Another post by William Bishop, Arizona Family Law Attorney:
One of the biggest issues that we have been seeing the last few years is situations where the parties' in a divorce are upside down on their home. Sometimes the parties continue to own the home together with the person residing in the home paying at least the rental value of the home for living there, with the remaining sum divided equally or proportionate to income. If you are doing a short sale, make sure that you receive non-recourse provisions in your documents with your lenders. If you have a second mortgage, you may have to pay something to get a waiver of any deficiency sums. Otherwise, the second mortgage lender may still come after you. The same is true with a foreclosure - if the first mortgage lender does a trustee's sale, the second mortgage lender's deed of trust would be no good, but they could still file a suit against you. There are also potential tax consequences. If it is a purchase money note and the foreclosure regards your primary residence, there is no tax consequences. However, if a second mortgage or other loan is not to purchase the residence, there could be potential tax consequences associated with a foreclosure or short sale. We are not experts in this area, and are only providing this information so that you are aware of the issues. We will be happy to refer you to an attorney who we associate with regarding these issues for more information.
Friday, December 10, 2010
New Child Support Guidelines On Hold
It sounds like the new Child Support Guidelines are on hold. Under the new child support guidelines, there would have been some substantial changes in the child support orders in Arizona. This would have especially been true with regard to higher income payors. Based upon information received from the source of one of the drafters of the new guidelines, such have been shelved. Instead, we expect a modest increase in child support per inflationary factors, but the basic child support computations will be the same. This is good news for the higher income payors, and could be bad news for the lower income receipients.
Sunday, May 30, 2010
How Do You Minimize Your Attorneys Fees?
One of the methods to control or minimize your attorneys fees is to look at the prospect of something less than full representation.
Different Types of Representation:
One of the more difficult questions a new client will inevitably ask is "how much is my case going to cost?". Although attorneys may be able to make some educated estimates as to a range of fees, it is like looking into a crystal ball to determine up front what a persons fees will be. Almost all family law firms charge on an hourly basis for the reason that the attorney often cannot determine at the onset of the case whether the case is going to settle early on, settle later in the case after extensive discovery and litigation, or proceed to trial.
At our firm, we provide several potential levels of assistance and representation. Our pay as you go services allows self represented parties to avoid paying a retainer fee, and to obtain our consultation services and assistance with regard to specific matters - i.e. such as the preparation of initial dissolution documents, final dissolution documents, joint pretrial statements, and advice regarding trial preparation and presentation.
The next step up is consultation representation. This is appropriate for persons who desire more contact with the attorney, but still wants to represent themself. We can essentially perform all services for the client with the exception of Court proceedings themselves. If it appears that a case should settle without the need for full representation, we generally recommend that the client retain our firm on a consultation basis for a much lower retainer fee (generally between $1500 and $2000). If it appears later that a settlement is not going to be reached, the client can always change to full representation.
The firm can also provide "Limited Scope Representation". This means that we are only hired to represent a client regarding a very specific matter while the client continues to represent themself regarding any remaining matters. One example would be a case where a person has ongoing parental conflict - we may limit our representation to merely filing a motion for the appointment of a parenting coordinator. A smaller retainer fee would be required for this type of representation, as opposed to full representation.
Full representation means that we represent that parties in all aspects of their case. This generally requires a higher retainer - anywhere from $3000 - $10,000 depending upon the complexities of the case. Any unsued portion of the retainer is returned to the client at the conclusion of the representation under all of our levels of representation.
How Do I Save $ on Attorneys Fees?
One of the things that I tell my clients to help them save attorneys fees is to try to use email instead of the phone to discuss issues with their attorney to the extent possible. A follow up phone conference may still be necessary, however, the use of email communications will still likely save the client fees. By sending an advance email regarding the issues the client wants to discuss with the attorney, the client has an opportunity to organize his and her thoughts in advance. At the same time, it provides the attorney with a heads up regarding the issues the client wants to discuss. If the attorney knows in advance what the client wants to discuss, the attorney can determine whether he or she needs to read the file before talking to the client, whether the attorney needs to read only the portions of the file, or whether a file review is necessary at all. Otherwise, the attorney may feel the need to read the entire file before talking to the client to make sure that he or she can answer any questions that may arise. In addition, through email communication, the client can ensure that all information has been presented to the attorney. It makes little economic sense to pay an attorney to frantically take notes as a client jumps from issue to issue in no apparent chronological order. Thus, if a client organizing his or her time-lines and relevant facts in advance, such will undoubtedly save substantial attorneys fees.
Although not all clients have all financial information regarding the community assets and debts, those that do can save fees by providing all such information to the attorney at the outset of the case. Thus, the attorney may determine that discovery to the other party is not necessary if the client already has all of the necessary information. Our firm provides a standard letter and forms to all of our clients in divorce cases to assist them with this process.
Divorce cases are often very emotional, and it can be difficult accepting advice when it is contrary to a person's instincts and emotions. That being said, the most significiant way to save attorneys fees is by carefully listening to the attorney's advice regarding likely outcomes at court, and following such advice as often as possible. This does not mean that you have to agree with your attorney at all times. However, a good attorney should provide advice regarding what battles should be fought, and what battles should not. There are times to settle, and times to go to Court. One should always keep the amount of attorneys fees in mind when proceeding through litigation. It makes no sense to pay $1000 in attorneys fees to argue over a $500 issue.
Different Types of Representation:
One of the more difficult questions a new client will inevitably ask is "how much is my case going to cost?". Although attorneys may be able to make some educated estimates as to a range of fees, it is like looking into a crystal ball to determine up front what a persons fees will be. Almost all family law firms charge on an hourly basis for the reason that the attorney often cannot determine at the onset of the case whether the case is going to settle early on, settle later in the case after extensive discovery and litigation, or proceed to trial.
At our firm, we provide several potential levels of assistance and representation. Our pay as you go services allows self represented parties to avoid paying a retainer fee, and to obtain our consultation services and assistance with regard to specific matters - i.e. such as the preparation of initial dissolution documents, final dissolution documents, joint pretrial statements, and advice regarding trial preparation and presentation.
The next step up is consultation representation. This is appropriate for persons who desire more contact with the attorney, but still wants to represent themself. We can essentially perform all services for the client with the exception of Court proceedings themselves. If it appears that a case should settle without the need for full representation, we generally recommend that the client retain our firm on a consultation basis for a much lower retainer fee (generally between $1500 and $2000). If it appears later that a settlement is not going to be reached, the client can always change to full representation.
The firm can also provide "Limited Scope Representation". This means that we are only hired to represent a client regarding a very specific matter while the client continues to represent themself regarding any remaining matters. One example would be a case where a person has ongoing parental conflict - we may limit our representation to merely filing a motion for the appointment of a parenting coordinator. A smaller retainer fee would be required for this type of representation, as opposed to full representation.
Full representation means that we represent that parties in all aspects of their case. This generally requires a higher retainer - anywhere from $3000 - $10,000 depending upon the complexities of the case. Any unsued portion of the retainer is returned to the client at the conclusion of the representation under all of our levels of representation.
How Do I Save $ on Attorneys Fees?
One of the things that I tell my clients to help them save attorneys fees is to try to use email instead of the phone to discuss issues with their attorney to the extent possible. A follow up phone conference may still be necessary, however, the use of email communications will still likely save the client fees. By sending an advance email regarding the issues the client wants to discuss with the attorney, the client has an opportunity to organize his and her thoughts in advance. At the same time, it provides the attorney with a heads up regarding the issues the client wants to discuss. If the attorney knows in advance what the client wants to discuss, the attorney can determine whether he or she needs to read the file before talking to the client, whether the attorney needs to read only the portions of the file, or whether a file review is necessary at all. Otherwise, the attorney may feel the need to read the entire file before talking to the client to make sure that he or she can answer any questions that may arise. In addition, through email communication, the client can ensure that all information has been presented to the attorney. It makes little economic sense to pay an attorney to frantically take notes as a client jumps from issue to issue in no apparent chronological order. Thus, if a client organizing his or her time-lines and relevant facts in advance, such will undoubtedly save substantial attorneys fees.
Although not all clients have all financial information regarding the community assets and debts, those that do can save fees by providing all such information to the attorney at the outset of the case. Thus, the attorney may determine that discovery to the other party is not necessary if the client already has all of the necessary information. Our firm provides a standard letter and forms to all of our clients in divorce cases to assist them with this process.
Divorce cases are often very emotional, and it can be difficult accepting advice when it is contrary to a person's instincts and emotions. That being said, the most significiant way to save attorneys fees is by carefully listening to the attorney's advice regarding likely outcomes at court, and following such advice as often as possible. This does not mean that you have to agree with your attorney at all times. However, a good attorney should provide advice regarding what battles should be fought, and what battles should not. There are times to settle, and times to go to Court. One should always keep the amount of attorneys fees in mind when proceeding through litigation. It makes no sense to pay $1000 in attorneys fees to argue over a $500 issue.
Monday, April 12, 2010
Premarital Agreements in Arizona - Are you planning for divorce?
A Premarital Agreement is not a plan for divorce in my opinion. One of the biggest reasons for divorce are financial issues. A premarital or postmarital agreement can address all or some of these issues, thus leaving limited or no issues for dispute.
Although not all people getting married need a premarital agreement, it is a good idea to look into your options and educate yourself prior to getting married. A premarital agreement addresses what happens financially in the event of a divorce as opposed to leaving it up to complex and sometimes ambiguous legal principles which the bride and groom may have no idea about when they are married.
What happens if you do not have a premarital agreement? Once you are married, you have essentially entered into a financial agreement without knowing what it is - i.e. years and years of statutes and Arizona case decisions supposedly tell us how assets and debts are to be divided upon divorce. The problem is that such case decisions are often confusing, inconsistent with one another, and provide layers and layers of exceptions and arguments that can be made. Such can lead to very expensive litigation in the event of divorce.
A premarital agreement may not be important for two people that are getting married in their early 20s, have no children from prior marriages or relations, have not already started a business, and are essentially starting from ground zero together. However, for people who have an established business, pre-marriage sole and separate property, have children from prior marriages and other circumstances, a premarital agreement may make a great deal of sense.
A premarital agreement should not be viewed as a plan for a divorce. Rather, such makes good common sense. By entering into a premarital agreement, you are merely deciding up front what makes sense to you financially in the event of divorce as opposed to leaving things up to the Courts. A premarital agreement places perspective on people's existing financial situations going into the marriage, and ensures that if a divorce does take place, that the finances are addressed fairly based upon what the parties decide makes sense at the time they are married. By doing so, and if the parties do later divorce, such divorce can be much simpler and much less expensive.
Although not all people getting married need a premarital agreement, it is a good idea to look into your options and educate yourself prior to getting married. A premarital agreement addresses what happens financially in the event of a divorce as opposed to leaving it up to complex and sometimes ambiguous legal principles which the bride and groom may have no idea about when they are married.
What happens if you do not have a premarital agreement? Once you are married, you have essentially entered into a financial agreement without knowing what it is - i.e. years and years of statutes and Arizona case decisions supposedly tell us how assets and debts are to be divided upon divorce. The problem is that such case decisions are often confusing, inconsistent with one another, and provide layers and layers of exceptions and arguments that can be made. Such can lead to very expensive litigation in the event of divorce.
A premarital agreement may not be important for two people that are getting married in their early 20s, have no children from prior marriages or relations, have not already started a business, and are essentially starting from ground zero together. However, for people who have an established business, pre-marriage sole and separate property, have children from prior marriages and other circumstances, a premarital agreement may make a great deal of sense.
A premarital agreement should not be viewed as a plan for a divorce. Rather, such makes good common sense. By entering into a premarital agreement, you are merely deciding up front what makes sense to you financially in the event of divorce as opposed to leaving things up to the Courts. A premarital agreement places perspective on people's existing financial situations going into the marriage, and ensures that if a divorce does take place, that the finances are addressed fairly based upon what the parties decide makes sense at the time they are married. By doing so, and if the parties do later divorce, such divorce can be much simpler and much less expensive.
Friday, February 5, 2010
Child Support Deviations / Possible Changes To The Child Support Guidelines
Arizona Family Law judges are becoming more and more accustomed to and open minded to child support deviations. A child support deviation is where the Court grants a different child support amount than what the Child Support Guidelines provide for in the standard calculations.
Such deviation may result in a higher or lower child support obligation than what would otherwise result from a standard Guidelines calculation. Section 20 of the Arizona Child Support Guidelines provides that a Court may deviate from the Guidlelines if such is in the children's best interests and after assessing other relevant factors. The parties' respective standards of living may be signficiant to such analysis. For example, a person may have a higher standard of living because of contributions from a parent, because of signficant property interests, or because they have become remarried. Although a new spouse's income is not included for purposes of the child support calculation, such may be relevant to the standard of living in the household which may lead to a reduction / deviation of the other person's child support obligation. A person may request a higher child support award if they have a lower standard of living, or if the child has special needs that cannot be met through the parent's income and resources.
The Child Support Guidelines are reviewed every four years. Although there have not been substantial changes in the Guidelines for many years, there are current proposals that may substantially effect the amount of child support where one of the parents earns substantially more income than the other parent, i.e. in some cases almost tripling the child support obligation. Such proposal is supported by some as a great method to ensure the spouse with less resources can provide a more equitable standard of living for the children, while such proposal is contested by others as unfairly penalizing the higher earning spouse. We will keep you posted on this blog regarding if and when such change takes place.
Such deviation may result in a higher or lower child support obligation than what would otherwise result from a standard Guidelines calculation. Section 20 of the Arizona Child Support Guidelines provides that a Court may deviate from the Guidlelines if such is in the children's best interests and after assessing other relevant factors. The parties' respective standards of living may be signficiant to such analysis. For example, a person may have a higher standard of living because of contributions from a parent, because of signficant property interests, or because they have become remarried. Although a new spouse's income is not included for purposes of the child support calculation, such may be relevant to the standard of living in the household which may lead to a reduction / deviation of the other person's child support obligation. A person may request a higher child support award if they have a lower standard of living, or if the child has special needs that cannot be met through the parent's income and resources.
The Child Support Guidelines are reviewed every four years. Although there have not been substantial changes in the Guidelines for many years, there are current proposals that may substantially effect the amount of child support where one of the parents earns substantially more income than the other parent, i.e. in some cases almost tripling the child support obligation. Such proposal is supported by some as a great method to ensure the spouse with less resources can provide a more equitable standard of living for the children, while such proposal is contested by others as unfairly penalizing the higher earning spouse. We will keep you posted on this blog regarding if and when such change takes place.
Friday, October 23, 2009
PROGRESS IN ARIZONA REGARDING CUSTODY EVALUATIONS AND RECOMMENDATIONS
There have been some recent very substantial developments in the Arizona family court regarding mental health assessments that do not rise to the level of a full (and costly) custody evalution. Due to Court cut backs, Parenting Conferences through Conciliation Services are no longer available. Such are being outsourced to private mental health providers. I do not have a huge problem with this since at least some of the the Conciliation Services reports seemed to provide recommendations without sufficient facts and input. This sometimes led to additional litigation which cost more than a real custody evaluation would have cost in the first place.
Many of the mental health providers on the roster are very competant and in my opinion generally provide more valid recommendations than Conciliation Services did. The private mental health providers can do Parenting Conference reports, however, these are now limited to just "considerations". I have a problem with this as I think that a Judge can misinterpret "considerations" as recommendations. To me, Parenting Conferences now have very limited utility, other than maybe providing for an interview of the minor children. Other options include LimitedFamily Assessments and Parenting Consultations. Limited Family Assessments can provide for recommendations, but will be more tailor made to the specific facts, thus eliminating some of the costs of a full custody evaluation. For example, most psychologists conduct MMPI examinations when conducting full custody evaluations. However, I have seen few evaluators or Courts pay much attention to MMPI examination impressions. Most Limited Family Assessments will probably eliminate the MMPI examination.
Much of these changes have resulted from new legislation whereby complaints against a mental health provider appointed by the Court must go through the judge. The judge will decide if the complaint has merit. If the judge does not make such determination, the complaint stops there and is not forwarded to the supervisory board. Mental health professionals thus no longer need to provide super comprehensive evaluations to cover their b*tt to avoid the possiblity of a complaint. In more involved cases, Limited Family Assessments will likely cover the major issues that would be addressed in a custody evaluation report minus the fluff (such as personal history chronologies that have little relevance). In some cases, a full custody evaluation may be recommended by the mental health provider. However, it appears that major steps have been taken to provide these services at a more reasonable cost, and without the necessity of 90 page custody evaluation reports.
Many of the mental health providers on the roster are very competant and in my opinion generally provide more valid recommendations than Conciliation Services did. The private mental health providers can do Parenting Conference reports, however, these are now limited to just "considerations". I have a problem with this as I think that a Judge can misinterpret "considerations" as recommendations. To me, Parenting Conferences now have very limited utility, other than maybe providing for an interview of the minor children. Other options include LimitedFamily Assessments and Parenting Consultations. Limited Family Assessments can provide for recommendations, but will be more tailor made to the specific facts, thus eliminating some of the costs of a full custody evaluation. For example, most psychologists conduct MMPI examinations when conducting full custody evaluations. However, I have seen few evaluators or Courts pay much attention to MMPI examination impressions. Most Limited Family Assessments will probably eliminate the MMPI examination.
Much of these changes have resulted from new legislation whereby complaints against a mental health provider appointed by the Court must go through the judge. The judge will decide if the complaint has merit. If the judge does not make such determination, the complaint stops there and is not forwarded to the supervisory board. Mental health professionals thus no longer need to provide super comprehensive evaluations to cover their b*tt to avoid the possiblity of a complaint. In more involved cases, Limited Family Assessments will likely cover the major issues that would be addressed in a custody evaluation report minus the fluff (such as personal history chronologies that have little relevance). In some cases, a full custody evaluation may be recommended by the mental health provider. However, it appears that major steps have been taken to provide these services at a more reasonable cost, and without the necessity of 90 page custody evaluation reports.
Wednesday, September 23, 2009
Welcome
DISCUSSION TOPICS:
THE COURTS OFTEN DO NOT ALLOW ENOUGH TIME FOR TRIAL
IS YOUR ATTORNEY ON TOP OF YOUR CASE?
Good morning and welcome to our blog. If you are reading this blog, there is a good chance that you are going through a very difficult time in your life - whether it is a potential divorce, or other family law litigation. The first issue I thought that I would discuss is the limited time available for trial in family law cases. This is one of the largest obstacles that family law attorneys face. Our clients often may have numerous and factually (and sometimes legally) complex issues. A three hour trial (or even a full day trial) is often simply not enough to present all of the relevant facts in a case. While a party in a civil or criminal case may get a 2 week or longer jury trial to present far less complex issues, family law cases are rapid and sometime feel like a war zone. As you are probably already aware, Arizona (and almost all other states) do not have jury trials in family law cases. Rather, the judge decides all issues. This can be very nerve racking when you only have a very short amount of time to present your case, and the judge is making credibility issues which may impact your children or may have substantial financial consequences.
One of the things that a good family law attorney needs to do is map and stratagize how to get the necessary information before the Court in a limited amount of time. This may be done through pre-trial depositions, outlines and summaries, comprehensive joint pre-trial statements and other methods. I always meet my client in advance of trial and go through my outline of questions for both my client as well as my anticipated cross examination questions for the other party. The client will then get a good idea how succinct he / she needs to reply to the questions, and I can also confirm that all of the information that the client feels is important is in fact addressed (or if I do not feel that such is an important part of the case, I can discuss this with the client in advance).
I have come across numerous persons who complain that their attorney did not bring up things that they felt were important. There have been a number of cases where I felt that an attorney committed malpractice by not incorporating important client information into the trial presentation. I have been in some trials when the opposing attorney ran out of their allotted time before getting to some very important issues. In one recent case, I had to stiffle a cough - you should have seen the look on the attorney's face when the judge said "Mr. ___, you are out of time". I felt bad for him ... but not too bad.
If your attorney seems that have a good grasp of the facts, and ensures that the important facts are presented to the Court, you are probably in good hands. There are many very good family law attorneys that do a good job day in and day out. Unfortunately, as in every occupation, there are attorneys that are sloppy, burned out, overly arrogant, or are not well educated as to the many complex issues in family law cases. One way of telling whether your attorney is on top of things is whether he / she responds in a timely manner to your phone calls and emails. Family law attorneys are notoriously busy, however, if your attorney is not getting back to you within 48 hours or has not made other arrangements to reply to your inquiries, you may have a problem.
If it seems like you have to re-educate your attorney every time you talk to him / her, and your attorney seems to leave out important facts in the pleadings and the presentations to the Court, you may want to make a change or at least seek a second opinion regarding your case.
***
If you have comments regarding this post, and if you decide to share any of your own stories, I will appreciate if you DO NOT personally name any attorneys that you have had negative experiences with. I value my professional relationship with other family law attorneys, and I will not be able to post your comments if you name any attorneys specifically.
THE COURTS OFTEN DO NOT ALLOW ENOUGH TIME FOR TRIAL
IS YOUR ATTORNEY ON TOP OF YOUR CASE?
Good morning and welcome to our blog. If you are reading this blog, there is a good chance that you are going through a very difficult time in your life - whether it is a potential divorce, or other family law litigation. The first issue I thought that I would discuss is the limited time available for trial in family law cases. This is one of the largest obstacles that family law attorneys face. Our clients often may have numerous and factually (and sometimes legally) complex issues. A three hour trial (or even a full day trial) is often simply not enough to present all of the relevant facts in a case. While a party in a civil or criminal case may get a 2 week or longer jury trial to present far less complex issues, family law cases are rapid and sometime feel like a war zone. As you are probably already aware, Arizona (and almost all other states) do not have jury trials in family law cases. Rather, the judge decides all issues. This can be very nerve racking when you only have a very short amount of time to present your case, and the judge is making credibility issues which may impact your children or may have substantial financial consequences.
One of the things that a good family law attorney needs to do is map and stratagize how to get the necessary information before the Court in a limited amount of time. This may be done through pre-trial depositions, outlines and summaries, comprehensive joint pre-trial statements and other methods. I always meet my client in advance of trial and go through my outline of questions for both my client as well as my anticipated cross examination questions for the other party. The client will then get a good idea how succinct he / she needs to reply to the questions, and I can also confirm that all of the information that the client feels is important is in fact addressed (or if I do not feel that such is an important part of the case, I can discuss this with the client in advance).
I have come across numerous persons who complain that their attorney did not bring up things that they felt were important. There have been a number of cases where I felt that an attorney committed malpractice by not incorporating important client information into the trial presentation. I have been in some trials when the opposing attorney ran out of their allotted time before getting to some very important issues. In one recent case, I had to stiffle a cough - you should have seen the look on the attorney's face when the judge said "Mr. ___, you are out of time". I felt bad for him ... but not too bad.
If your attorney seems that have a good grasp of the facts, and ensures that the important facts are presented to the Court, you are probably in good hands. There are many very good family law attorneys that do a good job day in and day out. Unfortunately, as in every occupation, there are attorneys that are sloppy, burned out, overly arrogant, or are not well educated as to the many complex issues in family law cases. One way of telling whether your attorney is on top of things is whether he / she responds in a timely manner to your phone calls and emails. Family law attorneys are notoriously busy, however, if your attorney is not getting back to you within 48 hours or has not made other arrangements to reply to your inquiries, you may have a problem.
If it seems like you have to re-educate your attorney every time you talk to him / her, and your attorney seems to leave out important facts in the pleadings and the presentations to the Court, you may want to make a change or at least seek a second opinion regarding your case.
***
If you have comments regarding this post, and if you decide to share any of your own stories, I will appreciate if you DO NOT personally name any attorneys that you have had negative experiences with. I value my professional relationship with other family law attorneys, and I will not be able to post your comments if you name any attorneys specifically.
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