FEBRUARY 20, 2020
THE FAMILY LAW DISCOVERY PROCESS
When a legal action is filed in family law, the process leading up to resolution of the matter—whether it be through settlement or going to trial—begins immediately. Discovery is the step in which both parties are required to disclose certain information and also have the opportunity to request certain information to support their cases. Specific information must be automatically disclosed to the other party within a specified time frame after filing a family law case. A knowledgeable attorney can help you through this process to make sure you are in compliance with all of the Arizona Rules of Family Law Procedure.
Beyond the basic required disclosure in family-law matters, Discovery can include issuing interrogatories—requesting that the other party answer specific questions—and requests for production—requesting that the other party turn over specific documents. Discovery can further include conducting depositions, in which an attorney asks the opposing party questions in a recorded, face-to-face setting, which can be used in many ways, including at trial.
It is important to note that the discovery tools have their limits. Requested information must be relevant to the matter at issue and cannot be considered “privileged.”
Always remember that your social media posts and interactions, even private messages and text messages, are discoverable and can be used against you at trial. Use wisdom and discretion when posting to your social media accounts, especially if you are dealing with (or anticipate dealing with) a divorce or custody matter. In fact, it is most advisable to stay off of social media when you are involved in a legal dispute. And remember that anything you write can be used against you.
For more information or assistance in navigating your family-law matter or to schedule a consultation, contact The Huff Law Firm at (520) 274-7020. The Huff Law Firm provides clients with over 20 years of collective practice experience as a full-service, family-centered law firm representing clients in family law, juvenile law, adoption, appeals, wills, and probate matters.
MAY 22, 2019
DAN HUFF JOINS BOARD OF DIRECTORS FOR AMPHI FOUNDATION
I am humbled and honored to be appointed to the Board of Directors of the Amphi Foundation. I officially begin my term this summer and I very much look forward to it!
The mission of the Amphi Foundation is to promote academic excellence through the expansion of resources that enrich the education, development, and well-being of the students of the Amphitheater Public School District. The Foundation raises and invests over $200,000 annually directly back into Amphi classrooms.
The Amphi District is one of Arizona’s largest school districts and serves a highly diverse population in North and Northwest Tucson. Amphi has a long history of academic excellence and has schools that consistently perform among the very highest in Arizona.
Please contact me for more information or check out AmphiFoundation.org!
MAY 3, 2019
WELCOME TO LAURA HUFF!
It is with great enthusiasm that The Huff Law Firm welcomes attorney Laura J. Huff to the firm! Laura brings a wealth of legal expertise to her practice having previously litigated as a family law trial attorney in Tucson. Additionally, Laura has dedicated the past nearly eight years to juvenile law and appellate practice as an Assistant Attorney General for the Arizona Attorney General’s Office. Laura has argued cases before the Arizona Court of Appeals and the Arizona Supreme Court. She has also served in leadership roles in the State Bar of Arizona. Laura looks forward to assisting clients in family law, juvenile law, wills, probate, and appellate matters.
The Huff Law Firm provides clients with twenty years of law practice experience in family law, juvenile law, adoptions, appeals, wills, and probate matters. We provide each client with highly skilled counsel and comprehensive approaches to legal issues. Please call us at 520-274-7020 for more information or to schedule a consultation.
MARCH 9, 2019
THE HUFF LAW FIRM TURNS ONE!
One year ago The Huff Law Firm began with a distinct vision: to provide clients with the highest quality of personalized legal services at affordable rates as a leading law firm in Southern Arizona. We also aimed to serve as an engine for community service in the greater Tucson area. It is with tremendous gratitude to our clients, colleagues, friends, and family that we celebrate the firm’s first year and that we have exceeded these goals in every metric.
In the last twelve months, we have served clients across the metro area, ranging from Vail to Marana, Sahuarita to Oro Valley, and everywhere in between. We have had the privilege of representing clients in a wide range of family law issues. We have also represented clients in juvenile law and adoption matters. We have endeavored to provide each client with highly-skilled counsel and comprehensive approaches to resolve their respective issues.
Additionally, we have committed substantial time to serving our community. As a member of the Regional Partnership Council of Arizona’s First Things First, attorney Dan Huff has worked with community partners to identify effective and innovative means to improve outcomes for children aged birth to five. Dan has also worked to protect and restore the nineteenth-century Steam Pump Ranch as a public resource as the Chair of Oro Valley’s Historic Preservation Commission over the past four years. Further, Dan has volunteered as a Judge Pro Tem in Pima County Superior Court in family law cases and provided pro bono services for clients, including through Step Up To Justice (a legal center for low-income individuals in Pima County). Dan also devotes time to serving on two executive councils of the State Bar of Arizona.
As we reflect on the past year, we appreciate the tremendous support that we have received from the community. We are exceedingly appreciative of our partners and dedicated to the continued provision of the highest quality of legal services to our clients. As a result, the firm has experienced significant and continued growth. We will soon announce the next phase of the firm and its commitment to the delivery of legal services to our clients. We are truly humbled by the continued support from all of you as the firm turns one!
JANUARY 6, 2019
Important Tax Law Changes Significantly Impact Considerations in Divorce
The dawning of a new year has ushered in new modifications to the federal tax code—changes that will have considerable consequences for parties engaged in the divorce process.
Perhaps the tax law change grabbing the most headlines has been the elimination of the tax deduction for spousal maintenance (alimony) paid and the attendant elimination of spousal maintenance received as taxable income. This long-standing principle is long gone beginning this year. This change will mean that high-income earners and/or high-net-worth individuals going through the divorce process will argue for reduced spousal maintenance payments because the tax deduction is no longer available to them. Conversely, individuals who will receive spousal maintenance will be arguing for increased awards of spousal maintenance because such funds are no longer considered taxable income.
It is important to note that for individuals who were already divorced by the end of 2018, or (arguably) those who had entered into a binding agreement regarding spousal maintenance with the requisite provisions, will continue to enjoy the benefits of the former tax treatment for spousal maintenance. However, such individuals should exercise caution when modifying spousal maintenance in the future so as to avoid the loss of the former tax treatment on spousal maintenance paid and received.
Additionally, the changes in the tax law require parties to prenuptial agreements and/or similar agreements entered into after the date of marriage to become aware of the new tax-law terrain and the effect of these changes on their agreements going forward.
Finally, the tax law changes include changes to the dependent exemptions enjoyed by parents regarding their children. Although the exemption has been eliminated for a period of time, the child tax credit has increased in value—along with the value of the standard deduction afforded to individuals.
If you are going through a divorce or planning to do so in the near future, it is vital that you understand the new tax law and the interplay between these recent changes and the division of your assets and debts. It is of immense value to you to engage a competent attorney and a financial professional in order to understand the tax consequences of your decisions made in your divorce. Always remember that there are numerous ways to divide your assets and debts in a divorce and it is worth your while to be informed in the process.
For more information about the divorce process, the new tax law frontier, and protecting your interests in a divorce, or to schedule a consultation, contact The Huff Law Firm at (520) 241-3722.
AUGUST 20, 2018
Does Arizona Law Favor Mothers in Custody Disputes involving Legal Decision-Making and Parenting Time Orders?
State laws across the country vary regarding the factors relevant in determining legal decision-making and parenting time in custody disputes between parents. Legal decision-making refers to the “right and responsibility to make all nonemergency legal decisions for a child including those regarding education, health care, religious training and personal care decisions.” Arizona Revised Statutes (A.R.S.) § 25-401(3). Parenting time refers to “the schedule of time during which each parent has access to a child at specified times.” A.R.S. § 25-401.
Historically, most states have had express or implied legal preferences favoring mothers in custodial disputes. For a significant time, society perceived mothers to be in a superior position in ability to meet the needs of children. However, over time many states have shifted to a more neutral legal scheme. And although many states continue to favor mothers in custody disputes, Arizona law dictates that parents should share joint legal decision-making and equal parenting time, barring some exceptions.
In order for one parent to “move the needle” from an equal custody arrangement, s/he must prove to the court that the other parent poses a risk to a child’s welfare. Such risks include, but are not limited to, a history of domestic violence, child abuse, substance abuse, serious criminal activity, or mental health issues. These risks or issues are relevant in proceedings to either establish or modify custody orders.
For more information about establishing or modifying parenting time and/or legal decision-making orders, or to schedule a consultation, contact The Huff Law Firm at (520) 241-3722.
JUNE 15, 2018
Arizona’s First Things First
The Huff Law Firm, PLLC is honored to announce that the State Board of First Things First has appointed attorney Dan Huff as a Regional Council Member. First Things First promotes healthy development in children from birth to age five.
MAY 26, 2018
What Can I Expect In A Divorce?
In working with clients through the divorce process, I am frequently asked about the twists and turns of divorce, the length of time the process can take, the documents that are required for disclosure to the other spouse, and whether the Court can enter orders during the course of a divorce. In this article, I will work to address many of these frequently asked questions.
In terms of a timeline, under A.R.S. § 25-329, a party is required to wait at least sixty days from the date of serving the other spouse with divorce paperwork before requesting that the Court enter a Decree of Dissolution of Marriage. Once the Court enters the Decree, the divorce is finalized and, in the eyes of the law, each spouse is returned to the status of a single person. However, in order for a divorce to be concluded in sixty days—a remarkably short time period in terms of divorce—one spouse has to either be in default or the two spouses must reach full and swift agreement on the terms of the divorce.
It is important to understand the different paths that a divorce can take. At the outset, the initiating spouse (known as the Petitioner) files a Petition for Dissolution of Marriage (or Legal Separation). The initiating spouse must then have the other spouse (known as the Respondent) served with the paperwork. At this point, the divorce process can diverge in several directions.
First, the Respondent can fail to respond within the legal timeframe (ranging from twenty to thirty days, depending on circumstances). This begins the default process. The Petitioner may then apply for a default with the Court. The Respondent receives notice that the default process is underway. The Petitioner may then request a default hearing from the Court. The Court then sets a hearing and at that hearing the Court may enter the Decree and thus finalize the divorce. It is important to note that the default hearing process varies between counties and can quickly change even within the same Court.
Next, if the Respondent disputes any of the claims in the Petition, s/he may file a Response. After the filing of the Response, the parties have a number of opportunities to work to settle the case. Depending on specific circumstances, the parties may have mediation, a formal settlement conference, and/or informal settlement discussions with legal counsel.
During this process, the parties are also required to freely exchange relevant documents to better assist in reaching resolution of issues. Known as the discovery and disclosure process, the parties must exchange banking records (for at least six months preceding the filing of the Petition), income information, property deeds/purchase agreements, retirement and/or investment account information, business tax returns, and lists of personal property. During the discovery and disclosure and settlement process, the parties may reach full agreement on the issues in the divorce. The Court may then approve the agreement and enter the Decree, or the Court may deny specific aspects of the agreement. A denial would require the parties to renegotiate that issue or proceed to trial on that issue before the Court would enter the Decree and finalize the divorce. Alternatively, if the parties reach agreement on only certain issues, the remaining issues would be decided by the Court at trial in order to resolve the issues and finalize the divorce.
Finally, parties have the option to fully agree on all issues in the divorce and execute what is known as a Consent Decree. As with the default process, the process for a Consent Decree may vary depending on the county in which the Court is located. Generally, the Consent Decree may be submitted to the Court for the Court’s consideration without a hearing. However, the Court may hold a hearing on the Consent Decree before approving it. In either event, once the Court approves the Consent Decree, the divorce is finalized.
Depending on the path of the divorce, the process can be resolved within sixty days, or it can extend for months (or even a period of years) before final resolution is achieved. Typically, the divorce process can be fully resolved within one year.
Given the duration of the process, it is important to know that one or both parties may obtain temporary orders from the Court while the divorce is pending. These temporary orders can address parenting time, legal decision-making, child support, spousal maintenance, certain property or debt issues, and even attorney’s fees. Requests for temporary orders may be filed at any time after the Petition is filed but before any trial to resolve the final issues of the divorce.
Because the divorce process can be lengthy and complex, it is vital to consult with competent legal counsel regarding your rights and obligations. If you would like more information regarding divorce, or you want to schedule a consultation, please contact The Huff Law Firm at 520-241-3722.
– By Dan Huff
MAY 12, 2018
Highlights in Modifying or Terminating Spousal Maintenance
In the aftermath of a divorce or legal separation, a party may desire to change the terms of a spousal maintenance award. This desire could stem from a reduction in income making payment of spousal maintenance difficult, or a disability making future employment prospects highly questionable.
In Arizona, following the entry of an award for spousal maintenance, a party can request that the court modify the terms of an award or terminate the award altogether—so long as the parties did not originally agree that spousal maintenance would be non-modifiable, pursuant to A.R.S. § 25-317(G) or -319(C). If parties agreed that maintenance would be non-modifiable, the court is unable to indulge either party in an attempt to change an award’s terms.
However, absent such a term in an agreement, a party may request an adjustment to spousal maintenance if he or she can meet specific requirements.
Arizona law permits the court to modify maintenance if a party can show that her financial circumstances have changed and that such a change is substantial and continuing. See A.R.S. § 25-327(A). The critical element to succeeding in a modification claim is showing the court that circumstances have changed in comparison to the circumstances that existed at the time of the entry of the divorce decree. If a divorce decree lacks specificity regarding modifiability, the court may adjust the duration of maintenance if a substantial and continuing change of circumstances exists that directly impacts the initial purpose or need for spousal maintenance. Schroeder v. Schroeder, 161 Ariz. 316, 778 P.2d 1212 (1989).
Further, Arizona law provides for the termination of spousal maintenance under certain circumstances. The court maintains the ability to modify or terminate maintenance for the time period that maintenance is awarded, under A.R.S. § 25-319(D). Additionally, an award of spousal maintenance terminates upon the death of either party or the remarriage of the party benefiting from the award—so long as alternate terms were not included in the decree. See A.R.S. § 25-327(B).
It is important to be mindful of timelines when considering whether a modification or termination is appropriate. Seeking the advice of a qualified attorney is very important in protecting your interests relating to a maintenance award. If you would like more information regarding spousal maintenance, or to schedule a consultation, contact The Huff Law Firm at 520-241-3722.
– By Dan Huff
MAY 5, 2018
Minor Guardianships: What Are Your Options and What Exactly is Involved?
A minor guardianship is an excellent vehicle to secure permanency and stability for a child whose primary caretaker is not his biological or legal parent. Guardianships empower non-parental caretakers to make important day-to-day decisions for the general welfare of children.
Arizona law provides for two types of guardianships and this article will discuss each type in turn.
First, a minor guardianship established through the Probate Court is known as a Title 14 Guardianship. See A.R.S. § 14-5201, et seq. These guardianships require a child’s legal parents to consent in order for the Court to approve the guardianship. If a child has two legal parents, the Court will need proof that both parents consent to the guardianship or that the petitioner for the guardianship has made legally sufficient efforts to notify the legal parents. Title 14 Guardianship can be established to span only a specified period of time or remain effective until a child reaches adulthood at age eighteen. Importantly, Title 14 Guardianships are revocable by a child’s legal parents through a court process. In other words, Title 14 Guardianships are not “permanent.” Additionally, Arizona law provides for a guardian to request approval from the Probate Court to resign as the legal guardian.
The second type of minor guardianship is established through the Juvenile Court and is known as a Title 8 Guardianship. See A.R.S. § 8-871, et seq. A Title 8 Guardianship may be approved through a private dependency court process or through a dependency case initiated by the Department of Child Safety (formerly CPS). These guardianships do not require a child’s legal parents to consent in order for the Court to approve the guardianship. Although a petitioner will need to notify all legal parents of a child, the Court does not require parental approval. Title 8 Guardianships are also known as “Permanent Guardianships” because they are intended to be just that—permanent. The Legislature intended Title 8 Guardianships to remain in tact until children reached the age of majority. Although Arizona law does provide—in extenuating circumstances—for Title 8 Guardianships to be revoked, a legal parent is required to make a specific showing to the Court that his or her life circumstances have significantly changed in order to revoke the guardianship.
Also, under a Title 8 Guardianship, a legal parent’s rights to a child are substantially restricted. Indeed, a legal parent cannot take physical custody of her child absent Court approval. Additionally, the Court must be involved in modifying the terms of the guardianship, approving co-guardians, etc.
Guardianships are vital to ensuring the safety and well-being of minor children whose legal parents are unavailable, unwilling, or unable to meet the day-to-day needs of their children. For more information about minor guardianships, or to schedule a consultation, contact The Huff Law Firm at (520) 241-3722.
– By Dan Huff
APRIL 26, 2018
How To Intervene In A Juvenile Dependency Case–Particularly If You Are A Grandparent
If you know of a child who is the subject of a dependency case in court and you want to have a greater voice in the process, you may want to consider requesting to intervene in the dependency. Arizona law affords an individual the ability to intervene in a dependency action, to attain “party status,” and to participate as a bona fide litigant in order to further serve a child’s best interest. An intervenor simply has greater influence in the case. Often grandparents are the ideal candidates for intervention in dependencies involving their grandchildren.
From a legal standpoint, when the court receives a request for intervention, the court determines whether permissive intervention is warranted under the Arizona Rules of Civil Procedure. Specifically, permissive intervention is supported when (1) “a statute confers a conditional right to intervene,” or (2) when a “claim or defense and the main action have a question of law or fact in common.”[i] To that end, the Arizona Supreme Court has determined that the analysis under the Rules of Civil Procedure “should be liberally construed with the view of assisting parties in obtaining justice and protecting their rights.”[ii] Put simply, the court should generously allow a prospective intervenor to gain party status in a dependency so long as the intervenor’s involvement will work toward serving the child’s best interest and achieving a permanent home for the child.
If the court determines that a prospective intervenor has met the threshold requirements described above[iii], the court must then decide whether a party already in the case opposes that intervention. If opposition exists, the court must determine whether the opposing party “has made a sufficient showing that intervention is not in the child’s best interest.”[iv] The burden is on that party.
Ultimately, the court must consider several factors in deciding whether an individual can intervene. These include:
- the prospective intervenor’s interest in the case,
- her standing to raise relevant issues,
- the legal position she seeks to advance,
- whether previously denied intervention should be reconsidered,
- whether an existing party sufficiently represents the intervenor’s legal position,
- whether intervention will unduly delay the case, and
- whether the intervenor will significantly contribute to the progression of the case.[v]
Unless these factors show that intervention would not be in a child’s best interest, the court should grant intervention.[vi]
It is important to remember that special consideration is provided for grandparents of children involved in dependencies who wish to intervene. In fact, the Arizona Supreme Court has recognized the importance of involving grandparents in dependencies, finding that “grandparents . . . should be allowed to intervene in the dependency process unless a specific showing is made that the best interest of the child would not be served.”[vii] Additionally, Arizona law recognizes the elevated status that grandparents enjoy under statutory placement preferences for children subject to dependencies.[viii]
The dependency process is challenging for families. But the law has provided viable options for individuals close to a child to engage in the process as parties. And if you are a grandparent of a child involved in a dependency, recognize that your vital role in your grandchild’s life and in maintaining the “integrity of the family” has particular legal significance when you seek to intervene in a dependency.[ix]
Always seek the guidance and advice of a competent attorney to discuss the dependency process with you as you determine how best to support the child involved in the process. For more information about the dependency process, or to schedule a consultation, contact The Huff Law Firm at (520) 241-3722.
– By Dan Huff
[i] Rule 24, Arizona Rules of Civil Procedure.
[ii] Bechtel v. Rose, 150 Ariz. 68, 72 (1986) (internal citation omitted).
[iii] Bechtel, 150 Ariz. at 72.
[iv] Allen v. Chon-Lopez, 214 Ariz. 361, (App. 2007) (citing Bechtel, 150 Ariz. at 73).
[v] Bechtel, 150 Ariz. at 72.
[vi] Bechtel, 150 Ariz. at 74.
[vii] Allen v. Chon-Lopez, 214 Ariz. 361 (citing Bechtel, 150 Ariz. at 73).
[viii] A.R.S. § 8-845(A).
[ix] Bechtel, 150 Ariz. at 74-75.
APRIL 20, 2018
How Can Grandparents or Third Parties Request Visitation With a Child?
When divorce or legal separation happens in a family, it can have a wide-ranging impact on extended family members and “third parties” who wish to maintain their close relationships with the children who are involved. If a parent is unwilling to allow a child to see a grandparent or third party following a divorce or separation, the grandparent/third party may feel powerless and devastated by the loss of contact with the child.
However, Arizona law provides the opportunity for grandparents and third parties to continue to foster their relationships with such children through court-ordered visitation. The process has specific eligibility requirements for obtaining court-ordered visitation and a knowledgeable attorney can advise clients on how best to navigate the system under given circumstances.
Arizona Revised Statute § 25-409 affords grandparents or third parties the ability to ask the court for visitation orders but only under certain terms. These include:
•one of the legal parents being deceased or missing for three months, or
•the child having been born out of wedlock and the legal parents not being married when the petition is filed, or
•(in the case of grandparents) the marriage of the legal parents having been dissolved for three months or more, or
•(in the case of third parties claiming that they have stood “in the place of a [child’s] parent”) a petition for dissolution of marriage or legal separation of the legal parents having been filed and pending before the court.
These requirements significantly narrow the circumstances in which grandparents or third parties can seek court-ordered visitation with a child. If a grandparent or third party meets this threshold, the court gives special consideration to the legal parents’ opinions regarding what is in their child’s best interest. The court also considers the strength of the relationship between the grandparent or third party and the child, the motivation for seeking visitation, the motivation of anyone objecting to such visitation, how much visitation is being requested and how that visitation will impact the child’s regular routine, and in the case of one or both of the legal parents being deceased, the importance of a child maintaining an extended family relationship.
The court has a significant interest in ensuring that a child’s best interests are served. After the dust has settled post-divorce or legal separation, family dynamics are forever altered. But the legal process provides for grandparents and third parties to seek help from the court in securing continuity for children and preserving extended family relationships.
For more information about third party visitation, or to schedule a consultation, contact The Huff Law Firm at (520) 241-3722.
– By Dan Huff
APRIL 17, 2018
Five Things To Know About Legal Decision-Making
In Arizona, legal decision-making (LDM) often goes hand-in-hand with parenting time. State law details precisely what is included in LDM and the process for establishing or modifying LDM. Inevitably, the process involves unforeseen twists and turns—and too many to detail here. Nevertheless, here are five things that you need to know about legal decision-making:
1. Legal decision-making refers to the “right and responsibility to make all nonemergency legal decisions for a child including those regarding education, health care, religious training and personal care decisions.” Arizona Revised Statutes (A.R.S.) § 25-401(3). Put simply, LDM is “legal custody.”
2. The authority for legal decision-making for a child can be shared between two parents or held only by one parent alone. Joint LDM empowers both parents to make decisions for a child without either parent’s rights or responsibilities eclipsing those of the other. Sole LDM refers to one parent exercising superior decision-making authority over the other regarding a child. Importantly, LDM authority can be delegated regarding specific decisions (e.g. religious or educational issues) between the parents either by the court or the parents in final, negotiated judgments or orders.
3. A parent can request LDM in any proceeding concerning divorce or legal separation, annulment, paternity, or modification of prior orders. A.R.S. § 25-402(B)(1). Additionally, a third party, such as a grandparent, can request LDM from the court under A.R.S. § 25-409. This statute is frequently referred to as the “grandparents’ rights” statute. A competent attorney can assist you in developing a sound strategy for addressing your LDM issues.
4. In determining LDM, the court analyzes what serves a child’s best interest. A.R.S. § 25-403(A). This means that the court reviews LDM through the lens of ensuring a child’s physical and emotional well-being. Arizona law defines relevant factors for the court to consider, including a child’s past, present and potential future relationship with a parent; a child’s interaction with her parents and/or siblings; a child’s adjustment to his environments; a child’s wishes once she reaches a “suitable age”; all parties’ mental and physical health; if one parent is more likely than the other to allow a child to have meaningful contact with the other parent; whether one parent has misled the court or delayed the proceedings; whether domestic violence or child abuse has existed; if coercion or duress has been used by a parent to reach an LDM agreement; whether a parent has completed the domestic relations education program; and whether either parent has falsely reported child abuse or neglect.
5. The court should work to expedite hearings for LDM. State law encourages hearings within sixty days of filing, absent certain exceptions. A.R.S. § 25-407.
For more information about legal decision-making, or to schedule a consultation, contact The Huff Law Firm at (520) 241-3722.
– By Dan Huff
APRIL 14, 2018
The Top Ten Tips About Adoptions in Arizona
- In Arizona, “any adult resident . . . whether married, unmarried or legally separated” is eligible for qualification to adopt a child. Arizona Revised Statutes (A.R.S.) § 8-103. Additionally, Arizona law provides for nonresidents to adopt. Arizona law has specific provisions regarding step-parent adoptions as well.
- Adoptions by same-sex couples are legally recognized. This has been a rapidly changing area of the law in recent years. In November 2014, the Ninth Circuit Court of Appeals struck down Arizona’s ban on same-sex marriage. The Department of Child Safety (DCS) began issuing adoption licenses to same-sex couples that month through February 2015. DCS recommenced issuing adoption licenses to same-sex couples in April 2015 when Arizona Governor Doug Ducey changed state policy to allow same-sex couples to adopt. In March 2016, the U.S. Supreme Court upheld same-sex adoptions.
- Under A.R.S. § 8-102, “. . . only a child, or a foreign-born person who is twenty-one years of age or less and who is not an illegal alien, who is present within [Arizona] at the time the petition for adoption is filed may be adopted.”
- Adoptions require the termination of the birth parents’ parental rights or the consent of the birth parents. Adoptive parents are encouraged to consult with a knowledgeable attorney to discuss any issues regarding a birth parent’s ability to revoke his or her consent and/or cases involving the Indian Child Welfare Act (ICWA). The ICWA is invoked in cases involving children who are affiliated with any federally recognized Native American or Indian tribes or nations.
- A minor over the age of twelve at the time of her or his adoption hearing must consent to the adoption in writing.
- In an adoption matter involving a child in foster care, DCS must consent to the adoption. However, the trial court may waive the requirement for DCS’s consent under A.R.S. § 8-106 if, after a hearing, the court finds that the child’s best interests are served by the adoption.
- In an adoption matter involving a child in foster care, a pre-adoption certification is required if the adoptive parents are not closely related to the child. Arizona law defines such a close relationship as an uncle, aunt, adult sibling, grandparent, or great-grandparent. Such a relationship can be established by blood, half-blood, adoption, or marriage. Adoptive parents serving as licensed foster parents of a child are also exempt from the certification requirement. If certification is required, a home study must be completed.
- A birth parent can enter into an agreement regarding post-adoption contact with the child. The agreement can be signed by the birth parent whose parental rights have been terminated or who has signed or intends to sign a relinquishment of parental rights. If an agreement is executed, the original agreement should be filed in court along with the adoption petition. Importantly, failure to comply with the terms of the agreement is not grounds to set aside an adoption decree/order or to revoke an executed relinquishment of parental rights.
- Arizona has a Putative Father Registry for potential fathers to assert or preserve their parental rights over their respective children. Arizona law has developed to strictly apply the registration requirements of the Putative Father Registry. Such requirements include particular timeframes requiring specific action by potential fathers. It is important for potential fathers and prospective adoptive parents to consult with competent legal counsel for advice on addressing such issues.
- Under the Interstate Compact on the Placement of Children (ICPC), adoptions can be finalized in Arizona for children who are placed outside of the state. The ICPC process has specific requirements that can present obstacles to the adoption process if not followed.
For more information about adoptions, or to schedule a consultation, contact The Huff Law Firm at (520) 241-3722.
– By Dan Huff
APRIL 10, 2018
Spousal Maintenance (Alimony): What Can You Expect?
You likely have a friend or family member who has discussed his or her alimony award or obligation after the divorce process has concluded—perhaps with glee or disdain. In Arizona, alimony is known as “spousal maintenance.”
Over time, the view of Arizona courts regarding spousal maintenance has changed dramatically. Decades ago, a lower-earning spouse could expect a substantial spousal maintenance award that lasted an extended period of time. As time has progressed, the trend is toward reduced awards. Currently, the court’s view appears to be supportive of reasonable spousal maintenance awards for lower-earning spouses to allow such spouses time to “get on their feet,” acquire necessary skills for the job market, and to become gainfully employed before their spousal maintenance awards terminate.
Arizona law dictates that spousal maintenance is a financial obligation requiring the transfer of income from one spouse to another. An award of spousal maintenance is not a property right, but it is related to the division of marital property in a dissolution of marriage proceeding. What this means is that the higher the value in property that a spouse receives in a divorce, the lower that spouse’s need is for spousal maintenance.
According to Arizona Revised Statute (A.R.S.) § 25-319, a spouse seeking an award of spousal maintenance (“seeking spouse”) must be able to prove that he or she is incapable of financially supporting himself or herself independently. Section 25-319 details the eligibility requirements/factors of a spousal maintenance award, and includes that a seeking spouse:
- Lacks sufficient property, including property apportioned to the spouse, to provide for that spouse’s reasonable needs.
- Is unable to be self-sufficient through appropriate employment or is the custodian of a child whose age or condition is such that the custodian should not be required to seek employment outside the home or lacks earning ability in the labor market adequate to be self-sufficient.
- Contributed to the educational opportunities of the other spouse.
- Had a marriage of long duration and is of an age that may preclude the possibility of gaining employment adequate to be self-sufficient.
The first, second, and fourth factors pertain to the seeking spouse’s inability to provide for his or her own financial needs.
In order to determine the seeking spouse’s “need” for financial support, judges usually compare the seeking spouse’s reasonable living expenses with his anticipated income—through employment or alternate sources. Judges typically focus on the seeking spouse’s total income, inclusive of unearned income and income-producing assets that have been awarded to that spouse. Importantly, Arizona law does not force a seeking spouse to “use up” the principal value of her investments instead of being awarded spousal maintenance. Indeed, Arizona courts generally only consider the income generated from the principal investment of a seeking spouse’s portfolio (i.e. interest income) in determining an appropriate spousal maintenance award.
Once a judge determines that a spouse is eligible for a spousal maintenance award, the judge must then determine the amount and duration of the award. The Arizona Legislature has incorporated a number of factors for the court to consider in making this decision.
Under A.R.S. § 25-319(B), the court should consider (be prepared for a dense list of factors . . .) the standard of living established during the marriage, the length of the marriage, the age/employment history/earning capacity/physical and emotional state of the seeking spouse, the ability of the non-seeking spouse to meet his or her own needs while also meeting the financial needs of the seeking spouse, the financial resources of the two spouses and their earning capacities, how the seeking spouse contributed to the non-seeking spouse’s income-earning capacity, the extent that the seeking spouse has sacrificed career opportunities for the betterment of the non-seeking spouse, the spouses’ abilities to contribute to their children’s educational costs post-dissolution, the financial resources of the seeking spouse and his or her ability to meet his or her needs independently, the time needed for the seeking spouse to acquire new employment skills or education, any abnormal expenditures or fraudulent disposition of marital property, health insurance cost considerations, and consideration of judgments from criminal conduct of either spouse where the other spouse or a child was the victim.
Additionally, if the parties agree, an award of spousal maintenance can be non-modifiable. This means that years later, one spouse cannot seek a new court order changing the terms of the spousal maintenance award. If such a provision is not included in a decree of dissolution or legal separation, either spouse may later request that the court modify or change the terms, including the amount or duration of the award, based on changed circumstances.
Spousal maintenance can seem like a wide-open field in terms of the amount or length of time of the awards. Judges have broad discretion in deciding the issue of spousal maintenance. Also, the new tax law eliminates the “alimony deduction” for a spouse paying spousal maintenance, beginning in 2019. Because of all of this, a knowledgeable attorney can assist you in determining how best to address the issue of spousal maintenance in your divorce or legal separation—or in the modification of a past order.
For more information about spousal maintenance, or to schedule a consultation, contact The Huff Law Firm at (520) 241-3722.
– By Dan Huff
. See Deatherage v. Deatherage, 140 Ariz. 317, 319, 681 P.2d 469, 471 (App. 1984) (trial court must find that a spouse lacks sufficient property and appropriate employment or the ability to earn income to support himself as a prerequisite to a spousal maintenance award); See also Rainwater v. Rainwater, 177 Ariz. 500, 502, 869 P.2d 176, 178 (App. 1993).
. Deatherage, 140 Ariz. at 321.
APRIL 6, 2018
Parenting Plans: Serving Your Child’s Best Interest
Aggravation and discord often result when two parents who are no longer in a relationship are unable to agree on a parenting time schedule for their child in common. It is a challenge for many parents to accept the reality that they may not be spending every future Thanksgiving or Christmas with their children.
In Arizona, there is a legal presumption that parents should share joint legal decision-making and equal parenting time. And although legal decision-making is vitally important, the primary focus of this article is on parenting time.
According to Arizona Revised Statute (A.R.S.) § 25-401, “parenting time” refers to “the schedule of time during which each parent has access to a child at specified times. Each parent during [his or her] scheduled parenting time is responsible for providing the child with food, clothing and shelter and may make routine decisions concerning the child’s care.”
In order for Parent A to overcome the legal presumption that Parent B should not enjoy equal parenting time with his or her child, Parent A must prove to a judge that Parent B presents some concern or threatens the child’s welfare. Under Arizona law, such concerns or threats may include a history of domestic violence, child abuse, substance abuse, serious criminal activity, or mental health issues. Evidence that the court will consider of these threats or concerns include police reports, medical reports, records of the Department of Child Safety (formerly Child Protective Services), a child’s school records, and testimony from credible witnesses.
If a parent cannot (or does not desire to) overcome the legal presumption of equal parenting time, both parents must work toward agreement on a parenting time schedule, also known as a parenting plan. A parenting plan must define the allocation of legal decision-making authority, include a parenting time schedule that includes holidays and school vacations, determine how exchanges of the child will occur, include dispute resolution procedures, include communication parameters between the parents regarding the child, and provide specific notice requirements to ensure the child’s safety. Importantly, if parents are unable to agree on specific elements, the court will decide those issues, focusing on what is “necessary to promote and protect the emotional and physical health of the child.” A.R.S. § 25-403.02.
Finally, when working through the logistics of a parenting time schedule, several well-established plans offer viable options. For example, if a child is young, it is generally encouraged that the child not spend too many consecutive days away from any one parent. Older children are developmentally better equipped to spend longer periods of time apart from any one of their parents. Informed attorneys and mediators are able to provide guidance on which options are appropriate for individual families.
Although working toward agreement on a parenting plan can be arduous, the process does not need to be impossibly difficult. Engaging a competent attorney to represent you through the process can eliminate a number of issues that could derail reaching agreement. Ultimately, even in high-conflict cases, it is possible to obtain parenting time orders that serve your child’s best interest and promote his or her health and happiness.
For more information about parenting time or parenting plans, or to schedule a consultation, contact The Huff Law Firm at (520) 241-3722.
– By Dan Huff
MARCH 28, 2018
Earlier this year I reviewed the U.S. Supreme Court’s decision in Howell v. Howell, to determine the impact on the division of military retirements in the future. Although the Court provided clarity on the issue, many questions remain as to how attorneys will best assist clients through issues involving military-retirement division in the years to come. My analysis of the case is covered more fully in the State Bar of Arizona’s Family Law News found here (starting on p. 17).
For more information about the division of pensions in divorce or legal separation, or to schedule a consultation, contact The Huff Law Firm at (520) 241-3722.
– By Dan Huff