What is a Presumption in Family Law?

When discussing presumptions concerning family law, misinformation and misunderstandings are easy to find. Simply put, a presumption is considered a legal conclusion that can otherwise be refuted by evidence to the contrary. As an example, a couple undergoing a divorce may come to terms with relation to their property that is different from Arizona’s traditional presumptions.

Let’s apply this definition and the context surrounding it to a few other aspects of Arizona law.

Presumption and Property Division

As a community property state, Arizona splits assets and debts down the middle between both spouses during their divorce. This translates to assets, gifts, pensions, and other intangible items. When divorcing spouses cannot find a way to agree on how their assets should be divided, the court will typically step in to make a ruling. Often, courts will rule as close to a truly 50/50 outcome as possible.

There are unique scenarios whereupon assets and debts are separated in more specific ways. Spouses can come to an agreement to establish separate assets and debts. This can be done through a pre or postnuptial agreement. Prenuptial agreements detail how property division will occur in the event of a divorce, while a postnuptial agreement is the same thing, only signed after the fact.

Finally, there is the possibility that a judge will order debts or property to be handed out in an inequitable way. This is often due to reckless spending or some other aspect of marital waste. Other examples of marital waste include drugs, gambling, shopping, and spending money on having an affair.

Child Custody & Child Support

Outside of property, presumptions in family law may also determine who has custody of a child. Custody decisions are made while focusing entirely on the child’s best interest, pushing away misconceptions that mothers are always going to win custody. Sometimes, courts focus on dividing custody as evenly as possible, while other times this simply can’t happen, due to work or relocating out-of-state. Other concepts weighed during this decision include child support, ensuring that both parents can provide for the child full-time.

As a point of order, courts prefer to place children with parents that are not struggling with addiction, incarcerated, or otherwise incapable of the appropriate childcare.

Contact the Sampair Group Today

The Sampair Group is an Arizona-based Law Firm focused primarily on Family Law. Based in Glendale, the Sampair Group proudly serves clients throughout the region, from Paradise Valley to Ahwatukee. With an A+ BBB Rating and a Top Attorney Rating on Avvo, now is the perfect time to schedule a consultation with the Sampair Group.

What If the Other Parent Won’t Comply With the Court Order?

Unfortunately, having a court order for child custody doesn’t always guarantee that things will be smooth sailing. This is often the case when the other parent fails to comply with a custody order that has been issued by a judge. If you’re going through this, you may be wondering what recourse you have and what steps you should take next.

Document Everything

First and foremost, try to remain calm; emotions naturally run high when child custody agreements are not being followed. However, you will want to keep your composure as much as you can. Focus your efforts on documenting each instance where the other parent is not complying with the court order. If the parent is late picking up or dropping your child off, for example, be sure to write down the date(s) and the time(s) that this occurred.

The more documentation you have of the parent not following your court order, the better your case will look in court.

File a Motion to Enforce Parenting Time

The next step you will most likely want to take is to file a legal motion with the court; this is known as a motion to enforce parenting time. When you submit this motion, a judge will review your original court order, as well as any documentation or evidence you have gathered. In some cases, the other parent may be fined for violating the original custody order. In other cases, the judge may change the original custody order to give you more time with the child or make other alterations to the original agreement.

Attend Necessary Hearings

In some cases, a judge may request additional information from each party. When this occurs, a court hearing will be scheduled. Typically, both parties will be required to attend. This is an important time to bring any additional evidence or documentation you may have of the other parent’s failure to follow the original court order. At this hearing, you should also be prepared to hear counter-allegations that the other parent may have against you (whether they are true or not).

At the end of the hearing, the judge will most likely reach a decision on whether to alter the original court order or to impose fines (or even jail time) on the other parent.

Get the Legal Representation You Need

Dealing with a parent who does not follow your child custody order can be stressful and frustrating. The good news is that there are steps you can take to help get your order enforced. Still, the best way to navigate this complex legal process is to work with an experienced family law attorney. At The Sampair Group, we offer the representation and guidance you need during this difficult time. Find out more about our attorneys or schedule your free consultation with us today!

What Is A Preliminary Injunction In A Divorce?

A preliminary injunction is a tool used in Arizona divorce law to ensure that both parties act in good faith during the legal process of finalizing a divorce. The injunction applies to both people and limits the things that they are able to do throughout the proceedings that follow so that neither person can commit an act that would preemptively undermine the final ruling by the court. It serves primarily to protect property, assets, and any children that the couple shares.

What Can be Protected by a Preliminary Injunction?

The following concerns can be addressed via the preliminary injunction, and both parties will be required to abide by the terms of the injunction.

  • The sale of property, such as the home, car, or personal belongings with value. This applies to assets that the couple shares and neither person may intentionally stop making mortgage or loan payments that would jeopardize these assets.
  • Traveling with children out of state. this injunction can make it a criminal offense for either person to take the children out of state. If either party wishes to take children out of state while the case is pending, they must obtain the written consent of the other parent or permission from the Judge.

  • Taking out new loans. Shared assets cannot be used as collateral on any new loans or mortgages. This protects both people from the potential negative financial impact of these actions.
  • Altering insurance policies. Any health, auto, life, or disability insurance coverage must not be allowed to lapse during the divorce proceedings.
  • Harassment. Any intimidation, violent behavior, or actions that can be construed as stalking or psychologically manipulative are included in this provision. If one of the parties violates the injunction, criminal charges can be brought separately.

Arizona Revised Statute Section 25-315(G)

In the state of Arizona, it is a crime to violate the terms of a primary injunction. It is important that both parties understand the terms of the injunction and how to seek an exception under special circumstances. If the terms are violated, it is a Class 1 misdemeanor that carries with it a jail sentence of up to six months. It can also result in separate criminal charges and additional legal fees and fines, depending on the circumstances of the breach.

In addition to preventing the sale or transfer of ownership of any property or assets that the couple shares, a preliminary injunction will make it a criminal act to conceal any property. Ways that people attempt to do this can include signing property over to relatives and friends or giving property to others in the form of monetary gifts.

Learn About Your Rights with a Free Consultation

The Sampair Group represents clients throughout Arizona, in the Chandler, Glendale, and Scottsdale areas. If you are facing or seeking a divorce, contact us to schedule a free consultation. Give us a call or fill out our contact form to learn more.

What Are Third Party Visitation Rights in Arizona?

According to the A.R.S § 25-409 statute, third-party rights in Arizona allow the placement of children into the home of a third party. The statute also grants third-party visitation rights in certain circumstances. When going through a divorce or paternity case, this statute is commonly referenced when rights and requests are petitioned to the court. If you’re a third party seeking visitation rights, keep reading to learn how this statute and others can be used in your favor.

How Do Visitation Rights Play Out in Arizona?

When a third party requests visitation rights in Arizona, this is what is known as atypical family law. During most divorce or paternity cases, the child’s best interest is always evaluated with both parents starting off on equal footing. However, during a third-party case, both parents are given an advantage over the third party because a parent always has rights unless they sign them away. This is what is referred to as a “mother and father having an equal constitutional right to provide the control, custody, care, and protection over their child. There is no such right for third parties.

When a third party intends to file a petition with the court to request third-party visitation rights, it must meet all criteria outlined in § 25-402, subsection B, paragraph 2:

  1. Must establish that the third party is standing in loco parentis to the child
  2. Must establish that removing the child from the legal parents’ home(s) is significant to the well-being of the child
  3. Within the prior year of filing the petition, there cannot be an entered or approved order regarding the legal decision-making of the child; the same applies for an order regarding parenting time; however, these criteria do not apply when the child currently resides in an environment that could bring serious endangerment to the child’s health, including its physical, mental, or emotional health
  4. One of the following criteria must be met:
  • A legal parent is deceased
  • The child’s legal parents are not legally married to one another when the third party files the petition
  • There is a proceeding for the dissolution of marriage between the legal parents when the petition is filed or the proceeding for a legal separation

When all four elements have been met in a manner in which it can be proved, then Rebuttable Presumption allows for the case to be set to trial.

If and when a trial takes place, the petitioner goes through the process of rebutting that the presumption of giving a parent the authority to be the sole legal decision-maker for the child is going to be in the best interest of the child. It is very important that clear evidence is obtained to make this claim and to file a petition. Without sufficient evidence establishing all four elements have been met, most petitions are quickly tossed from the court’s recognizance. Having a solid and experienced attorney who knows atypical family case law is essential to winning a third-party visitation case and is often the difference between an approved or denied petition.

image of stock options

How to Deal with Stock Options in an Arizona Divorce

Stock options are an incredibly complicated subject in even the best of times, much less during a contentious divorce. To ensure that your assets are protected and properly divested, keep on reading to learn more about stock options, what they are, and how they are handled during a divorce in the state of Arizona.

What Are Stock Options?

In the world of finance, a stock option is a contract that gives the owner the right, but not the obligation, to purchase or sell an asset at a specific price-point.  In the typical employer-employee relationship, this stock option is known as a grant. An option will be exercised at the moment that the employee in the relationship purchases the stock by following the options granted in the contract.

Options are granted for a litany of different reasons, but they always break down into either Qualified or Non-Qualified stock options.

  • Qualified Stock Options — A qualified stock option is also known as a statutory incentive stock option, otherwise known as the ISO. Taxes due on qualified stock options aren’t to be paid until the sale of the stock, when it was sold, and its corresponding tax rates.
  • Non-Qualified Stock Options — Taxing non-qualified stock options occurs after the value has been discerned from the established market, creating the income tax that is due when the grant is optioned.

Grants that are given, received, or exercised during a marriage will become a stock that has been exercised and as such will be distributed as a part of the community assets during the divorce.  These stock options can then be realized due to several factors about employment, financial compensation, or in exchange for a raise.

Consider how this might affect Silicon Valley employees investing heavily in startups, and we can quickly see how this becomes a point of contention during a divorce.

Distributing Stock Options During an Arizona Divorce

Arizona falls in line with many of the same state laws regarding divesting assets and stock options during a divorce. Like many other states, Arizona will distribute property resulting from the marriage only if that property was acquired during the marriage. Property that is available after the divorce has commenced is beholden to far trickier conversations.

Generally speaking, Arizona will treat stock options in much the same way that they do pension plans. As addressed through Brebaugh v Deane, 211 Ariz. 95, stock options must be further looked at to see the terms of their execution as well as when the grant would be paid out for potential future efforts, thus throwing a wrench into the entire conversation.

Unfortunately, there are no clear-cut answers when it comes to how a stock option will be dispersed during divorce proceedings. Depending on the court’s decision, and the case presented, the answer can go one of many directions. There are ways to maximize your chances at properly protecting your assets and that is through professional legal help.

The Sampair Group Is Ready to Help

To learn more about stock options and how they are distributed during a divorce, contact The Sampair Group for same or next-day appointments by telephone and video conference. The Sampair Group is made up of acclaimed family law attorneys who have represented thousands of Arizonans in their time of need.

With almost 40 years of legal experience, Attorney Patrick Sampair is ready to stand for YOU during your next legal battle.

 

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What to Do When Children Don’t Want to Go to Visitation

When a visitation schedule is set by a court order, following these orders should be pretty straight-forward…right? Well, not always. When a child no longer wants to attend a visitation with another parent, this can complicate matters significantly. By having a better understanding of why these issues arise and what your legal responsibilities are, you can handle this difficult situation properly.

Common Reasons for Visitation Hesitation

When a child seems hesitant or downright refuses to attend visitation with the other parent, the first step you’ll want to take is to determine why this is occurring. This is especially important is the hesitation seems to have come out of nowhere.

Some of the most common reasons that a child may not want to attend visitation include:

  • a poor relationship with the other parent’s partner/spouse or other children in the household
  • general resentment over a divorce or separation
  • a poor relationship with the other parent
  • a change in household rules or rituals that the child is uncomfortable with

Some less common (but more serious) reasons a child may be hesitant about visitation include:

  • substance abuse in the other home
  • physical/emotional abuse in the other home
  • sexual misconduct in the other home

Do You Have to Make Your Child Attend Visitation?

Unless you have a legal reason to withhold your child’s visitation from the other parent (such as evidence/claims of abuse or misconduct), it is generally your legal responsibility to follow your court-ordered parenting plan as closely as possible. This remains true even if the other parent is behind on child support payments.

If you suspect that your child simply doesn’t want to visit with the other parent due to other circumstances (like not wanting to be away from friends or having to conform to a different set of “house rules”), there are some strategies you can employ. The best course of action is usually to speak with the other parent and come up with a plan that will make everybody happier and more comfortable.

If visitation continues to be an issue, however, you can go back to court and request a re-working of the visitation plan. Before you do this, though, you’ll want to make sure the other parent is aware of the issues and that you have made an honest attempt to work through them. You’ll also want to start carefully documenting each instance where your child refuses or is hesitant to visit the other parent, as this documentation may come in handy in court.

Consult With a Family Lawyer for More Help

If you’re running into issues with your court-ordered visitation schedule, it can also be helpful to consult with a family lawyer who specializes in these types of cases. An experienced lawyer will be able to provide you with the personalized guidance and legal advice you need to move forward and challenge your current visitation arrangement in court if needed.

Ready to schedule your free consultation with our legal team? The Sampair Group is always here to assist you. Contact us today to find out more about what we can do for you.

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The Impact of Social Media During Divorce

Social media seems to be everywhere these days. Just about everyone has at least one social media profile they use to keep in touch with people and to share information about their lives. However, these types of sites are still relatively new and many people don’t think about the negative impacts of the things they post, particularly when it comes to relationships. Understanding the impact of social media in terms of romantic relationships, especially when it comes to divorce, is essential to ensure you’re protected.

Social Media’s Impact on Relationships

Whether you’re married or just dating at the moment, social media can be both positive and negative for relationships, but few people think about the negative effects. Some of the issues that can arise in relationships as a result of social media include:

  • Infidelity — Social media makes it much easier for individuals to stray from their current relationship. Many people, women in particular, often find their inboxes filled with messages from members of the opposite sex who are clearly in relationships based on their profiles. These messages are often framed as a way to cheat without getting caught as easily.
  • Unrealistic Expectations — Many people these days are well-versed in using Photoshop, image filters and others methods of altering their pictures. It’s easy to forget this when you’re scrolling through social media and find yourself attracted to someone. If you do start a relationship with someone you meet on social media, you may have unrealistic expectations of how they look and how they live their life.
  • Distractions — Most people have gone onto social media at some point to quickly respond to someone, only to find themselves sucked into reading articles, browsing pictures or watching videos. Rather than spending time with their partner, they end up with their nose to their phone for far longer than they intended.
  • Insecurity — Social media is a breeding ground for insecurity. Whether you don’t feel your significant other is posting enough about you or they are commenting or liking too many posts from a member of the opposite sex, it’s easy to begin feeling jealousy when there’s no reason to.

How Social Media Impacts Divorces

Attorneys today are now using social media as a tool to help them win divorce cases for their clients. They can be used to prove income if you claim you can’t pay child or spousal support or may even contain evidence of cheating. It’s important to remember that anything you post can, and most likely will, be used against you, so it’s essential to be careful about what you post, especially if you’re going through a divorce case. Never post anything illegal, such as drug use, even if you’re just joking around with your friends. If you do spend money, keep it off social media. The last thing anyone needs is to be painted as a reckless spender. Never bad mouth your ex, even if you have good reason to. The key in child custody cases is to be diplomatic and present yourself as capable of being neutral for the children’s sake. Finally, if you do have a new significant other, hold off on making an announcement and posting pictures until after your divorce is finalized.

image of parent pushing stroller

Modifying Your Child Support in Arizona

Many people who pay or receive child support end up having to go through some type of modification process. When child support is modified, this means the amount received or paid out will likely increase or decrease. A person paying child support who has a decrease in income will often ask for a modification to their child support payments. It’s important to remember, though, that child support modifications can’t be requested at all times. However, both parties, the one receiving the payments and the one making the payments, can put in modification requests if they meet certain criteria.

Always File Quickly

One of the keys to succeeding in a modification of child support is to file quickly. Even if you aren’t sure whether the case and criteria qualifies for a modification, you can still have ask for a modification review. If you fail to put in a modification request and you can’t afford your payments, the child support payments are still going to add up in arrearages every month. Even over a short period of time, these arrearages can turn into a substantial amount of debt that you can’t have dismissed. More so, interest will incur on the arrearages, further increasing your child support debt and making it harder to get caught up.

Another reason to file quickly is because if approved, the modification will begin from the date you filed. For those paying child support, you can save thousands of dollars by filing quickly and having the payments retroactively reduced fro the petition date. For those receiving child support, you can lose thousands of dollars if you fail to file a modification request quickly because the longer you wait, the more money you forfeit in the event the modification request is approved for a higher amount than what you are already receiving.

Remember the Retroactive Child Support Rule

Child support cannot be retroactively modified to a past date except for in two situations: retroactive modifications are permitted according to the date a Petition to Modify Child Support is filed, and in some cases, according to an initial child support award amount. The latter only applies to those who have never received a child support order. In this instance, the court will most times modify the award amount according to the date the partner stopped providing financial care to the child.

Know What You Have to Prove

To take the headache out of going through the child support process, it’s important to know what to expect; this applies to both parties. For those who are petitioning to receive child support payments, it’s pertinent to understand that you and the person you are petitioning will have to provide income information. This is because the amount awarded is determined by both parties’ income and expenses as well as the difference in those amounts.

For those who have received a petition for child support, you will have to provide income and employment information as well as payroll and banking information, if you have it, so that child support payments can be automatically deducted from your bank account or paycheck. Having the payments come directly out of your banking account or paycheck is helpful in ensuring you don’t get behind on payments.

In most cases when receiving an Affidavit of Financial Information, you will need to gather the following:

  • Tax returns
  • Pay stubs
  • W2s
  • Alternative forms of proof for any income deriving from self-employment

The process of modifying a child support in Arizona can be easy if you file the petition quickly and have all necessary information and documentation gathered and ready to submit. So, don’t wait.

image of divorced couple splitting property

How Does Community Property Get Split Up During a Divorce?

An Introduction to Community Property Division

Divorce can prove a remarkably traumatic and messy experience even when everything goes about as smoothly as you might realistically hope. The division of property that you and your spouse have shared for years, however, can seem especially tricky, often introducing fresh grievances or re-igniting old ones in the process. You may have additional problems dealing with Arizona’s adherence to the principle of community property division. Let’s examine this method of divvying up assets between divorcing spouses so you can gain a better understanding of how it works, what problems it might entail, and how to ensure the most satisfactory possible outcome.

Community Property vs. Equitable Distribution

Most U.S. states use a method known as equitable distribution to determine who gets what in a divorce case. In equitable distribution, the court has full power to distribute assets based on its interpretation of what’s fair to each party. Depending on such variables as which spouse earns the lion’s share of the household income, spends more time looking after the children, or both spouses’ potential earning power, the court may then award a spouse anywhere from one-third to two-thirds of the overall marital assets.

Nine states, including Arizona, currently break this trend by dividing marital assets according to community property rules. (In Alaska, however, community property is treated as an option, not a requirement.) This means that the marital assets are divided 50/50 regardless of the roles played by each spouse in the marriage. The court has far less power over the awarding of assets, although it does retain some say over what constitutes an equal split. Your share of the community property may include assets that you don’t especially want while depriving you of others that you genuinely prize.

Separate Property vs. Community Property: What Counts as Which?

Community property doesn’t place everything you and your spouse own into a single lump — instead, it applies specifically to items that you purchased during your marriage. Exceptions to this rule include property acquired separately as a gift or inheritance, as well as any property acquired following a petition for divorce that results in an actual divorce decree.

Certain assets are considered separate property, placing them outside the bounds of the divorce settlement. These include any real estate or other property you acquired before getting married, as well as any rent or other additional value generated by that property.

The First Step: Complete Disclosure and Initial Assessment

You and your spouse (with the aid of your respective attorneys) can iron out much of the confusion over your community property division before the matter ever goes before the court. First and foremost, both of you must disclose everything you own, from pets and jewelry to cash, cars, and homes. Attempting to shield any of your assets by excluding them from the community property inventory will only introduce costly, upsetting complications to your divorce. Once you and your spouse have listed every asset you can think of, you’ll need to figure an estimate of value to help the court decide what makes for an equitable division.

Business, Home, and Debt Division 

If you started your own business or purchased a business before your marriage, that business remains wholly yours as separate property. However, the court may decide to award your spouse a percentage of the business’s appreciation in value, or even an outright percentage of the business itself, if your spouse contributed to the business’s success either financially or through hard work.

A home purchased before marriage, with the deed in your name alone, remains your separate property, giving you the right to ask your spouse to vacate it. However, if you both hold joint title to the home and your spouse serves as your children’s primary caregiver, your spouse may actually be the one who continues to live on the property.

Community property includes debts as well as assets. Debts are typically considered the problem of both spouses equally, regardless of who incurred the debt or whether the debt was incurred before the marriage.

Don’t go it alone when pursuing a community property divorce. Contact our firm to speak to a skilled Arizona divorce attorney.

 

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Video Consultations: The Meetings of the Future, Here Today!

You Can Still Meet With Your Legal Team, Thanks to Videoconferencing Technology

Family law issues do not put themselves on hold even in the face of a global pandemic. COVID-19 has forced millions of Americans to conduct their personal lives and business matters from the relative safety of their home computers. Unfortunately, the same circumstances that keep people stuck in their houses may only add urgency to divorce proceedings, child custody battles, community property division, child support disputes, and other forms of family legal turmoil. The good news is that you can still confer with your attorney or legal team at The Sampair Group, thanks to our state-of-the-art videoconferencing technology.

The Many Benefits of Video-Based Attorney Conferences and Meetings

You’ll likely be astonished by the sheer effectiveness, convenience, and efficiency of this approach. Here are just some of the significant benefits offered by our video consultations.

  • Cost Effectiveness: Video consultations are easy to arrange and participate in on short notice, no matter where you may be at the time. by eliminating the need to travel to and from meetings, you may find that you accumulate lower legal costs.
  • Multi-Member Meetings, Multiple Locations: One of the bigger challenges in putting together meetings involving several individuals is simply getting all of those people into the same room at the same time. Video conferencing technology enables two, three, or more people to participate in the meeting from anywhere in the world. This can help prevent cancellations and rescheduling delays.
  • No Special Hardware or Software Necessary: Today’s videoconferencing does away with the need for the specialized equipment and facilities of yesteryear. as long as you have an Internet-ready, camera-equipped desktop computer, laptop, tablet, or smartphone, you can connect to our video consultations with ease — usually in just two or three clicks.
  • A Short Online Questionnaire Gets the Ball Rolling: If you have digital copies of documentation relevant to your case, you can make it available to us beforehand in a password-protected folder. The video consultation itself usually requires nothing more than the filling out of a short online questionnaire.
  • A Secure, Time-Tested Solution: The Sampair Group uses the same GoToMeeting program implemented by the Maricopa County Superior Courts for hearings and trials. Although GoToMeeting first became a household word during the COVID-19 pandemic, the program has enjoyed widespread use as a trusted business tool for over 15 years.

Get the skilled legal counsel you need even while you’re self-isolating at home. Contact us today to learn more.