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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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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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.

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The Myth of Gender Bias in Child Custody Cases

By James Jennings

We’ve all heard it at one time or another, “Women always get custody of the children.  It’s so unfair!”  Well is that really true?  Do women ALWAYS get custody of the children?

How about this one, “She won’t allow me to see the kids so that means I can’t see them anymore.”  That’s the one that really gets my goat.  You stop being a father because she said.  Really?

From a legal perspective, the Family Court in Arizona is obligated to focus on the best interests of the children.  Ariz.Rev.Stat. §25-403 is the statue that the court must take into consideration when determining which parent will have legal decision making authority (what most people call custody) and what the parenting time (what most people call visitation) will be in all cases regarding minor children.

§25-403(A) says in part:

The court shall determine legal decision-making and parenting time, either originally or on petition for modification, in accordance with the best interests of the child. …

You noticed what the standard here is?  The standard is: “… in accordance with the BEST INTEREST of the child”.

Does it say anything about male or female, mother or father, or anything else about gender?  No, the law is completely gender blind when it comes to custody determinations.  The only thing that the law cares about is the children and what is best for them.

This notion that men should automatically be deemed an inattentive, emotionally distant and a poor caretaker by virtue of his chromosomal makeup is silly.  Just as much a woman be presumed inherently skilled at care taking, being attentive to the emotional needs of her children, or a more nurturing parent purely by virtue of her uterus. All aspects of humanity are relative and the good people over at state legislator know this to be true.  That’s why they had the good sense to pass such an awesome law.

I have seen a lot of my male clients get custody of their children solely on the fact that it was better for the kids to have dad make all the major decisions regarding the kids than it was for mom to do it.  Women like men can have their faults and sometimes those faults are not conducive to raising a child.

The court looks at a lot of factors when determining who gets custody.  §25-403 has a whole laundry list of things that help judges make this determination.

The court shall consider all factors that are relevant to the child’s physical and emotional well-being, including:

1. The past, present and potential future relationship between the parent and the child.

2. The interaction and interrelationship of the child with the child’s parent or parents, the child’s siblings and any other person who may significantly affect the child’s best interest.

3. The child’s adjustment to home, school and community.

4. If the child is of suitable age and maturity, the wishes of the child as to legal decision-making and parenting time.

5. The mental and physical health of all individuals involved.

6. Which parent is more likely to allow the child frequent, meaningful and continuing contact with the other parent. This does not apply if the court determines that a parent is acting in good faith to protect the child from witnessing an act of domestic violence or being a victim of domestic violence or child abuse.

7. Whether one parent intentionally misled the court to cause an unnecessary delay, to increase the cost of litigation or to persuade the court to give a legal decision-making or a parenting time preference to that parent.

8. Whether there has been domestic violence or child abuse.

9. The nature and extent of coercion or duress used by a parent in obtaining an agreement regarding legal decision-making or parenting time.

10. Whether a parent has complied with chapter 3, article 5 of this title.

Number 10 is the required Parent Information Program or PIP class that all parents must take in a divorce, legal separation, annulment or paternity case filed in Arizona.  Don’t take this required class and you may find yourself not getting custody.  See Ariz.Rev.Stat. §25-351 for more details.

11. Whether either parent was convicted of an act of false reporting of child abuse or neglect under section 13-2907.02.

It is obviously, not all men make great fathers just like all women are not vindictive. The majority of cases I see involve two parents whose lives together didn’t work out, want what is best for their children and understand the role each parent plays. But divorce does strange things to people. They will sometimes act out of character and with the urging of friends and attorneys take on a “win at all costs” attitude. And when this takes place it is invariably the child that ends up losing the most.

If at all possible, both parents should work together and ask the court for Joint Legal Decision Making (Joint Custody).  Joint Legal Decision Making doesn’t mean that the children live half of the time with mom and the other half of the time with dad.  It means that BOTH parents will work together in making the decisions regarding the upbringing of their kids.   The will work in concert in deciding what school they go to. What doctors they see and what the treatment plan is should they become ill and so on.

I know from experience that most judges are happy to award Joint Legal Decision Making.  It far better to have two parents working together for their children than it is for one.

If you need assistance in preparing a Joint Legal Decision Making Parenting Plan as part of your case call me.  I have twenty years of experience and we can discuss all the options available to you so that you can come up with a plan that will work for you and pass the requirements of both the law and the court here in Arizona.

I like what Jane Dee Hall, the 20th Governor of Arizona said, “At the end of the day, the most overwhelming key to a child’s success is the positive involvement of parents.”

A truer thing has never been said.  Governor Hall was a wise woman.

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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Child Support Clearinghouse

By James Jennings

The Court has ordered you to pay child support.  So what’s next and were do I send my payments?  Intuitively most people would think I just send a check each month to the other party, that being the parent that was awarded legal decision making authority (also known as custody).  Well you’d be mostly wrong.  In Arizona all child support payments must go first through the state’s Support Payment Clearinghouse.

Arizona enacted Ariz.Rev.Stat. § 46-441 many years ago and it states:

Unless the court orders that support or maintenance be paid directly to the party entitled to receive it, all orders for support shall direct payment of support or maintenance through the support payment clearinghouse. All orders that specify payments through the clerk of the superior court shall be deemed to require payment to the support payment clearinghouse after a notice to the obligor is issued.”

So how this works is, in most cases, the court will instruct the payor (what they call the obligor) to send the child support payment to the Support Payment Clearinghouse. The payment will be recorded and a check issued to the payee (what they call the obligee). If the payor is employed, the payments will eventually be processed by Wage Assignment.

Wage Assignment

So what is a Wage Assignment exactly?  A Wage Assignment is another term for what the law calls an Order of Assignment. Most people think of it as a garnishment.  A Wage Assignment is ordered in every case and is an easy, convenient way for the payor to make a child support payment.

How the Wage Assignment Works

The court sends a copy of the Wage Assignment instructing an employer to automatically deduct child support from the payor’s paycheck to comply with a court order. The employer must send the payment to the Support Payment Clearinghouse within two business days of the date the employee (payor) is paid. The Support Payment Clearinghouse records the payment, and mails a check to the payee.

If the payor start a new job then they must:

  1. Give a copy of the Wage Assignment to the new employer.
  2. Within 10 days, notify the Clerk of the Superior Court and the Support Payment Clearinghouse in writing of the new employer’s name and address.
  3. Until a Wage Assignment is in effect with the new employer, the payor must make the payments directly to the Support Payment Clearinghouse.

Unemployed or Self Employed Payors

If the payor is not employed, self-employed or does not have a regular source of income, the convenience of the Wage Assignment process cannot be used to make child support payments. The payor must then  make payments directly to the Support Payment Clearinghouse.

The Logic Behind all of This

The reason this was made a law was for accountability. It is proof that the non-custodial parent or the parent ordered to pay child support has actually made the payments.

Ariz.Rev.Stat. § 46-441 goes on to further state:

The support payment clearinghouse shall have an accounting system for monitoring child support payments. The records of the support payment clearinghouse are prima facie evidence of payment or nonpayment of support.

On a positive note, this protects the payor of child support from any claims made by the other party that they did not pay child support.

What Happens if Payment isn’t Sent Through the Clearinghouse?

If you do NOT pay your child support through the Support Payment Clearinghouse then you will NOT be given credit for making your child support payment.  The Court will consider your “direct payments” as a gift to the other party and you WILL still owe the child support.

Ariz.Rev.Stat. § 46-441 goes on to further state:

Payment of any money directly to an obligee or to a person other than the support payment clearinghouse shall not be credited against the support obligation unless the direct payments were ordered by the court, or made pursuant to a written support agreement by the parties.

I have seen this time and time again.  People will come in and tell me that they are being sued for back support and they have canceled checks showing that they made direct payments to the other party and when they go to Court the judge says too bad.

I remember one case were a father went to court with his cancelled checks and showed the judge the checks.  In the memo space of each check it was written “For Child Support”

The judge said, “Show me in the law where you can make direct payments without a court order.”  Of course the dad couldn’t and the judge ordered him to pay back support. BANG BANG went the gavel and that was that.

It sucks.  It sucks bad but he was ordered to pay child support through the Support Payment Clearinghouse and he didn’t.  This was tantamount to contempt of a court order and the judge dropped the hammer on the guy.  He was upset to say the least.

What are the Alternatives to Making Payment Through the Clearinghouse?

The only way around not paying child support through the Support Payment Clearinghouse is by the order of the Court.  The only way that can happen is if a judge enters orders to that effect.

Some clients come into my office for a divorce, legal separation, or to establish child support and have real heart burn about paying support through the state’s Support Payment Clearinghouse.  They feel it is unnecessary and is government overreach. So they will have us prepare and file a Consent Decree stating that both parties are in agreement that all support payments will be sent directly to the person receiving child support and not through the Support Payment Clearinghouse as the law directs.

However, there are some draw backs on doing a Consent Decree.  A Consent Decree is not a silver bullet or a get out of jail free card when dealing with § 46-441.

First, the Court charges two filing fees when any wants to do a Consent Decree.  It’s like being double charged by the state.  These filing fees are not cheep.  As of the posting of this article Maricopa County Superior Court charges the Petitioner a fee of $338 and the Respondent a fee of $269.  Ouch! That’s $607 just in government fees.  The good news is the Respondent’s fee doesn’t have to be paid until the Consent Decree is ready to file and that is normally a couple of months after the initial filing in an uncontested case.

Second, if both parties want to fight it out in Court then a Consent Decree might not be possible.  Then it’s up to the trail judge if he or she wants to entertain the notion of direct pay and it’s been my experience most don’t.

Third, and may be the most important, is that even if you file a Consent Decree there is no guarantee a judge will approve of the parties agreeing to direct pay.  If this is the case the Judge will say no and reject the Consent Decree, thus sending it back to be redone and the direct pay clause being removed from the document.  You will be then out that extra $269 you paid the Court for the privilege of requesting direct pay.  The Court will NOT refund the Respondent’s filing fee.

So, is it worth the hassle of requesting direct pay?  That is for you to decide.  How opposed are you to sending a payment into the state each month for your children?  That’s a personal choice each couple has to make.  It may be cheaper and easier in the long run just to make the payment to the clearinghouse.  On the other hand some people like the thrill of rolling the dice and seeing what happens.

My Opinion

In my ever so humble opinion Ariz.Rev.Stat. § 46-441 is good public policy.  It protects that payor of child support and the children for whom the support is need.  But that is just my own personal opinion and like my dad always used to say, “Son opinions are like butt-holes, everyone has one and they usually stink.”  My father was truly an Irish sage.  I could always count on him for words of wisdom.

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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Let’s Talk about Wage Garnishment

By James Jennings

Creditors

Federal law places limits on how much judgment creditors can take from your paycheck. The amount that can be garnished is limited to 25% of your disposable earnings (what’s left after mandatory deductions) or the amount by which your weekly wages exceed 30 times the minimum wage, whichever is lower.

At the US Department of Labor’s website you can find some examples of how much money can be taken from your check. This is a great informational resource provided by the US government.

Child Support

More of your paycheck can be taken to pay child support. Up to 50% of your disposable earnings may be garnished to pay child support if you are currently supporting a spouse or a child who isn’t the subject of the order. If you aren’t supporting a spouse or child, up to 60% of your earnings may be taken. An additional 5% may be taken if you are more than 12 weeks in arrears.

It is important to note that child support in Arizona can be modified at anytime that amount of support would change by 15% or more.  It may be worth it to contact Discount Divorce & Bankruptcy and speak with someone about modifying your child support if you feel you are over or under paying child support.

Student Loan

The U.S. Department of Education (or any agency trying to collect a student loan on its behalf) can garnish up to 15% of your pay if you are in default on a student loan. No lawsuit or court order is required for this type of garnishment; if you are in default, your wages can be garnished.

Student loans are typically not forgiven in the bankruptcy process.  These loans will follow you to the grave in many cases.

Back Taxes

If you owe money to the IRS, watch out: The agency can take a big chunk of your wages, and it doesn’t have to get a court order first. The amount you get to keep depends on how many dependents you have and your standard deduction amount. Your employer will pay you a fairly low minimum amount each week and give the rest to the IRS.

The IRS must send a wage levy notice to your employer, who is required to give you a copy. The notice includes an exemption claim form, which you should complete and return.

State and local tax agencies also have the right to take some of your wages. In many states, however, the law limits how much the taxing authority can take.

How can Discount Divorce & Bankruptcy  help?

If you find yourself in a situation where you were served with a lawsuit by one of your creditors, Discount Divorce & Bankruptcy maybe able to help you.  We have successful helped more than 5,000 people file for Chapter 7 Bankruptcy here in Arizona since 1998.

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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