When you need your case done right, the first time.

Why Should I Establish Paternity?

By James Jennings

Establishing paternity can provide legal, emotional, social and economic ties between a father and his child. Once paternity is legally established, a father gains legal rights and privileges that are afforded to all parents. A child also gains certain rights when paternity is established. Among these may be rights to inheritance, rights to the father’s medical and life insurance benefits, Social Security and possibly veteran’s benefits. The child has a chance to develop a relationship with the father and to develop a sense of identity and connection to the “other half” of his or her family. Also, it may be important for the health of the child for medical history.

If you have any questions regarding a specific legal matter or legal strategy you should contact an attorney for legal advice. If you would like to get started on a family law or bankruptcy case call us today, 602-896-9020, email us at discountdivorce@msn.com, or visit our website at DiscountDivorcePro.com.

We invite you to subscribe to Discount Divorce & Bankruptcy Twitter account: @discountdivorce and Facebook page: facebook.com/discountdivorce Both of these social media sites have value information.

How Do You Determine Household Size: Chapter 7 Means Test

By James Jennings

How do you determine your household size when calculating a Chapter 7 Means Test?

There seems to be a lot of confusion on this subject. This is probably because there is a lot of deferring opinions on how this is determine and what method your jurisdiction is using at the time you file.

Let’s look at some of these methods that have been used to determine household size. There are three methods that are popular: Heads-On-Beds, Income Tax Dependent, and Economic Unit.

Heads-On-Beds Approach

The “heads-on-beds” approach follows the Census Bureau’s definition of a household which includes everyone who lives in your house. Because the heads-on-beds approach doesn’t take into account financial contributions or relationships between household members, most courts believe that it’s too broad and inaccurately inflates household size. As a result, only a minority of courts use this approach.

Income Tax Dependent Approach

When determining household size, some courts only allow debtors to count individuals they can claim as dependents on their tax return. In general, this is the most restrictive approach because it doesn’t allow debtors to claim a person who lives in their house unless they can include him or her on their tax return as a dependent.

Economic Unit Approach

Many courts use the economic unit approach when figuring out household size on the bankruptcy means test. This method essentially looks at how many people in your household act as a single economic unit. The economic unit approach generally allows debtors to count any individuals living in their home they financially support, depend on, or whose finances are closely intermingled with their own.

Also, it is important to note, the 4th Circuit Court of Appeals approved a fractional approach based on the amount of time children live with the debtor. In that case, the court divided the number of days each child lived in the debtor’s house during the year by 365 to come up with a fraction. The court then added the fractions for each of the children to calculate the debtor’s household size.

If you’re still confused don’t feel bad, there seems to be a lot of that going around. Ultimately if the Trustee objects to your household size then it will be up to the judge to determine if you qualify for a Chapter 7. Only he or she can make the final determination.

As Dodge said in Frank Beddor’s Seeing Redd, “I think I speak for all of us when I say, ‘Huh?'”

We invite you to subscribe to Discount Divorce & Bankruptcy Twitter account: @discountdivorce and Facebook page: facebook.com/discountdivorce Both of these social media sites have value information.

Bankruptcy: New Case Filings for July 2016

By James Jennings

Are things getting better for the Phoenix Area?

Chapter 7 bankruptcy filings have dropped 19.3% from July of 2015.
Chapter 13 bankruptcy filings have gone up 3.8% from July 2015.

Does this mean the economy is getting better in Maricopa County?

Tell me what you think.

Figures from the United States Bankruptcy Court.

You Must Disclose What You Plan on Showing at Trial

By James Jennings

To help you prepare for the trial, the Arizona Rules of Family Law Procedure have disclosure and discovery requirements.

Disclosure requirements are in Rule 49. You and the other person must voluntarily provide certain information to the other person. You have an obligation to tell the other person or disclose such information to them, and you have a right to have the other person disclose such information to you. Failure to disclose as required may result in penalties called sanctions, including being prevented from talking about or showing evidence that was not disclosed on time.

If you need information that the other person has not given you, you may engage in discovery, such as asking for documents from the other person or requesting with a subpoena documents from people or businesses that are not parties. Rules 51 through 65 of the Arizona Rules of Family Court discuss the requirements for discovery.

Remember there are no surprises at trail. This isn’t Perry Mason.

I like what Edgar Watson Howe – Country Town Sayings- had to say, “The man who can keep a secret may be wise, but he is not half as wise as the man with no secrets to keep.”

We invite you to subscribe to Discount Divorce & Bankruptcy Twitter account: @discountdivorce and Facebook page: facebook.com/discountdivorce Both of these social media sites have value information.

I Can’t Find My Spouse to Serve Them with Divorce Papers

By James Jennings

So you find yourself in a situation where you have filed for divorce – or some other legal action – and you husband or wife has disappeared or you haven’t seen them in years. This actually is a lot more common than you would think. So now what?

I remember a few years back an elderly gentleman came into my office looking to divorce his wife. You see he married her in 1942 in Phoenix during World War II. He went on to further explain that they had only spent one night together before he shipped out to the Europe to fight in that war. Unfortunately he had not seen her since. When he came back stateside she was nowhere to be found. In essence he had not had contact with her for more than 71 years. He realized that he had one-foot in the grave so to speak and he did not want her to have a legal claim to his estate should he pass. He wanted to have his children from another marriage to get his property now that his other wife had died some five years prior to him coming in to see me for a divorce. I’m not even going to get into how his second marriage wasn’t legal because he didn’t divorce his first wife – can anyone say bigamy- but suffice it to say he needed to divorce his first wife.

Arizona Rules of Family Law Procedure (ARFLP) Rule 41(B) requires all legal documents to be served on the opposing party – in a divorce that would be the Respondent – so that they have notice of the divorce and what they can do to be heard if they want to contest the terms of that divorce. Fortunately, there is a way to obtain a divorce when you have a missing spouse. The same rule in Sub-part M states that if you do not know the residence of the other party you can serve them legal notice through the newspaper.

“ … where the person to be served is one whose residence is unknown to the party seeking service but whose last known residence address was within the state, or has avoided service of process, and service by publication is the best means practicable under the circumstances for providing notice of the institution of the action, then service may be made by publication… ”

Sub-part M goes on to further state how to accomplish this. First, you must run the legal notice, that being the summons in a newspaper of general circulation once a week for four weeks.

“Such service shall be made by publication of the summons, and of a statement as to the manner in which a copy of the pleading being served may be obtained, at least once a week for four successive weeks (1) in a newspaper...”

And this notification must run in the county where the case is filed and the county of last know residence of the person you are trying to serve notice to.

“…a newspaper published in the county where the action is pending, and (2) in a newspaper published in the county of the last known residence of the person to be served, if different from the county where the action is pending.”

So in the above example of the World War II veteran bigamist, since he filed in Maricopa County and his wife’s last know residence was Maricopa County the publication would only run in Maricopa County. So he only has to pay for publicizing in just one county, however, if she had live in Navajo County and he filed in Maricopa then he would have to publicize in both counties. (Rule 42 has information about what to do if they reside outside of Arizona’s jurisdiction.)

It also important to note that if you choose this method of service you must have done everything possible to find your missing wife or husband. The court considers this sort of legal notice as a “method of last resort”. You just cannot run a legal notice in the newspaper because you want to avoid serving you husband or wife by another method.

Most judges demand that you do your due diligence first. Judges usually want you to do the following first BEFORE you use the newspaper for service:

Contact family and friends of your spouse and ask if they know where they are;
Contact the military and see if they are in the armed services;
Contact the Arizona Department of Corrections and see if they have been incarcerated;
Do an internet search and see if they turn up;
And finally, do a phone directory search.

If all this fails to bear fruit then most judges will be satisfied that you really did try to find your spouse and you have no other alternative but to serve notice through the newspaper.

Now there are some pros and cons to doing a “newspaper divorce”.

Pros of a Newspaper Divorce

The court will grant you a divorce and you can move on with your life. Get remarried, buy a house, win the lottery, etc.

Cons of a Newspaper Divorce

A newspaper divorce is like the Sword of Damocles. Your husband or wife can come back years later and have the case re-opened because they were not “personally” served with divorce papers.

Also, the judge will not order anything to do with the division of property (real or personal), debts, retirement, alimony (spousal maintenance), child support, child custody (legal decision making authority), parenting time or any other issue other than giving you back your maiden name or restoring any name you ever legally had prior to your current marriage.

This too is all addressed in ARFLP Rule 41(M)

“Service by publication is not sufficient to confer jurisdiction upon the court to determine issues of paternity, child support, spousal maintenance, division of marital property, or any other issue requiring personal jurisdiction over a party.”

Therefore, if you ever find this person and these issues are important to you then you have to re-open the case and address theses issues.

Finally, newspaper divorces take around four months to complete from beginning to end if they are uncontested. That’s a full thirty days longer than the typical divorce that is served by a different method.

The good news is Discount Divorce & Bankruptcy is extremely experienced in handling newspaper divorces. We have done thousands in the past twenty years.

We will manage all aspects from setting up the publication in a newspaper that will be accepted by the Court as a proper newspaper. We will prepare all required affidavits that have to filed and sent to the judge. And finally, we will set the required hearing up with appropriate judicial officer so that your divorce will be finalized.

I always feel a little bit sorry for people that try to do a newspaper divorce without assistance of a professional like us. It’s sort of like trying to do surgery on your dog without a veterinarian. You’d better dig a hole first because the chances of success are slim. If your intend to serve notice by publication and you want it done right the first time call us.

We invite you to subscribe to Discount Divorce & Bankruptcy Twitter account: @discountdivorce and Facebook page: facebook.com/discountdivorce Both of these social media sites have value information.

Disclosing Financial Records to the Bankruptcy Court

By James Jennings,Legal Document Preparer.

When you file for bankruptcy, the court will take an active interest in your financial life. They look at your payment records and bills. Under a traditional bankruptcy proceeding, the trustee is going to want to review all of your bank account records, card accounts, credit loans, tax paperwork and various other financial components.

The Trustee is looking for any assets that can be sold to help pay down your debt in a Chapter 7 Bankruptcy. The Trustee is also looking for evidence of assets and income that are exempt under the conditions of the law. These are called exemptions. A list of them can be found be found in a publication produced by the court.

Make sure to have your documentation organized and ready for the courts. It lets everyone involved know that you are willing to cooperate with them. Those who have a willingness to cooperate and work with the court will benefit in the long run. Being upfront and honest will get you a favorable result from the court officials most of the time.

When it comes to your tax returns, the courts normally like to see two years of returns. For everything else, you can expect to provide three months of documentation. As you file your documents with the court, it is imperative that you remember that you are under oath. If you hide information or lie to the court it maybe considered fraud which is a crime.

Most of the time, three months of records seems to be what the bankruptcy courts like to see.

The actress Angela Jolie once said in an interview back in 2003 “I’m just honest. I like that I don’t have to worry about what I say. I really don’t have the time or energy to pretend and I don’t want to have to live that way.”

Seems like good advice. Being dishonesty is like swimming upstream in a storm. It will eventually wear you out and you’ll end up drowning.

We invite you to subscribe to Discount Divorce & Bankruptcy Twitter account: @discountdivorce and Facebook page: facebook.com/discountdivorce Both of these social media sites have value information.

Church Annulment v. Civil Annulment

By James Jennings

Clients often ask me, what is the difference between a civil annulment (a declaration by a state court that a valid civil marriage never existed) and a church annulment (a declaration that sacramental marriage was never created). This tends to confuse people sometimes. The differences are as night is to day. A superior court judge grants a civil annulment as per Ariz.Rev.Stat. §25-301 and the Roman Catholic Church grants a church annulment.

The Roman Catholic Church has its own separate system of annulment. The church does not recognize divorce. Nor does it recognize annulments that are granted by civil courts. Having a civil annulment does not automatically lead to a church annulment. In the eyes of the church, the only way to terminate a marriage (other than by death of one of the parties) is by seeking a Petition of nullity in a canon law church court, which declares the marriage “Null “.

Technically, the church does not dissolve the marriage. Rather it makes a judicial finding that a valid sacramental marriage was not created or entered on the wedding day. This will allow a Catholic to remarry in the church, to receive communion, and to participate in all the other sacraments. Full participation is denied a Catholic who remarries without obtaining a church annulment-even if he or she obtained a civil annulment.

The main ground for a church annulment is defective consent, usually due to “Lack of due discretion” or “Lack of due confidence.” The primary focus of a church court is whether the parties entered the marriage through a free act of will with the intention to except the essential elements of Marriage: permanence, fidelity, and conjugal love that is open to all. Among the factors that can interfere with this intention and are duress, fraud, conditions to one’s consent, and physiological problems such as mental illness.

To initiated church annulment, the Petitioner pays a processing fee (approximately $500) in order to have a formal hearing presided over by a tribunal judge. An advocate presents the case of the Petitioner seeking the annulment. Also present is a “Defender of the Bond “, who monitors the proceeding to ensure that rights are protected and church law properly observed. The hierarchy in Rome has criticized American bishops for allowing too many church annulments. The 119 dioceses of the United States have granted over 50,000 annulments each year. This constitutes 80 percent of the annulments granted by the church worldwide.

So you can see, church annulments and civil annulments are not related in any way. Moreover, I have seen cases where two people have obtained a civil divorce but have later been granted a church annulment. Since there is a separate and distinct separation of church and state powers as granted in the U.S. Constitution this is possible.

For more information on church annulments and procedures contact your local pastor for more information.

We invite you to subscribe to Discount Divorce & Bankruptcy Twitter account: @discountdivorce and Facebook page: facebook.com/discountdivorce Both of these social media sites have value information.

Saving Your Marriage

By James Jennings

I have people come into the office after they got served divorce papers and tell me that they don’t want to get divorced. I also I people call me and tell me they want a divorce but their spouse will not sign the divorce documents because they won’t give them a divorce. The grim reality is this: if someone wants out of a marriage in Arizona then the court is not going make two people stay married. The court will grant the divorce.

This is not to say that there is no hope. You can try counseling, you can take a break from one another by filing a legal separation instead of pursing the nuclear option (divorce). You can try talking with one another -especially if children are involved and seeing what’s in their best interest.

The court also has some services that might be able to resolve your issues in a divorce. One such service is Conciliation Services. The process begins with filing a request – which Discount Divorce and Bankruptcy can assist you with. Once the request is filed for Conciliation Services the court will put the divorce process on hold for 40 days.

The meeting with Conciliation Services is usually within 4 weeks of filing the request. You’ll meet with a staff member who has at least a Master’s Degree in in Mental Health and 2 years of experience in counseling or social work. These people can speak to each of you intelligently about parenting time disputes, legal decision making, and other family issues that may be of concern to you.

However, in the long run if Conciliation Services doesn’t work then it may be time to move on and accept the fact that the marriage is over. You may have to learn to let go and focus on what’s best for the children and your life by concentrating the divorce case and navigating the best outcome for all involved.

I like what Tupac Shakur, an American rapper and actor said:

“You can spend minutes, hours, days, weeks, or even months over-analyzing a situation; trying to put the pieces together, justifying what could’ve, would’ve happened… or you can just leave the pieces on the floor and move the [expletive] on.”

We invite you to subscribe to Discount Divorce & Bankruptcy Twitter account: @discountdivorce and Facebook page: facebook.com/discountdivorce Both of these social media sites have value information.

The Court’s Filing Fee

By James Jennings

When a case is prepared and ready to file the court will charge a filing fee. You can think of a filing fee as a state or federal tax that is levied to issue you a case number. The filing fee is collected for several purposes chiefly among those is the operation of the Clerk of the Court’s Office. While still some of the funds are deposited in the expedited child support and parenting time fund established pursuant to Ariz.Rev.Stat. §25-412. For a complete understanding as to what the funds are used for see Ariz.Rev.Stat. §25-284.

Each county in Arizona sets its own fee for each type of case that is filed. For example Maricopa County charges a fee of $338 – as of the posting of this blog – to the Petitioner to initially file for divorce. While in Pima County court charges a $298 filing fee. (It begs the question, so why doesn’t everyone file in the cheapest county? Great question. Mainly because you would be filing in the wrong venue which could have some adverse affects on your case.) Still in some situations they charge nothing at all. An example of this would be to file an Order of Protection in a domestic violence situation.

Also, keep in mind that the bankruptcy court has it’s own filing fee schedule, this phenomenon is not limited to just the state court system, though I will mostly be writing about the state courts in this posting. To file for a Chapter 7 bankruptcy the Federal Court charges $335.

Filing Fee: Waivers and Deferrals

So what happens if you cannot afford the filing fee? Three hundred thirty-eight dollars is a lot of money to pony up to be sure. The good news is there is a system in place that address this issue. If you cannot afford the filing fee you can apply to have it either waived or deferred.

The law –Ariz.Rev.Stat.12-302 -has a set of guidelines built in to help the court and their customers figure out who qualifies and who doesn’t when determining if the fee is either waived, deferred, or paid in full.

In a nutshell the law looks at the income of just the filing party and how many dependents they support. It then takes into account the current poverty guidelines established by the Federal Government.

AJCA §5-206(E)(1) in part states:

The applicant has a gross income that as computed on a monthly basis is one hundred fifty per cent or less of the current poverty level established by the United States department of health and human services.

It goes on to further state some exceptions:The applicant’s income is considered to be sufficient, but the applicant provides proof of extraordinary expenses, including medical expenses, costs of care for elderly or disabled family members or other expenses that are deemed extraordinary, that reduce the applicant’s gross monthly income to at or below one hundred fifty per cent of the current poverty level established by the United States department of health and human services. Gross monthly income includes the applicant’s share of community property income.”

Also if you are receiving certain benefits like TANF or food stamps you may qualify as well.

“The temporary assistance for needy families program established by … the social security act ..”

The food stamp program …”

What is the Difference Between a Waiver and a Deferral?

A deferral means that you will be billed later. Depending on your income, number of dependents and other factors you may have to pay a down payment of either $10 or 25% of the filing fee up front. While in other situations you don’t have to pay anything at all up front to have your case filed. Then the court will set you up on a payment plan. A word of caution. When you get the bill from the court, don’t ignore it. They will send you to collections and take your tax returns until it is paid in full.

The income level table can be found at the Arizona Judicial Branch’s website if you have time to search for it, or you can just contact a representative at Discount Divorce and Bankruptcy for more information.

If you still cannot afford the payment plan the court set you up on you can appeal it. The court will review the appeal and make the appropriate determination on your ability to pay.

Now on the other-side of the coin a waiver is just that. The court waives your fee and you don’t have to pay anything. §5-206(F) says:

The court shall grant a waiver if the court finds that the applicant is permanently unable to pay or if the applicant establishes by affidavit, including supporting documentation, that the applicant is receiving benefits pursuant to the supplemental security income program (42 U.S.C. §§ 1381 through 1385).

In other words if your getting SSI there is a good chance they may waive your filing fee.

I should also mention that the Bankruptcy Court operates differently when it comes to waiver and deferrals. In most cases everyone qualifies for a deferral as long as they put down at least $50 on the date they file their case. <

So if you’re like many thousands of Arizonians that are financially challenged and you have to file for a divorce, bankruptcy, or whatever and cannot come up with the court’s filing fee then there is help.

I like what Bill Gates, business magnate and philanthropist said, “I believe that if you show people the problems and you show them the solutions they will be moved to act.” And this is exactly what the lawmakers did. They made a program to help those who have to file but are struggling to make it happen.

We invite you to subscribe to Discount Divorce & Bankruptcy Twitter account: @discountdivorce and Facebook page: facebook.com/discountdivorce Both of these social media sites have value information.

Handwriting: It’s Important.

By James Jennings

We all know what “ugly handwriting” looks like. It’s the exact opposite of those beautiful neat and often calligraphic looking works of art that we all envy.

Ugly handwriting has poor rhythm and many inconsistencies. I was told as a child by an unsympathetic nun -I went to a private school run by evil women in penguin suits- that my handwriting resembled a garden – a garden with weeds. Well I couldn’t let that stand so I set to work to improve my handwriting. My handwriting became such a model of perfection that to this day it hangs on display at St. Gregory’s Catholic School in the First Grade classroom. Oh, and a quick shout out to Sister Thomas. If it wasn’t for your cruel words of inspiration that cut like a Roman Scourge I wouldn’t be the man I am today, an over achieving prima donna with handwriting that could make an angel weep.

Well enough of my bragging. Today, if you already haven’t guessed, I want to just say a few words about handwriting in general. Now and again I have people come into the office and want to start a case with us.

Usually the first step in any case is gathering information. To facilitate this we ask that our clients complete a questionnaire. The questionnaire will ask important information like, what’s your name, what’s the name of the other party, where do you live, and the like.

However, some people, for some reason, don’t think it’s necessary or important that the staff here at Discount Divorce and Bankruptcy should be able to read the answers to these questions. Well, nothing could be more important than being able to read your handwriting. We want to do a good job after all.

Imagine this. Imagine that you sat down with me to tell me about your case and you decided to put ear plugs in my ears. Do you think that I would be able to hear you? What if you thought it would be a good idea to speak to me in a foreign language like Swahili? Do you think that there would be effective communication between the two us? I bet not. So why would you write so poorly as to make the information you are trying to convey so difficult to understand? Why handicap your case from the very beginning?

Communication in any form, especially in the written form, is important. If we cannot read your handwriting then it makes our job of getting your case done quickly and efficiently near impossible.

Not to put too fine a point on it but I will give you a real life example. Last year I had a client come in to proof read and sign her documents. She is a real sweetheart with a bubbly personality but her handwriting was horrible. On her questionnaire that she filled out in the office she wrote what looked like an “s” but was actually a “g” in the spelling of her last name.

20160705_112032 — The letter “g” looks like an “s”.

This “g” also fooled my proof reader into thinking it was an “s” as well. So we printed all of her documents prior to her coming in – close to fifty pages- and gave them to her to proof read. This is when she told us that the name was spelled wrong. We had to correct the name in ALL the paperwork. This name appeared in the documents more than 100 times. It was her last name, the last name of her husband, and the last name of her three children. That’s a lot of changes because of one little letter being poorly written.

Moreover, if she had not caught this error it would have seriously set her case back if it got filed with this mistake. We would have to amend all the documents, ask the Court for permission to file them as amended (if it wasn’t caught soon enough), then refile them, and then re-serve them on her husband. All this could set her case back 60 or more days in some situations. Moreover, this would cost her additional fees for the process server. All over one letter.

Communication is a two way street. Not only do you have to give the information but the other person has to understand the information given. Take your time. Write nice.

I like what Mokokoma Mokhonoana,a writer of thought-provoking aphorisms once said, “A bad handwriting is as annoying to a reader … as an irritating voice is to a listener.”

I think Mokhonoana has a good point.

We invite you to subscribe to Discount Divorce & Bankruptcy Twitter account: @discountdivorce and Facebook page: facebook.com/discountdivorce Both of these social media sites have value information.