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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.

 

image of phone screen with social media apps

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.

Inheritance and Divorce

When going through a divorce, a big concern for either party may be how it will affect inheritance you have received before and during the marriage. Generally, equitable distribution and community property distribution in divorce cases do not apply to property that a spouse has inherited from a third party during a marriage, as it is considered that spouse’s property alone. However, there are some things both parties should know about how divorce can affect inheritance distribution.

When analyzing the inheritance, the key questions are the size of inheritance, when it was received, how it has been used and the financial needs of the family (both parties and any children) at the time of the divorce. Each case depends on the individual facts and circumstances surrounding the inheritance.

A judge will consider what property a party owns separately, and what can be considered marital property. Marital property will be split equally, whereas separate property will not be split, but can still be shared in certain circumstances.

In deciding the difference of the property ownership, the judge considers how, when, why and under what circumstances the property was received. They will also look at how the property is being held currently (who’s name the property is under). Also considered in the case is what each spouse contributed to the property and how much they each use it. (Example: If the property is in the wife’s name, but the husband is the only one who uses it and maintains it, just as he would if he were a co-owner of the property.)

If inherited assets are held in joint names or used for the benefit of both parties and/or for the family, they will likely be considered joint assets when being divided by the court.

If assets were inherited shortly before the divorce proceedings began, they are less likely to be included in the matrimonial assets for division, depending on if there are other assets in the marriage sufficient enough to meet future needs of the couple or family.

One of the main considerations by a judge is the needs of the family, especially those of minor children. If the only way to meet those needs is by transferring inherited assets or assets deriving from them to the other party, the court will do so.

Inheritances and separate property are very big reasons for why couples should look into prenuptial agreements and always have an experienced Phoenix divorce lawyer on their side. There are many rules that apply to parties dividing property in the event of a divorce or separation case, especially when children are involved. Consult the advice of an experienced attorney at The Sampair Group today to discuss the circumstances of your case and what your legal options are.

Different Types of Child Custody

Each state governs child custody laws differently. In order to best understand your options for child custody and visitation options, you should be familiar with the different terms and types of child custody and how your Phoenix child custody attorney will help you approach the different options you can consider.

Legal Custody

When a parent has legal custody, they have the right to make any decisions regarding the need and upbringing of the child. This includes decisions about education, health care and religion, as long as there is consultation with the other parent.
In many states, both parents will be granted joint legal custody and can both have legal rights to making decisions about how to raise their children. Parents can share joint legal custody without having joint physical custody.
When sole legal custody is granted to a parent, the one granted this kind of custody is the only one who has the legal authorization to make major decisions on behalf of the child.

Physical Custody
Also called “residential custody,” sole physical custody refers to which parent the child lives with a majority of the time and only has visitation with the other parent. If the child is spending an equal amount of time with each parent, the state might award the parents join physical custody. This type of custody works best if the parents live relatively near each other as it lessens the interference in the child’s every day life.

Sole Custody
One of the reasons a parent might be awarded sole custody is if the other parent is proven to be extremely unfit to care for the child (i.e. drug or alcohol problems, charges of child abuse or neglect).
In many states, courts will hesitate to award sole legal custody to a parent to try and enlarge the role that both parents can possibly make in the child’s life will still considering the child’s best interest.

Joint Custody
This is the most common types of custody awarded in divorce cases when no parental issues exist. Joint custody is awarded equally to each parent and can take the form of joint legal custody, joint physical custody, or both. Joint custody can be granted if the parents are divorced, separated, no longer living together, or even if they have never lived together.

In Arizona, statute provides that the court may not prefer one parent to another with respect to custody based on the gender of either parent. They are required to determine the best interest of the minor children by applying the statutory factors regarding custody and parenting time in correlation with the facts of the case. Contact an experienced Glendale family law attorney at The Sampair Group today for legal representation in your divorce and child custody hearing.

Termination of Parental Rights

Termination of parental rights permanently ends the legal parent-child relationship. Once these rights are terminated, a child may be adopted without parental consent.

Termination of parental rights may be voluntary, based on the informed consent of the parent, or it may be involuntary, a result of court proceedings brought against the parent.

In Arizona, courts will only involuntarily terminate parental rights in extreme situations, such as the child being in serious emotional or physical danger, and the termination of the parental rights is in the best interest of the child.

A parent is deemed unfit if any of the following conditions apply:

  • Abandonment of the child
  • Sever or chronic abuse or neglect
  • Long-term illness or deficiency of the parent
  • Long-term alcohol or drug induced incapacity of the parent
  • Abuse or neglect of other children in the household
  • Felony conviction or incarceration
  • Failure to establish paternity
  • Murder or manslaughter of a sibling child
  • Felony assault of child or sibling
  • Sexual Abuse
  • Failure of Reasonable Efforts

There are circumstances, however, that are not considered valid grounds for termination. Some parties that have been through a divorce seek to terminate a parent’s rights because they do not pay child support or do not follow the visitation schedule. These are not sufficient grounds for a termination of parent rights proceeding.

If parents decide to place their child or children for adoption, it is considered to be voluntary termination of parental rights.

Under Arizona law, the right to file an action for the termination of parental rights goes to any person or agency with an interest in the welfare of the child. The action can be filed as long as the person taking the action has sufficient grounds to base the claim. The people and agencies that often petition for termination of parental rights are relatives, foster parents, physicians/nurses, Arizona Child Protective Services, and child welfare agencies.

If you are thinking of relinquishing your parent’s rights or have been served with an involuntary termination proceeding order, it is best to get legal advice from a Phoenix Family Law Attorney at the Sampair Group. The experienced child custody attorneys at Sampair represent individuals throughout the valley with locations in Phoenix, Glendale and Mesa.

Social Media And Your Divorce

In today’s culture, Facebook, Twitter, Instagram and other social media and professional networking sites and applications have become a big part of how people interact with each other. Profiles are constantly being updated with shared information about our lives, jobs, etc. When a husband and wife going through a divorce are sharing this information on social networks without considering the potential consequences, it can be detrimental to the already existing stress that comes with the breakup of a marriage. The divorce process is full of stressors including legal, financial, and emotional battles between both parties, and the use of social media doesn’t make it any easier.

Be careful about who you trust on your social media profiles. Not every “friend” is a friend, and sometimes a message you thought to be private turns out to be public information that can be used against you. When posting on your social networking profiles, keep in mind the mutual friends of you and your former spouse. Some of these friends might be on your side, but some of them can easily turn on you or use information on your profile against you when taking the side of your ex, all because of something you may have posted on Facebook.

Information exchanged via technology such as emails or text messages can possibly be subpoenaed and picked through as admissible evidence in court. In many cases, one or both parties of the divorce process will claim to not have enough money for child support, spousal support, or other payments, but their Facebook profile picture of them with a new boat or on a fancy vacation may prove otherwise. The credibility of any parties that do this can be called into question immediately.

Take a few minutes to reflect on the nature of your social media posts. It would be wise to not post anything on these profiles that you wouldn’t say in person to the whole world. Information on the Internet doesn’t ever just go away immediately if it’s deleted. Exercise caution, discretion and good judgment when updating your profile. Don’t be malicious or talk poorly about your ex, as this information can quickly be used against you.

Have a discussion with your former partner to formulate a sort of social media agreement. Such issues should be addressed like what kind of information should not be posted by either of you, can you post pictures of your kids, etc. Establish one kind of communication between the two of you, such as email, to create a lower risk of impulsive comments on various types of networks. One tweet or wall post can quickly generate irreversible damage and lead to much more conflict in a divorce proceeding than you expected. Many family law attorneys will also recommend to clients that it would be in the best interest of all involved in the divorce to shut down social media profiles at the start of the divorce process.

Divorce is hard enough, and a frequent online presence can cause big problems. It is important to discuss your online presence with a legal professional. Phoenix divorce lawyers at The Sampair Group will help you understand which information is worth protecting as you battle the issues in a divorce process. Contact us today to schedule a free initial consultation.