitor your credit for unauthorized activity. Ideally, life insurance policies should be changed while the divorce is still pending.
- Assets: Arizona is a community property state, requiring most property (other than specific exemptions) you and your spouse acquired during the marriage belongs equally to both parties. Community property can include real property, personal property, money, stocks, bonds and interest in an employer sponsored profit sharing or pension plan or individual retirement plan. Our law firm is experienced with these community property issues.
If you are pursuing a gray divorce, be sure that you are properly prepared so you can thoroughly enjoy your new life worry-free. The family law attorneys at Canterbury Law Group can help. They are well versed and experienced with the financial considerations when divorcing when you are over age 50.
Having capable legal counsel by your side can make a meaningful and direct impact on the outcome of your case.
Arrange for a complimentary consultation with one of our lawyers today: 480-240-0040.
The holidays are such an exciting time for children, but they can be tough for divorced parents. A little pre-planning, a positive outlook and good legal help (when you need it) can put you on the road to creating some very special times with your children. Here are a few tips from Canterbury Law Group in Scottsdale:
1. First, look at things from your child’s point of view. It’s not about you. Are you pushing for something to get even with your former spouse, or to make the holiday more enjoyable for your child? Your child needs to come first.
2. Plan out the details and let your children know schedules well ahead of time. It will help them feel more secure and in control. For example, if they are leaving at 9AM Christmas morning to see the other parent, tell them now so that they can be emotionally prepared for the transition that morning.
3. It’s usually best not to divide up an important day. It’s easier to take turns each year. For example Christmas eve with one parent and Christmas day with the other. Chunks of 24 hours work well. Define the exact times for visits. For example, Christmas Eve could be defined as 8AM on the 24th through 8AM on the 25th. This way you avoid misunderstandings.
- If your divorce is pending and you do not have a court order in place, your respective attorneys can work out a schedule and request an expedited motion to help you divide your holiday. Ask them to do this now.
- Don’t be afraid to start new traditions. Sometimes old ones can dredge up emotions, or are simply unmanageable for a single parent. It can be really special to make a new ornament together each year or bake cookies for the neighbors instead of cutting your own tree.
- Simplify obligations with extended family. Time should be divided evenly, not based on which parent has more family functions to attend. Be sure to communicate with grandparents and aunts and uncles in advance to avoid drama. Rushing around to see everyone and to attend every family activity can be too stressful.
- Make it easy on your children. Help them shop for your former spouse and encourage them to have a great time with them. Don’t let your child know that you’re feeling down about being alone. Remember it’s about them. They should not carry around your adult issues, those are for you to process and handle.
- Communicate with your former spouse. A brief email or a short call can help avoid duplicate gifts or two nights to view the Nutcracker. The more you and your former spouse can work together, the more likely your children will enjoy their holiday. If wounds are too fresh, use a parent coordinator to aid these communications.
- Don’t compete with your former spouse on the children’s gifts. It overindulges your child, establishes a negative pattern and can drive up debt. Teach your children the true meaning of the holiday. They will long remember the time and attention you give them, not meaningless materialism or goods.
- Be flexible with your plans. Parents can always agree to deviate from what is in the court order. For example, dad can have the kids until 10AM Christmas morning, but mom expects the same consideration next year. Have your ex agree in writing, even if it is a simple email, so these details are remembered next year.
The biggest gift you and your former spouse can give your children over the holidays is a great attitude. If you are able to look at what you have rather than what you have lost, your children will learn a lesson they can carry throughout their lives. If you need advice on navigating your holiday please contact us at 480-240-0040.
When facing the unauthorized transportation of your children across state lines, you must act immediately and without delay. You should immediately engage legal counsel to help get your children back swiftly and lawfully.
Arizona has many families that moved here from other states. Often a disgruntled spouse will want to move back to their home state when family problems surface here in Arizona. Understanding your rights and receiving competent legal advice will keep you and your Arizona children protected when this situation arises. Our law firm is well versed in not only invoking your legal rights, but also lawfully keeping your children within Arizona’s borders by court order. At Canterbury Law Group, we are dedicated to fighting for the parent’s right to enforce custody, regardless of which state a biological or former spouse lives or wants to move back to.
The Uniform Child Custody Jurisdiction And Enforcement Act (UCCJEA) establishes the legal playing field upon which your lawyers will advance your case to safeguard your family’s home state residence during your family law dispute. The UCCJEA applies when a child has lived with a parent for at least six consecutive months in one state. By law, that state is considered the “home state,” and very specific regulations apply when one party wants to move the children out of the “home state.” Conversely, if the minor child has not lived in any one state for at least six months, the court will rely on other factors in reaching the ultimate “home state” determination.
In either situation, the Court will rely heavily on UCCJEA factors in determining which state has the most significant connections with the child. The court making the determination consistent with UCCJEA will then determine which state should have exclusive jurisdiction over the matter. In turn, exclusive jurisdiction will dictate where the family law case is going to be fought, where the children are going to live during the case, and which spouse should or should not be given more favorable child custody consideration during the dissolution.
The knowledgeable attorneys at Canterbury Law Group are prepared and ready to defend your case to either establish and protect Arizona home state jurisdiction or challenge a spouse who has unilaterally fled Arizona with the children to another distant state which has no business establishing jurisdiction over your Arizona family.
In addition to Arizona, Canterbury Law Group is also actively licensed to practice law in California, Nevada and New York, which can be very helpful if your children have been unilaterally transported to those states.
Things to keep in mind when evaluating the Uniform Child Custody Jurisdiction and Enforcement Act in Arizona
- An Arizona court cannot modify another state’s child custody order unless that state has declined the right to exercise jurisdiction or has lost jurisdiction.
- Although the UCCJEA allows for interstate enforcement of Arizona custody and visitation determinations, if you or your former spouse has moved out of state, it is your right to seek modification of the initial determination to ensure that both parties have equal parenting rights after the other spouse has completed their move.
It’s also worth noting that even though the federal government has passed several laws in regard to custody issues, parental kidnapping is still the number one reason for child abductions. If you are fearful that the other parent may leave the state with your child, it is highly recommended that you contact a family law attorney immediately to obtain an order of protection from the court. If you find yourself faced with volatile custody conflicts, and your spouse is threatening to leave the state, or has already done so, the time to act is now not later. Every day that you delay can be looked down upon by the court as a reason to allow the children to remain out of state permanently. The child custody attorneys at Canterbury Law Group are well versed in the tactics and strategies best suited to recovering your children back to Arizona and litigating all further family law issues in an Arizona court of law.
While family law disputes can be varied and complex, one core truth always remains: the children should come first. It is vitally important to know your rights as a parent in a multi-state custody dispute. The child custody attorneys at Canterbury Law Group are a qualified and proven resource to navigate you through these disputes. They are committed to representing you and aiding the return of your children. If threats of your children’s removal from Arizona have occurred, you must act immediately to preserve your children’s ability to continue living in Arizona without disruption. If you are fearful that your spouse is going to relocate with your children, let us help now.
Do not sit back and speculate about what might happen, proactively engage legal counsel now to ensure that it never does. Your children belong at home, with you, in their home state, without disruption or subject to ambush and out-of-state tactics deployed by your volatile spouse.
Call for a complimentary consultation: 480-240-0040
Having relevant documents in hand upon your initial consultation can help expedite the process, however, you should by no means delay your first consultation regardless of your access to paperwork. If available, it can be helpful to bring any of the following:
- Any paperwork regarding your divorce that you were already served with; or, if this is post-divorce, your Final Divorce Decree, Property Settlement Agreement, and Parenting Plan or Custody Agreement.
- The last three years’ income tax returns, along with two recent W-2s for the most recent two years.
- Both parties’ paystubs that show year-to-date deductions and net income.
- Mortgage Statements with current balances and amount of monthly payment.
- Recent statements on 401-Ks, retirement plans, IRA’s and other high net worth assets.
- List of current credit cards with balances.
- List of all bank accounts.
- Social security number of your spouse.
- Day care expense receipts.
- Information on current health insurance costs.
If you have questions, please contact us >
The Five Stages of Divorce
Elisabeth Kübler-Ross, a pioneer in the hospice movement, first described the stages of grieving about and recovering from a major trauma such as death or divorce:
- Denial: “This is not happening to me. It’s all a misunderstanding. It’s just a midlife crisis. We can work it out.”
- Anger and resentment: “How can he [she] do this to me? What did I ever do to deserve this? This is not fair!”
- Bargaining: “If you’ll stay, I’ll change” or “If I agree to do it [money, childbearing, sex, whatever] your way, can we get back together?”
- Depression: “This is really happening, I can’t do anything about it, and I don’t think I can bear it.”
- Acceptance: “Okay, this is how it is, and I’d rather accept it and move on than wallow in the past.”
Understanding these stages can be very helpful when it comes to talking about divorce and decision making. It is important to know that when you are in the early stages of this grief and recovery process. It can be challenging to think clearly or to make decisions at all, much less to make them well. Identifying your present stage of grief and being aware of it is an important step toward ensuring that you will make the best choices you can. The divorce attorneys in our Scottsdale office will provide you both with sound legal advice and deep empathy for what you’re going through, while making these decisions.
Call for a complimentary consultation: 480-240-0040.
How To Protect Your Finances During Divorce
Some clients who visit the law firm are afraid that the instant they inform their spouse they want a divorce, their husband or wife will clean out their bank accounts, run up the credit cards and wreak havoc on their finances. While you may have heard horror stories about such behavior, no one has to take this gamble.
You can and should protect your assets by getting an attorney involved early in the divorce process, and ideally you are the first to file the divorce petition. Arizona divorce laws recognize that emotions are high when a divorce is initiated and the couple’s finances need to be protected. If you fear your spouse’s reaction to the news of a pending divorce may be vengeful (or you simply don’t want to take the risk) talk to an experienced divorce attorney before talking to your spouse.
Your attorney will file a Petition for Divorce with the court. This document notifies the court and your spouse, when served, that you want the court to end your marriage. It also lists what you are asking for, such as child custody, child visitation, child support, spousal maintenance (alimony), property division, attorney’s fees and costs.
However, the most important effect of filing for divorce is that a preliminary injunction is immediately ordered by a court of law. A preliminary injunction is a court order blocking you and your spouse from draining bank accounts, changing insurance beneficiaries, removing your name from joint accounts, changing property ownership, taking the children out of state, or any other action that can do harm to the other party. The injunction goes into effect the moment the petition is personally served on the opposing party. By being immediately blanketed by the court’s mandated injunction, volatile spouses are lawfully prevented from seeking to backdoor the community assets, or to seize or hide community property.
If your spouse elects to violate the injunction, they alone will be held responsible for their actions and subject to immediate sanctions by the court. On the other hand, if you tell your spouse of your intentions to leave him or her before a Petition is filed and an injunction is ordered, nothing prevents that spouse from racking up credit card charges to spite you, or raiding the bank accounts. While it may seem ruthless to talk to an attorney before your spouse does, it is a prudent choice that legally protects assets for both parties and prevents game playing, bullying and one-upmanship by the other spouse.
Call for a consultation: 480-240-0040.
Physicians, dentists, lawyers, CPAs, architects and other private practice professionals in Arizona should seriously consider retaining specialized legal advice when evaluating or pursuing divorce.
Licensed professionals with substantial assets can place their business, future earning potential and financial security in jeopardy when ending a marriage without adequate consideration, planning and protection strategies.
A Professional Practice is a Community Asset
Under Arizona law, a working professional’s business or practice is frequently deemed a “community asset” subject to ownership claims invoked by the opposing spouse. When the practice was launched and how it has performed financially during the marriage, will be key issues examined by the family court in evaluating any property settlement or spousal support award. Extraordinary evidence is typically required to completely take control of your private practice without any payment to your spouse for its present value. However, that is not to say that other strategies and tactics cannot be relied upon to advance your case in the most compelling light to maximize and protect what is rightfully yours during marital dissolution.
- Whether the business was formed before marriage or after
- If one spouse supported the other through medical school or graduate school
- Whether one spouse put a career on hold to support the other in building his or her practice
- Trended earnings and capitalization of the practice over the past 12, 36 or 60 months
Complex Evaluations of the Business are Key
Private practice evaluations are material components of divorce litigation and unguided professionals often resist providing the financial information needed for an accurate evaluation.
The firm frequently brings in proven business valuation specialists, forensic accountants and third party investigators to help safeguard clients’ financial interests whether they are owners, or the spouse of an owner, of a business or professional practice.
Choose Attorneys With Business Acumen
Whether you own, or are married to an owner of family business, a medical doctor practice, alternative medicine practice, specialized physician, dentist, lawyer, attorney partnership, group practice, clinical practice, affiliated licensee, general or limited partnership, our firm is uniquely positioned to navigate you through the pre-filing strategy, evaluation, valuation and allocation during the marriage dissolution process.
If you and your family have achieved a high net worth in your lifetime, chances are it did not come easily.
You worked hard, put in long hours, traveled for work, educated yourself, encountered sleepless nights, and missed your kids’ baseball games. You made many sacrifices to build your wealth and needless to say, dividing up your estate during the divorce is no easy task.
On the other hand, if you are the spouse married to a high net worth individual, you likely stayed at home and sacrificed your own career to raise the children. This sacrifice made it possible for your spouse to dedicate their time to building the family wealth. For you, getting divorced not only is unpleasant but also threatens your literal survival. You are entitled to your portion of the marital assets, and the law states that you should be able to maintain a standard of living established during the marriage while you rebuild your own affairs and generate your own future earning capacity.
The larger the estate, the more complex the issues become.
Careful and reasoned analysis is required prior to distributing marital assets. This also holds true regarding initial investment decisions once you are divorced and have received initial wealth distributions. Individual circumstances, the value and marketability of the assets and, of course, tax consequences must be carefully considered before each investment decision.
In many cases a forensic accountant will be brought in to ensure all assets are properly identified and valued. This is important to ensure accurate wealth distribution decisions are made. Formal court supervised discovery is one of the most important tools relied upon to identify, value and distribute the community assets. As a high net worth individual with diverse holdings across many asset classes, this task can take a significant amount of time and resources.
Be wary about assets that were purchased as tax shelters or tax deferral vehicles. There may be significant delayed tax liabilities associated with these assets. Such tax liability may be difficult to ascertain and may require an indemnification provisions in the dissolution agreement.
You may have investments where you receive a limited partnership interest and reduced risk. These investments can range from real estate to business investments to collectibles. As an investor, your return can vary greatly and will affect its present value. Value determinations may include consulting the secondary market which buys and sells limited partnership interests. Comparing transactions similar to yours may be a good indication of the fair market value of the limited partnership interest and how it should be structured within the context of a marital dissolution.
Other investments such as venture capital funds, angel investments and subordinated debt must also be valued. The value of each investment will depend on the risk and potential reward, including:
- Type and class of investment
- Amount invested originally and subsequent investments or distributions
- Ownership percentages
- Investment time horizon
- Projected returns both in IRR and cash-on-cash
- Future obligations or anticipated capital calls
- Probability of achieving expected returns
- Current status of project and time line to reach investment goal
- Rights of investor – does the investment include voting rights
- Ownership transfer restrictions
- Liquidity if compelled to sell investment immediately
- Status of government approvals, permits and authorizations
- Governing provisions of underlying partnership agreements
- Offers to buy or sell ownership interests in the entity
- Other investment exit strategies and deferred sale options
Once there is an understanding of the full investment picture and its value, you and your attorney and advisors must assess the available options to determine the appropriate liquidation and distribution methods that achieves the highest value for all parties. For most investments, an individual has two options when determining his or her future with the investment.
The in-kind approach distributes the investment based on equitable percentages and values. This option requires the actual ability to divide the asset, an intimate understanding of the investment and its risk as well as mutual confirmation that the parties have the financial strength to forego immediate liquidity.
The “buy-out” option distributes the investment based on its current value. This method requires a current valuation or appraisal. Valuation methodology, tax impacts and other factors are a material part of this process.
Each spouse’s election to distribute community assets based either on the buy-out or the in-kind distribution method should be carefully analyzed on a case-by-case basis. Our Scottsdale family law firm is well versed in providing clients with a variety of scenarios to choose the highest and best path toward community distribution which then allows the divorce decree to become final.
The more common approach is the buy-out option, which distributes the asset based on experts’ opinions of current market value. This option is often preferred by the court systems because it eliminates an ongoing relationship between you and your ex with regard to the asset, which decreases the chance of problems in the future. While the “buy-out” method may eliminate future disputes with that particular asset, it also generates new problems which need to be handled today in reaching resolution on that asset’s buy-out value today. The focus now becomes current market valuation and there is not always an easy way to determine the value of a private equity investment. In some instances, it may be inequitable to force a current buyout where the potential return on investment is high but too speculative to determine at that particular point in time.
While every situation is different, it is important to select attorneys who are both experienced and well-versed in high net worth dissolution matters. The attorneys at Canterbury Law Group have deep financial and business backgrounds which bring crucial skills to the negotiation table when dividing high value community assets during marriage dissolution. The choices you make today can and will affect you and your children’s security for years to come. Having an experience, informed and talented attorney at your side to advance your financial interests during your family law dispute is a critical first step in achieving your desired goals.
In Arizona, real property acquired during a marriage is typically considered community property and will be equitably divided during divorce. This includes the marital primary residence, vacation homes, investment properties, raw land, and real property acquired in other states and foreign countries. As always, there are exceptions under which real property may be deemed sole and separate property if the property was acquired:
- Before the marriage
- As a gift or inheritance
- With sole and separate funds
- Excluded in a premarital agreement
- After a legal separation or service of a divorce petition
After you account for all joint property, the collective real estate values are validated through formal appraisals or broker opinions of value depending on the amount at stake. Each property has a vested title, which will indicate how each property is legally held: sole and separate, community property, community property with right of survivorship, joint tenancy or tenants in common.In addition, each property may have deeds of trust, with mortgage debt balances owed to third parties. Entry of a divorce decree does not relieve the parties of jointly held real property debts. To the contrary, both parties remain jointly and severally liable on the real property debt until the debt is refinanced by the spouse taking the property, or when the property is sold.
To determine your real estate asset values, calculate the fair market value less any mortgages and other liens recorded against the property. In today’s still recovering real estate market, some properties are under water meaning the real estate has negative equity. Free online resources such as Trulia.com and Zillow.com are good starting points for establishing a rough concept of today’s market value.
After you have a sense on valuations, talk with your attorney about how you perceive a fair way to divide the real estate in your case. One party may prefer to keep the marital home, whereas the other is willing to relocate upon payment for their ‘half’ of the value of the marital home. Some couples lack sufficient cash to allow either spouse to stay in the marital home which often requires a sale of the marital home and sharing of all cash proceeds after mortgages are paid off. One of the most important factors determining whether a spouse can ‘keep the house’—is if that remaining spouse can independently refinance the home in his or her own name so that the departing spouse is protected from any future mortgage defaults. If the “keep the house” spouse cannot qualify for a new mortgage, the house will likely have to be sold at market value with net proceeds equally divided after commissions and costs are paid.
Alternatively, when couples own two or more properties, they may decide to distribute their real estate “in kind”by having each spouse keep some of the properties. Ideally, the real estate should be refinanced and put in each individual’s name in order to release the other spouse from the prior mortgages. If a spouse defaults on a joint mortgage obligation, a lender can foreclose on the property and attack the credit of both parties who were previously married. It’s important to include a set time deadline in the Divorce Decree for refinance which allows the other party to enforce the Decree before the court should the other party fail to refinance as promised.
In conclusion, both husband and wife should consult individually with an attorney to discuss the marital home, investment properties, titles, secured debt, and equity in their various real estate holdings before deciding how best to advance the case in a marital dissolution proceeding.
Canterbury Law Group can help you navigate complex real estate issues in divorce. The firm has an extensive background in real estate law and members of the firm serve as Real Estate Expert Witnesses and are active members of the Forensic Expert Witness Association.
The firm’s real estate experience is so deep that other lawyers hire the firm to consult on real estate matters in their cases. Attoney Craig Cherney has testified at depositions and at trial regarding a host of complex real estate issues. He has co-managed a large private equity real estate fund overseeing hundreds of millions in equity. Mr. Cherney will be armed and ready to resolve your family’s real estate holdings in a way that achieves the highest recovery, at the lowest expense, as he advances your matter toward final decree.
Arrange for a complimentary consultation today: 480-240-0040.
Child support awards in Arizona are governed by the Arizona Child Support Guidelines. In many cases, a strict application of the guidelines is appropriate. Once the basic information needed to calculate child support has been obtained and the parenting plan has been established, then child support can be calculated using the state-mandated formula.
However, even with the Child Support Guidelines in place, calculating an appropriate and fair amount can be an extremely complicated issue. For example, determining a parent’s income may not be a straight forward process. This is often the case where one or both parents are self-employed. In this event, the attorney will need to conduct a close examination into business accounting records and income tax returns to establish an income figure that takes onto account any “perks,” benefits, and personal expenses that may be causing the business owner’s income to appear lower than it actually is.
Also, when child support is calculated, it is not uncommon for one parent to be unemployed at the time. Generally, at least an income of minimum wage for full-time employment will be attributed to a parent who is not earning an income. Further, a parent who is not employed and/or underemployed may have income attributed to him or her, based upon earning history and/or ability. In order to resolve this issue, the court will look at the reasons for unemployment. If the court deems the circumstances to be reasonable (perhaps a parent returning to full-time schooling which will enhance his/her earning capacity to the children’s benefit), then the court may choose to be lenient when attributing income to that parent.
There are also cases where an application of the Child Support Guidelines using the formula calculation is inappropriate. If a parent’s monthly income is substantial, the child support formula will not take this into account beyond a certain level, leaving a substantial disparity between the parents’ respective financial ability to provide for their child. If this is the case, after considering certain factors, the court may elect to deviate from a strict application of the formula set forth in the Arizona Child Support Guidelines.
Even after a child support amount is awarded at the conclusion of a divorce, this amount can be modified in the future, if any of the factors and circumstances used to initially calculate child support sufficiently change. For example, if the original child support amount was calculated including costly day care expenses and the child then begins public schooling at no cost, the absence of this substantial expense could significantly impact the child support calculation.
Upon divorce, many parent’s financial well-being will rely on a child support amount that has been awarded to him or her. These funds can be crucial for the family to survive. It is important for any parent to have access to legal advice from an experienced and knowledgeable family law attorney in order to assure that the Arizona Child Support Guidelines are fairly and accurately applied to each and every unique situation.
Please call or contact us for a Consultation: 480-240-0040.
What is the divorce process?
Divorce is a major life-changing event and can be devastating and traumatic for a family. If there are children involved, the divorce can have profound impacts on them, which they will carry with them their entire lives. However, if a divorcing spouse has a basic understanding of what the divorce process in Arizona will entail, he/she will likely feel a sense of comfort and be able to pass that on to the children.
A divorce action is commenced in Arizona upon the filing of a Petition for Dissolution. The Petition will include the filing spouse’s general positions relative to custody, division of assets and debts, financial support and attorney fees. The Petition for Dissolution must then be served upon the other spouse, who will have 20 days to file a Response.
Once the initial pleadings have been filed, the next phase of a divorce begins. During the discovery phase, both spouses are required to disclose certain documentation that can be reviewed by the attorneys in order to make an assessment of what assets and debts exist and their respective values. In addition, formal discovery requests may be issued in this phase. Again, responses to discovery requests are primarily utilized by the attorneys to make an assessment of what and how assets and debts should be divided between the spouses. The discovery phase may also include depositions and requests for documentation issued directly to third parties.
How long does a divorce take?
In Arizona, a divorce can take anywhere from six months to one year to complete. This can be a difficult and unstable time for families because there are not yet orders in place relative to contact with the children, financial support and temporary possession of certain assets, including vehicles and the marital residence. Therefore, a spouse who needs assistance with these issues during the divorce process can file a Motion for Temporary Orders. Once this motion is filed, temporary orders can typically be issued by the court within 60-90 days and will stay in place until final orders are issued by the court or agreed upon between the spouses.
Once the discovery process has been completed, then the attorneys and spouses can engage in settlement negotiations. There are several methods that can be used to negotiate and, hopefully, resolve a matter without costly, time consuming and emotionally tolling litigation. Depending on the facts and complexity of the matter, settlement negotiations can take place in correspondence between the attorneys, an in-person mediation through the court or during a private mediation. In the event that the spouses are able to negotiate an agreement, then the agreement will be incorporated into a final Decree of Dissolution, Property Settlement and Joint Parenting Plan.
In cases where the spouses are unable to resolve some or all of the issues, it will be necessary to attend a trial where the judge will hear testimony from witnesses and review evidence. Ultimately, the court will issue the final orders for any matters that the spouses were unable to resolve amongst themselves. Once a trial is completed, the judge has up to 60 days to issue a ruling that sets forth the final orders. In some cases, the judge’s ruling is the final Decree of Dissolution. In other cases, the court directs one of the attorneys to draft a Decree of Dissolution that incorporates the rulings.
Whether a divorce case settles or proceeds to trial, it is critical to have an experienced attorney on your side who can protect your rights and advise you as to what you may be entitled to under Arizona law.
If you have questions, please call for a complimentary consultation: 480-240-0040.
One of the biggest concerns of divorcing couples is timing and cost. While every case is different, there are some general cost ranges which can be projected depending on a couple’s assets and whether there are children. The good news is that as one of the two parties to the divorce, you can control the expenses and costs based on the decisions you make. However, you cannot control the actions of your spouse, opposing counsel, or the judge. This article examines a collection of typical divorce cases, and explains what the anticipated expenses incurred in each case will be. In the end, you can be the greatest driver of how much the dissolution proceedings will cost and there are many methods to help keep costs down.
The cost of highly contested high net worth divorces – The worst case situation.
In a worst case situation, where there are significant assets, family businesses, large income streams, children, and the case is heavily contested by both parties, and attorneys are engaged in extensive discovery exchanges and protracted litigation, legal fees can easily ramp from $50k to $100K+ per side. In these high net worth maritial dissolutions, some parties will often pursue very aggressive legal tactics and fight each and every possible issue as a way to punish the other side and drive up legal fees.
These cases are the exception, however, and not by any means the norm. Moreover, simply because you are a wealthy couple does not automatically require that you spend this amount of money on your divorce.To the contrary, high net worth individuals who are willing to cooperate on most issues can certainly reach a final divorce decree for far less than $50,000.
Couples divorcing with significant assets, incomes and children – The mid-range divorce cost estimate.
For couples with somewhat smaller asset bases, one primary earner and the usual child custody issues, average divorce costs will trend lower. Assuming both parents have hired lawyers who then conduct contested pretrial discovery, which culminates in a live evidentiary trial on the merits before a state court judge, costs will range from $25,000 to $50,000 per side. Again, the more one party or lawyer digs in on certain issues, the longer the duration of the case, and the higher the costs will trend.And the reverse is true as well: the more you and your lawyer are willing to compromise on issues, the lower your final expenses and costs will be in finalizing the divorce and moving on with your life.
The good news is that most divorces are not anywhere near this expensive. In fact, if there are no children, the costs will drop even more.
Couples divorcing with modest assets and children – The most common divorce cost estimate.
Assuming both spouses have decent employment histories and a modest asset base, which includes the marital home, a few cars and retirement accounts, a divorce under those circumstances can usually be completed for $7,500 to $20,000 per side. Again, having no children dramatically reduces the amount of issues that either party can contest. But even if children are in the mix, it does not necessarily mandate that the expenses must be driven higher. These cases really come down to a close examination of what either party has earned, or can earn in the future—and then fairly splitting all remaining community and real property on a 50/50 basis. Sometimes this requires the sale of the marital home, or liquidation of certain investments or accounts. No two cases are the same, which is why having your own lawyer is preferred so that you know your rights and assets are being properly and fairly divided between you and your former spouse.
Cost of uncontested divorces or couples with limited assets – The best case situation.
Finally are the divorces which are relatively clean and simple. Both parties want out. Both parties are eager to resolve things quickly and with relative ease. In these cases, there are limited legal issues because there may be limited assets, just one child, or no children.With fewer assets to evaluate and split, even with lawyers on both sides, resolution can be reached for as little as $3,500 to $7,500 dollars per side. Again, as one of the spouses pursuing the divorce—your decision to dig in and fight, or let things go, as the case moves forward, will be the key driver or containment factor on fees and expenses.In some situations, where there are almost no contested issues and the two spouses can agree to settle all issues without court hearings or a live trial, the final expenses can certainly be less than $3,500 per side.
Important considerations in controlling divorce costs and timing…
Every divorce starts and eventually ends regardless of the time and money spent.Regardless of how your case advances, keep your eye on the end game: securing your Divorce Decree and, if there are children, a Joint Parenting Plan.Both of these documents are binding court orders, signed by a judge and enforceable by either party for years to come.In the end the expenses and bills will be a distant memory, but the Decree and Joint Parenting Plan will impact you for years ahead, and those documents and final judgments should be taken seriously.Getting a divorce is not the time to “wing it” or feel your way through this complex legal process. Having competent legal counsel on your team is critical and is no different than hiring a dentist to resolve your teeth issues or engaging a licensed physician to aid your health.In a divorce, the licensed attorney is there to help you unwind and exit a failed marriage, ideally with your assets, your children and life substantially intact at the lowest cost allowed by your particular case.
Contact us for a complimentary consultation about your divorce: Call 480-240-0040.