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.

absolute-digital-facebook-twitter

 

 

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.”

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.

absolute-digital-facebook-twitter

Changing Your Name

By James Jennings

There are a lot of reasons to change a name.  The most common reason I come across is because of divorce.  If I had to guess I would say that about 1 in 10 women want to go back to their maiden names after a divorce. I can even recall changing the name of the husband in two cases.  It’s rare that men take the last name of the wife but it does happen.  Most of the time it’s because their wife is from a well-known family and there is a certain prestige that is attached to that name.  But what about after the divorce?  Let’s say you kept your married name and then decide later that you want to revert back to your maiden name.  What about in situations where the children have a different last name than that of the parent that they live with?  In my career I have assisted a lot of people change their name, the names of their child and the name of the entire family.

The easiest and most inexpensive way is part of the divorce.  In fact it is free.  You have the right according to state law Ariz.Rev.Stat. §25-325(C) to restore any name you have previously had.  Keep in mind no one can make you go back to a former name.  So for example a husband cannot demand his wife go back to her maiden name.  It is purely voluntary.

Ariz.Rev.Stat. §25-325(C) states:

On request by a party at any time before the signing of the decree of dissolution or annulment by the court, the court shall order that the party’s requested former name be restored.

However, if you didn’t change your name as part of your divorce case or you just need to change your name or that of your kids it’s a little more complicated and that is what I am going to spend the majority of this article addressing.

Changing your name is a relatively simple procedure that can usually be done without a lawyer but it is highly recommended that you have a legal professional assist you.  Discount Divorce and Bankruptcy has done hundreds of these types of cases and just about anyone can change his or her name, for any good reason.

The first thing we have to do is prepare a petition.  The petition will establish the court’s jurisdiction in the case and state what you want to change your name to and why.  The why is critical.  If we do not state a valid reason then the case will crash and burn.

When the petition is filed with the court the court will want, what mobsters referrer to as their “taste”.  (Taste: a percentage of the take. Tony gets a big taste from bookmaking or racketeering but only a little taste from medical fraud.)

In other words they will want to charge you a filing fee.  Currently the filing fee in Maricopa County is $319.  WOW!  That hurts!  The good news is the court has a deferral program so if you cannot afford the filing fee up front they have a system in place were you can pay later or even possible get it waived all together.  If you have questions about the deferral program we are always happy to speak with you about it.

Once the petition is filed and the filing fee paid or deferred we will have to set up a hearing to get the name(s) change ordered by the court.  Each county has its own procedure for setting a hearing on the name change. We will set that hearing up for you so you don’t have to hassle with it.

At the hearing the judge will order the name change if they are convinced you are not changing your name to commit fraud, evade the government, get out of financial obligation(s), or for some other nefarious shenanigans. Once the judge signs the order changing the name, you will need to get a certified copy of the order from the Clerk of the Court. The Clerk will charge $27 to issue you a certified copy.  You can then contact Social Security, the Driver’s License Bureau, your bank, etc. to change your name in their records.

To amend your birth certificate, take or mail a certified copy of the Order to the Bureau of Vital Records, or its equivalent, in the state where you were born. Request that your birth certificate be changed to reflect your new name. There will be a fee for this (I know right,  the government and their fees.) In Arizona these records are maintained by the counties. You should contact the county where you were born.

To change the name of your children is slightly more complicated still but we can assist you every step of the way.  The procedure begins the same with the filing of the petition and setting up the hearing but you have to notify all interested parties of the children’s names being changed.

Typically, the children’s other parent will have to be notified of your application to change the children’s names because they are an interested party. If the other parent does not object, the simplest thing to do is have both parents sign the Petition. You can also have the other parent sign a consent to the name change. If the parent does not agree and sign a consent or the petition, then you must serve the petition upon him/her. If he/she does not object in writing or at the hearing, the court is likely to order the name change. If the other parent does object, the court is less likely to order the change, particularly if the other parent has maintained a relationship with the child. There may be other reasons the court will approve the name change even if the other parent objects.

If the other parent will not sign the consent, you will need to serve him/her with notice of the hearing on the name change. They can sign an acceptance of service, which says they received notice, or you may have him/her served by certified mail or a process server. If you serve them by certified mail, you must serve them at least 30 days before the hearing and they must have signed the return receipt for the certified mail. You will file the return receipt along with an Affidavit of Service by Certified Mail.  Of course Discount Divorce and Bankruptcy will handle all this for you.  After all that’s why you hired us.

If you do not know where the other parent is you may serve them by publication. First you must try to locate them. Contact any friends or family members, check their last employer, etc. If you still cannot find them you may serve them by publishing your Petition in a newspaper available to the general public in the county where they were last known to have lived and the county were you have filed.  The publication must be ran once per week for four consecutive weeks. Discount Divorce and Bankruptcy will handle all the publication for you.  We are really, really good at this.

There are many reasons for a name change and I have heard a lot of really good ones but I always liked what Jerry Spinelli, a contemporary American writer of children’s novels gave as a reason.

“I’m not my name. My name is something I wear, like a shirt. It gets worn. I outgrow it, I change it.”

That reason may or may not be a good one at a hearing before a judge deciding a name change case but it is a very creative reason nonetheless.

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.

absolute-digital-facebook-twitter

 

 

 

The High Rate of Divorce in Arizona

By James Jennings

dsc2330-975x500

Statistics show that half of all marriages crash and burn.  Studies also show that the longer you can keep the marriage going the less likelihood that it will end in divorce.  But here is the real good news; studies are showing that the divorce rate has been on the decline over the last decade and a half.

So why is the divorce rate on the decline over the last 15 years?  Well there is two reasons.  The average marriage lasting longer and younger people are cautious about committing to marriage making the average age of first time couples even higher.  “Marriage is so much more selective today,” says Bowling Green State University sociologist Susan Brown. From the 1940s until the 1970s, the typical women was barely 20 on her wedding day. Now she’s over 27.

-1x-1

One has to ask, what is the reason for this phenomenon? Blame the baby boomers. Boomers started divorcing at record rates in the 1970s and never stopped. While divorce fell somewhat among younger Americans over the past 25 years, it has soared among older adults. From 1990 to 2012, the divorce rate for 55 to 64-year-olds more than doubled, according to the Bowling Green’s National Center for Family & Marriage Research. The rate for people 65 and older tripled.

Will millennials be better at keeping their vows? Who knows. Just because you’re more selective doesn’t mean you won’t eventually get divorced. And it will take a while to discover the answer: First marriages that fail last a median of 12 years.

“We have no way of knowing what will happen to today’s marriages tomorrow,” says University of Maryland sociology professor Philip Cohen. The only thing sociologists can do is look at current behavior, as he does (based on the U.S. Census Bureau’s American Community Survey) and extrapolate it into the future. And right now, sociologists can only conclude that many millennials and Generation Xers are headed down the same path as baby boomers—toward midlife divorce.

And even if divorce rates continue to decline this doesn’t mean relationships and families are more stable. While fewer people marry, they’re still coupling up and living together. And these marriage-less couplings are far less likely to last than marriages are.

What Income Counts Toward Child Support and What Income Does Not?

By: James Jennings

child-support-arizona-300x246Many people are confused as to what income counts toward the calculation of child support and what income is exempt.  The calculation of Arizona child support is governed by Ariz.Rev.Stat. §25-320.  Section 320 of Title 25 makes for some very dry reading, so I will try to sum up the question about what is considered income and what is not.

First of all the Court uses Gross Income and not Net Income to calculate child support.

Gross income defined as:

An individual’s total personal income, before accounting for taxes or deductions. 2. A company’s revenue minus cost of goods sold. Also called gross profit and, when it is expressed as a percentage of revenue, gross margin.

And of course there are exceptions:  Gross Income does not include benefits from public assistance programs such as:

  • Temporary Assistance for  Needy Families (TANF)
  • Supplemental Social Security Income (SSI)
  • Nutrition Assistance (food stamps/EBT or  WIC)
  • General Assistance (GA)
  • Child support payments received

So what is considered as gross income for child support purposes?  Well that would be:

  • Salaries
  • Self-employment
  • Bonuses
  • Severance Pay
  • Worker’s Compensation Benefits
  • Unemployment Insurance Benefits
  • Wages
  • Income from a Business
  • Dividends
  • Pensions
  • Disability Insurance (including Social Security disability)
  • Rental Income
  • Annuities
  • Prizes
  • Royalties
  • Social Security Benefits
  • Commissions
  • Trust Income
  • Capital Gains
  • Recurring Gifts
  • Interest
  • Spousal Maintenance (alimony)

If a parent is unemployed or underemployed, you may ask the court to attribute income to that parent by entering the amount of what you think that parent would be earning if he or she worked at full earning capacity.

smiling-kids-in-a-circle

The court shall presume, in the absence of contrary testimony, that a non-primary residential parent (custodial parent) is capable of full-time employment at least at the federal adult minimum wage.  Currently, as of the writing of this blog post, that amount is $1394.26 per month.  That is $8.05 per hour for a 40 hour work week, multiplied by 4.33 weeks in a one month period.

So as you can see calculating child support can be a daunting task sometimes.  Just figuring out what counts as income and what doesn’t, isn’t always that cut and dry.

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 divorce or custody case call us today, 602-896-9020, email us at discountdivorce@msn.com, or visit our website at DiscountDivorcePro.com.

 

A Change in Community Property Laws for Arizona

2-2

By James Jennings

Senate Bill 1309 has passed and come August of 2016 will take effect.  SB1309 changes in the wording of Ariz.Rev.Stat. §25-318 and creates Ariz.Rev.Stat. §25-318.02.

In a nutshell it will make it very expensive for convicted criminals to be awarded any community property in a divorce or legal separation.  The changes to the community property statue,  Ariz.Rev.Stat. §25-318 and the newly created Ariz.Rev.Stat. §25-318.02 basically states that anyone convicted of a felony that carries a sentence of 80 years to life, with or without the possibility of parole may not be awarded community property unless the parties to the case have agreed to it.

Moreover, if one spouse has already been ordered to make installment payments to the other spouse, and the receiving spouse is subsequently convicted of a crime and sent to prison, the spouse making the payments can ask the court to modify his or her ongoing payment obligations.

This substantial change to the community property laws of Arizona is very punitive to felons with lengthy prison terms, but does lessen the burden of the other spouse so he or she can move on with their life in my opinion.

For more information about how this may effect your legal rights contact an attorney.

You may read SB1309 at: http://www.azleg.gov/FormatDocument.asp?inDoc=/legtext/52leg/2R/laws/0159.htm&Session_ID=115

 

Court Orders Mother to Stop Disparaging Father on Social Media

twitter-good-bad
After the divorce proceedings, an Arizona mother did not honor the “parenting agreement” by criticizing their child’s Father on Twitter. The divorce court placed a proverbial gag order on the parties, stating that neither party was not to make  disparaging comments about the other on social media.

 

The mother argued that the divorce court orders violated her constitutional rights.

 

So the question here is, is she right?  Can the divorce court stop her from speaking negatively about her former husband on social media?

 

Because the Father and Mother agreed to certain restrictions on their speech in their Joint Custody Agreement that Mother’s First Amendment Rights were not being infringed upon.  Therefore should could not post negative comments about her ex-husband on social media.

Source:

Nash v. Nash, 1 CA-CV-12-0039 1 CA-SV 12-0076, 1 CA-CV 12-0077 (Division 1, 07/23/2013)