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.

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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?'”

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.

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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.”

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.

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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:

  1. Contact family and friends of your spouse and ask if they know where they are;
  2. Contact the military and see if they are in the armed services;
  3. Contact the Arizona Department of Corrections and see if they have been incarcerated;
  4. Do an internet search and see if they turn up;
  5. 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.

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.

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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.

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.

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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.

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.

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