Category Archives: Custody Terms

When you are very much in love and about to become a spouse, there may be a tricky issue to negotiate regarding a prenuptial agreement. Often defenses are raised and fear and distrust can breed. However, it can help if you remember the purpose of a prenuptial agreement.

Prenuptial Agreement Definition

Entered into before marriage a prenuptial agreement sets forth what will happen to the assets of you and your spouse should you decide to separate, divorce or should one of you pass away. It can also preserve the nature of property when a marriage is terminated. So separate property remains separate as opposed to being subjected to equitable distribution laws or being deemed community property.

Increasingly popular, prenuptial agreements help people when they have, for example, focused on their careers prior to a delayed marriage. So often, both parties have assets they want to protect before entering into a marriage contract. Prenuptial agreements are also a frequently chosen option when one partner has children from a previous marriage. This agreement makes sure the separate property of a spouse goes to their own children as they intended.

Very often the greatest area of contention in the divorce process is regarding how money and property should be divided. Prenuptial agreements are popular with couples who do not want a court to decide on the distribution of assets should the marriage come to an end. This is a case where the forward planning of a prenuptial agreement can save a great deal of heartache further down the road. Prenuptial agreements can also help in the following ways:

• You can protect the assets you gathered before your marriage and specify what you want to do with them. For example, donate to a charity or pass them along to your children.
• Finances can be taken care of. So you can specify whose debt is whose and what will be shared and what will belong to the individual.
•  Assets and financial details can be managed by having a prenuptial agreement that states who handles those details.
• The rights of a spouse to your retirement plan can be waived by a prenuptial agreement so there can be a different beneficiary.
• When there is a large financial disparity in a relationship, a prenuptial agreement can work as a safeguard by controlling asset distribution brought into the relationship.

What is the Purpose of a Prenup?

Ultimately a prenup gives the right for individuals to decide how to manage their assets before marriage. It is more than just a case of not trusting your partner. It is about respecting what your future spouse has and giving them the ability to decide what they want to do with their assets.

Source

“Definition of a Prenuptial Agreement.” Legalzoom.com, 20 Feb. 2015, www.legalzoom.com/knowledge/prenuptial-agreement/topic/prenuptial-definition.

In reality, marriage is more than just a romantic relationship – it is also a business relationship. This duality has led to the increase of prenuptial agreements (also known as a prenup or premarital agreement) so the financial interests of each spouse are protected.

Read on to learn more about the pros and cons you need to know regarding prenuptial agreements. Keep in mind these guidelines can change because state laws can differ.

Prenuptial Agreement Pros

• Prenuptial agreements serve the purpose of protecting children and grandchildren’s inheritance rights from a former marriage.
• A premarital agreement can protect a professional or business practice so it does not become divided and your former spouse does not have involvement or control of the business should you divorce.
• A premarital agreement can protect a spouse who is debt-free from assuming debt obligations the other party has.
• A premarital agreement can ensure you will be fairly compensated should you be giving up a successful and lucrative career should the marriage not survive.
• A premarital agreement can put in writing any responsibility and decision making sharing the parties agree too, prior to marriage as well as addressing financial aspects of the marriage.
• The amount of spousal support one spouse will have to pay the other if the divorce can be decided in a premarital agreement.
• The finances of older persons or persons of substantial wealth entering into their second or more marriage can be protected with a premarital agreement.

Prenuptial Agreement Cons

• You may have to concede your right to inheritance from the estate of your spouse when they pass away. However, the law states you are entitled to a portion of the estate if your spouse has not made a provision for such in their will.
• You may be entitled to a share of the increase in the value of a business your spouse owns if you have made a contribution such as taking care of the home or entertaining clients. However, in a premarital agreement, you may not be entitled to claim a share of that increased value. In many states, the law says the value increase is marital property considered to be divisible.
• A lack of trust may result from commencing a relationship with a contract at the outset.
• It is tough to see how issues in the future may be handled so keep in mind, seemingly simple compromises made in the romantic period before marriage may have a significant impact later on.
• A spouse who does not earn a wage or earns only a low wage may not be able to keep the lifestyle they have become used too while in a marriage if the agreement has spousal support limits the spouse has an entitlement too.
• Every relationship has its honeymoon stage where a spouse who is in love will not make wise financial decisions as they cannot see the relationship ever terminating. A prenuptial agreement helps with this.

Get Professional Legal Assistance To See If A Prenup Is Right For You

If you, or you and your future spouse are together thinking about a premarital agreement, it is vital to look at the pros and cons at the outset. The experiences of a family law attorney can be very helpful and it is paramount each partner consults a different attorney from different law firms, to make sure the rights and interests of each partner are represented.

Source:

“Pros and Cons: Prenuptial Agreements.” Findlaw, family.findlaw.com/marriage/pros-and-cons-premarital-agreements-prenuptials.html.

You may need to seek emergency child custody in Arizona (also known as legal decision making) when a situation threatens your child or children’s well-being. There are a specific set of guidelines you will need to adhere to in order to obtain emergency child custody in Arizona.

What Is an Emergency Child Custody Order?

A temporary order or emergency child custody order temporarily grants one parent or the other sole physical and legal custody for the child or children in question.

The order gives all the power to make decisions to the person or party who has the physical custody of the child or children for a limited amount of time until the court can hear the full case. Normally, the court only advances these orders into place when the child or children is facing potentially irreparable or significant harm.

Is Emergency Custody Something I Qualify For?

Emergency custody is not easy to obtain because the burden of proof must be carried by the person or party who petitioning for the temporary order.  The chances of obtaining emergency custody orders are exceptionally low, and you should expect to lose your motion.  Most judges will deny the initial ‘emergency’ motion for custody orders and instead set the matter for a normal hearing schedule where both sides can brief the issues and present live testimony at an evidentiary hearing.

Therefore, it is important the petitioner presents evidence that is substantial in order to document the situation to show it is a true emergency. This is where the services are of a family law attorney can be invaluable. Filing for temporary custody orders is not something you should take lightly. However, it is certainly a valid option if you think a child or children are at risk of imminent bodily harm or the welfare, safety, and health of a child or children is in serious jeopardy.

Another qualifying factor is you must also be concurrently filing a petition that would change the custody of the child or children. For example, a concurrent parenting time modification request, paperwork for a divorce or a change in legal decision-making responsibilities. The paperwork may already be pending, or it can be filed at the same time as your motion for temporary orders.

Penalties For False Claims

All filings to the Court are filed under penalty of perjury.  Petitions to the court are considered to be very serious by the court system. Frivolous filings will result in short-shrift from the system if there is not a genuine emergency. It is not acceptable to file a motion on the grounds that you may just be mad at the other parent. Indeed, the judge may find you in contempt of court and order you to pay the court costs as well as the costs and legal fees the other party has had accrued if the reason for the petition turns out to be false or unsubstantiated.

What Is The Length Of Emergency Child Custody In Arizona?

If your motion for temporary custody orders is granted, the order will only last until the court can schedule a more lengthy hearing that will decide custody on a more permanent solution.  While courts will usually host the next hearing within 30 days, and sometimes as quickly as 2 weeks, depending on the availability of the Court. See Title 25-404 for more details.

Guidelines For Filing For An Emergency Custody Order Of A Child Or Children In Arizona

In Arizona, there is a rule known as “Rule 48.” The rules say if two conditions are met, emergency custody of a child or children may be granted without the need to notify the other party. The two rules are:

1. The person making the emergency custody request or the child or children may be at risk of harm if notice is given to the other person.
2. There have been unsuccessful attempts at giving notice.

Temporary Filing Custody Steps

1. Filling Out The Paperwork

You can obtain the forms and instructions for filing them in Maricopa County here.

When you read the paperwork, it will clearly explain why the order is needed and to explain why there is an emergency situation. You do need to make sure this situation is truly an emergency before proceeding – you have to include as much evidence and factual detail as you possibly can. During this process of assembling facts to prove there is an emergency, the assistance of an attorney can be very important.

The form must be signed and dated in front of a notary public. You will be able to take care of this at the court.

2. Copy The Paperwork

All told you will have four copies of the paperwork. The original that you keep and three copies that you leave behind with the Clerk of Court after you file.

3. Filing The Papers At The Court

Take the four copies of your paperwork to the clerk of the court. You can use this website to find out where your paperwork must be filed or if you need to ask further questions regarding the process.

What Takes Place In A Hearing For Emergency Custody?

The court will usually schedule the initial hearing with very little delay – often without the other parent being present. You will have to present the evidence you have been able to gather and present it under penalty of perjury. Examples of this can include:

• Photos
• Sworn statements
• Testimonies from agencies such as Child Protective Services
• Medical Records

The judge will have to decide if there is sufficient evidence and if so, they will then issue an emergency order. The order will stand until a follow-up hearing where the other party is able to present evidence that defends against the allegations made against your evidence. This timeframe will differ from court to court depending on how busy the court dockets are.

Resources:

• Visit AZCourts.Gov for emergency custody forms
• Temporary Orders Without Notice
• AZLawHelp.Org – Questions about child custody In Arizona
• Arizona Rules OF Family Law Procedure

Sources:

“How Do I Get Emergency Custody In Arizona?” Arizona Legal Center, 5 Nov. 2018, arizonalegalcenter.org/emergency-custody-arizona/.