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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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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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.

 

Arizona Child Emancipation Laws

hr-lighthouse-teen-working-at-publixBy James Jennings

It is very common for most people that have an order for child support to pay that support until the child turns eighteen.  Now there are some circumstances when that support obligation goes beyond the child’s eighteenth birthday.

One example is the child’s eighteenth birthday is in February but the child does not graduate from high school until May of that same year.  Another example is the child is disabled in such a way that they can never obtain employment and has to be cared for the rest of their lives.  But what about circumstances when child support can end before the child’s eighteenth birthday?

This is were the state’s emancipation laws play a role.  In some situations and by the approval of the court, a person who is obligated to pay support can have that support order end before the child’s eighteenth birthday.

In Arizona back in 2005, the legislator decided that in order for a child to become emancipated, the child must be at least sixteen years old and meet a few of the following criteria in order to demonstrate their independence:

1. The child isn’t already married.

2. The child is both a U.S. resident and a resident of Arizona.

3. The child needs to have sufficient financial means to provide for himself or herself. The child can’t be getting things like medical care, food or housing from the parents.

4. The child needs to understand that all legal obligations that the parents have to care for the child are ended forever if emancipation is granted.

5. Typically, the child needs to be more than three months away from his or her 18th birthday. This process usually takes around 12 weeks, so applying with less time remaining is unnecessary.

6. The child is ready to tell his or her parents, and the child has read the official document titled “Information on Emancipation in Arizona.”

The law governing child emancipation is Ariz.Rev.Stat. 12-2451 and all petitions for child emancipation are filed with the Clerk of the Superior Court in the county in which the child resides.  The case is then adjudicated in Juvenile Court for that county.

The child seeking emancipation must show proof:

1. That he or she has been living apart from their parents for a least three months or;

2. A statement explaining why the home of their parent(s) or guardian(s) is not safe or healthy or;

3. A signed, notarized consent to your emancipation from a parent or guardian.

As of the writing of this post the Maricopa County Superior Court’s filing fee for a emancipation petition is $176 and if you want to contest the emancipation the Court charges $222 to file an Answer in protest.
ne_courtOnce the Petition for Emancipation is filed the Court will schedule a hearing, usually within 90 days. The Court will notify those required to receive notice of the hearing date and time. This would include the biological or adoptive parents, if living, and any current legal guardian. If whereabouts of the parent or legal guardian is unknown, be prepared to explain to the Court at the hearing why they cannot be locate and to prove to the Court everything done to try to find that parent or legal guardian.
Once the child has been emancipated then you can apply to have your child support stopped.  Child support is owed until you file a to have it stopped in Family Court and the court orders it so.  Child support will NOT automatically end when the child is emancipated.  This is a very common misconception.  The Juvenile Court will not stop your support.  That has to be done in Family Court. If you need assistance after the child has been emancipated to get your support stopped or if you have any questions, please call us at 602-896-9020 or email us at discountdivorce@msn.com
As always if you need legal advice you should contact an attorney.
Please check out our website at DiscountDivorcePro.com for additional information or to start a case.

 

A Change in Community Property Laws for Arizona

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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