Written by Canterbury Law Group

When Is it a Bad Idea to File Bankruptcy Without an Attorney?

Almost often, hiring legal counsel to represent you in bankruptcy is a wise decision. Here are two scenarios where legal counsel is always necessary.

You’ve Got a Difficult Chapter 7 Bankruptcy

You’ll probably want a lawyer if you operate a small business, make more money than the average resident of your state, have a sizable quantity of assets, priority debts, nondischargeable debts, or creditors who can sue you for fraud. This is why.

A Chapter 7 case cannot be automatically dismissed by the filer. The bankruptcy court may reject your case or liquidate assets you believed you could keep if you make a mistake. A bankruptcy case could potentially be brought against you to decide whether or not a debt should be dismissed. If you lose, the debt will still need to be paid after filing for bankruptcy.

What Are Nondischargable Debts and Priority Debts?

A great tool for many people who are drowning in debt to get back on their feet is bankruptcy. However, it might not completely discharge your debt. In addition to being non-dischargeable, many “priority” debts also have the advantage of being paid off first if funds are available to pay creditors.

Child support, spousal support, or another domestic support duty, fines, penalties, and restitution imposed as punishment for breaking the law, some taxes, and impaired driving obligations are among the top debts you’ll still be accountable for after filing for bankruptcy.

You’ll still be liable for the following debts:

Retirement plan loans can be utilized to pay off debts that were deemed non-dischargeable in a prior bankruptcy as well as non-dischargeable tax debt (for example, if you used your credit card to pay a tax bill).
Unless you can demonstrate that completing your payments would put you in difficulty, a student loan won’t be forgiven either. The majority of people, however, fall short of the requirement. The lawsuit that is required to establish the case may also be expensive to file and defend.
Additionally, any creditor may seek the court to identify a debt that shouldn’t be dismissed in your case by filing a nondischargeability complaint.
The creditor will have to demonstrate one of several scenarios in order to prevail.
You lied about your income on a credit application or wrote a bad check, for example, to commit fraud.
Less than 90 days before you filed for bankruptcy, you charged a luxury item.
You harmed or destroyed someone else’s property on purpose.
You stole money or embezzled money.
In your bankruptcy petition, you omitted a list of all your creditors.
It’s usually not a smart idea to represent yourself if you think you might have nondischargeable debts or that a creditor would sue you.
You must submit a Chapter 13 bankruptcy petition.

Chapter 13 bankruptcy filings are preferable than Chapter 7 filings for a variety of reasons. If you want to keep your home, you might wish to apply for Chapter 13 bankruptcy to pay off mortgage arrears. Alternatively, you might choose to pay off your second mortgage, “cram down” or reduce a car loan, or repay a debt over time that won’t be discharged in bankruptcy, such back taxes or support arrears.

Even if your main reason for filing for Chapter 13 is that your income is too high to qualify under Chapter 7, most Chapter 13 cases are too complicated for an individual to file on their own.

Why Filing a Chapter 13 Case Without a Bankruptcy Attorney Is Too Difficult

You must prepare a proposed Chapter 13 repayment plan outlining how you would pay creditors over a period of three to five years in addition to filling out the bankruptcy paperwork.

Without the pricey software that most attorneys use, it is difficult to develop a plan due to the numerous bankruptcy requirements you must follow. Additionally, particular measures like paying off a car debt in full or stripping your second mortgage will necessitate submitting additional bankruptcy motions and paperwork with the court.

The vast majority of Chapter 13 cases filed without counsel are dismissed by the court due to the complexity involved. Therefore, it is a good idea to hire an experienced attorney if you intend to file a Chapter 13 bankruptcy.

Written by Canterbury Law Group

Married Debt

Whether you are liable for your spouse’s debts depends on whether you live in a community property or equitable distribution state.

Whether you and your spouse are responsible for paying each other’s debts will depend primarily on where you live. If your state follows “common law” property rules, spouses are only liable for their own debts, with a few exceptions. For instance, both spouses must pay debts for family necessities like food, shelter, or tuition for the kids, although how states treat joint and separate debts varies slightly, so you’ll want to check your state laws.

However, if you live in one of a few states with “community property” rules, both you and your spouse will owe most debts incurred by either one of you during the marriage.

Keep reading to learn more about:

  • when you owe your spouse’s debts, and
  • how community property laws will affect you and your spouse in bankruptcy.

If you plan to file for bankruptcy in California or another community property state, you’ll want to know about the “limited community property discharge” that arises when only one spouse files for bankruptcy. Although all community property will be safe from creditor collection, the nonfiling spouse’s separate property will remain at risk.

Community Property States

The states that follow community property rules are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. (In Alaska, spouses can sign an agreement making their assets community property, but few people choose to do this.)

When Are You Responsible for Your Spouse’s Debt?

In community property states, most debts incurred by either spouse during the marriage are owed by the “community” (the couple), even if only one spouse signed the paperwork for a debt. The key here is during the marriage. So if you incur a debt, such as a credit card balance, while you’re single and then get married, it won’t automatically become a joint debt. However, an exception can occur when a spouse signs on to an account as a joint account holder after getting married. Some states, like Texas, have a more nuanced way of analyzing who owes what debts by evaluating who incurred the debt, for what purpose, and when.

After a legal separation or divorce, only the spouse who incurred the debt owes it unless the debt was incurred for family necessities, to maintain jointly owned assets (for example, to fix a leaking roof), or if the spouses keep a joint account.

If you’re considering wiping out debt in bankruptcy with a debt discharge, start by learning how bankruptcy works and what to avoid before filing for bankruptcy.

How Are Income and Property Shared Between Spouses?

In community property states, couples share income, as well. All income earned by either spouse during marriage and property bought with that income is community property, owned equally by husband and wife. Gifts and inheritances received by one spouse and separate property owned before marriage that remains separate are the respective property of one spouse alone. Comingling a gift or inheritance, such as by adding it to a joint bank account, could erase the protection. All income or property acquired after a divorce or permanent separation is also separate.

What Property Can Be Taken to Pay Debts?

In a community property state, creditors of one spouse can go after the assets and income of the married couple to make good on joint debts, and remember, most debts incurred during marriage are joint debts.

You’ll find out more about when you’re responsible for your spouse’s business debt here.

Creditors can go after joint assets in a community property state no matter whose name is on the asset’s title document. For example, a business owner’s name might not be on the title to her spouse’s boat. Still, in most community property states, that won’t stop a creditor from suing in court to take the boat to pay off the business owner’s debts assuming the boat was purchased with community funds and not separate funds.

Community property collection rules also apply to a spouse’s separate debt, such as one spouse’s child support obligation from a prior relationship, or a debt in one spouse’s name only where the spouse hid the marriage. In that case, a creditor can go after only that spouse’s half of the community property to repay the debt.

Do You Owe Your Spouse’s Student Loans?

With one exception (see below), the community property rules apply to student loan debt the same way they apply to other debts acquired during the marriage. Both spouses are responsible 100% for a student loan taken out during the marriage even though only one spouse signed for it. When the parties divorce, each spouse will be awarded 50% of the debt in the property settlement.

California presents an exception to the rules applied in other community property states. According to California law, student loans aren’t community debts, and a judge doesn’t have to split this kind of debt 50/50.

Recognizing that a student loan can benefit both spouses, California takes a more equitable approach than other states. In assigning each spouse a percentage of the outstanding student loan, a judge will consider factors like:

  •  the effect of the course of study on the community
  •  whether the other spouse also went to school, and
  •  the course of study’s effect on the spouse’s ability to support the community.

How to Remove a Spouse’s Liability

Couples in community property states can sign an agreement with each other to have their debts and income treated separately. Signing a pre- or postnuptial agreement like this can make sense for a couple before one spouse goes into business. But if you’re already in business, signing an agreement now won’t protect your spouse from liability for business debts that you already owe, only from liability for future business debts.

Keep in mind that this agreement will be between you and your spouse. It likely won’t affect whether a creditor can pursue you for debt, only your ability to pursue your spouse’s personal assets for payment. Check with your family law lawyer or bankruptcy lawyer for clarification.

You can also sign an agreement with a particular store, lender, or supplier, stating that the creditor will look solely to your separate property for repayment of any debt, essentially removing your spouse’s liability for any obligation or debt from the contract—if you can get the other party to agree.

How Does Bankruptcy Work in Marriage?

If only one spouse files for Chapter 7 bankruptcy in a community property state, creditors can collect community debts against the nonfiling spouse. However, the creditor can’t forcibly take community assets to pay community debt discharged in the filing spouse’s bankruptcy. The creditor can only collect against the nonfiling spouse’s separate property.

This protection is known as a “limited community property discharge.” (11 USC § 524(a)(3).) Also, if you’re considering divorce, talk with your lawyer about the effect the divorce will have on your limited community discharge. You could likely lose its protection. Learn more about filing for bankruptcy without your spouse.

Source

https://www.nolo.com/legal-encyclopedia/debt-marriage-owe-spouse-debts-29572.html

Written by Canterbury Law Group

Common Misconceptions about Divorce in Arizona Divorce & Bankruptcy: Which Comes First?

We all have our own ideas about divorce. When it comes to the legal aspects of divorce, most people have significant misunderstandings. The legal process to divorce in Arizona is straightforward, but cases that go before a judge can become really complicated. If you are considering a divorce, it’s very important to realistically understand the legal process and consequences. Here is a list of common misconceptions about divorce most Arizonians have:

Does Filing a Court Petition Equal a Divorce?

When you file for a divorce in a court, you are required to file a petition. Some people believe this petition to be equal to a legal divorce. It is not. You are legally divorced when a judge says so and issues a ruling which recognizes the formal Date of Separation. From that day on, your civil status will be officially divorced and single, but not a day before. This date is very important because your income and property ownership (that you retain after the proceedings) only become non-marital property after this date is set by the court.

Can Child Custody be Arranged According to a Prenup?

This is an absolutely inaccurate idea. Prenups can set provisions for things like asset division in a divorce. However, child custody is solely up to a family court to decide. Child custody is largely a matter of public policy that ensures the well-being of a child. That requires judicial assessment of a child’s current living situation. Therefore, having provisions for child custody is highly improper in a prenup agreement. It could possibly render the whole agreement void. To make sure your prenup agreement has no chance of being voided by a court, consult with a divorce attorney in Scottsdale.

Can A Spouse be Ordered to Pay My Attorney’s Fees?

In Arizona, the laws allow for a divorce court to order one spouse to pay the legal fees of the other in whole or part. However, this is very much subject to a judge’s independent review. The aim of these laws is to eliminate any income disparity between the spouses from hindering access to similar legal representation (going to court on “a level playing field” so to speak). However, the judge will see how “reasonable” both parties are. In other words, your spouse will be ordered to pay your legal fees if only the request is evaluated as reasonable and that your positions are in fact reasonable as presented in court.

Is Alimony is Forever in Arizona?

Courts in Arizona typically set alimony for a specific period of time, such as until a child comes of age. The purpose of alimony is to provisionally support a spouse in need. But alimony is not financial life support. If the receiving spouse dies, remarries or cohabits with another, then alimony can be terminated.   Generally speaking, the longer the duration of the underlying marriage, the longer the potential duration of payout on spousal maintenance.

Creditors will Only Go After the Spouse for Debts He or She Agrees to Pay Off

Arizona is a “community property” state. That means that any debts incurred during a marriage become the presumptive responsibility of both spouses. The actual person who signed the loan agreement may not always matter. This status applies even after a divorce. Your spouse could agree to pay off a credit card loan or the home equity line of credit in the divorce agreement, but you won’t be completely off the hook. If the spouse fails to pay, the third party creditors could come after you. Any agreement in a divorce is between you and the spouse, not the creditor.

Filing Together: A Joint Petition

A bankruptcy case starts when an individual, a married couple, or a business files official bankruptcy paperwork to the court. A married couple filing together will submit a “joint petition” containing the financial information of both spouses in one set of documents.

Divorcing couples often file together because it can be more efficient. For example, filing a joint petition comes with the following benefits:

the bankruptcy will wipe out (discharge) the qualifying debt of both spouses, thereby reducing the issues to be decided in divorce court, and it costs less to file bankruptcy together as opposed to apart.

Married couples are not obligated to file together, however. If one spouse needs bankruptcy protection immediately, an individual filing might make sense. Or each spouse might find it easier to qualify for bankruptcy after the divorce due to a mutual drop in income. But when it’s feasible, many couples find that filing together streamlines the divorce process.

Bankruptcy and Divorce Costs

Bankruptcy filing fees are the same for joint and individual filings. So filing a joint bankruptcy with your spouse before a divorce can save you a lot of legal fees. Also, if you decide to hire a bankruptcy attorney, your attorney fees will likely be much lower for a joint bankruptcy than if each of you filed separately. However, you should let your bankruptcy attorney know about your upcoming divorce as there may be a conflict of interest for him or her to represent you both.

Filing for bankruptcy before a divorce can also simplify the issues regarding debt and property division and lower your divorce costs as a result.

Chapter 7  vs. Chapter 13 Bankruptcy

Chapter 7 bankruptcy is a liquidation bankruptcy designed to get rid of your unsecured debts such as credit card debt and medical bills. In Chapter 7 bankruptcy, you usually receive a discharge after only a few months. So it can be completed quickly before a divorce.

By contrast, a Chapter 13 bankruptcy lasts three to five years because you have to pay back some or all of your debts through a repayment plan. So if you were looking to file a Chapter 13 bankruptcy, it might be a better idea to file individually after the divorce because it takes a long time to complete.

Property Division

Wiping out your debts jointly through bankruptcy will simplify the property division process in a divorce. However, before filing a joint bankruptcy, you must make sure that your state allows you enough exemptions to protect all property you own between you and your spouse. Certain states allow you to double the exemption amounts if you file jointly. So if you own a lot of property, it may be a better idea to file a joint bankruptcy if you can double your exemptions.

If you can’t double your exemptions and you have more property than you can exempt in a joint bankruptcy, it may be more advantageous to file individually after the property has been divided in the divorce. Also, keep in mind that if you file bankruptcy during an ongoing divorce the automatic stay will put a hold on the property division process until the bankruptcy is completed.

Discharging Marital Debt

Litigating which debts should be assigned to each spouse in a divorce can be a costly and time-consuming process. Further, ordering one spouse to pay a certain debt in a divorce decree does not change the other spouse’s obligations toward that creditor.

For example, let’s say your ex-husband was ordered in the divorce to pay a joint credit card you had together. If he doesn’t pay it or files bankruptcy, then you are still on the hook for the debt, and the creditor can come after you to collect it. If you end up paying the debt, you have a right to be reimbursed by your ex-husband because he violated the divorce decree. This holds true even if he filed bankruptcy because he can discharge his obligation to pay the creditor but he cannot discharge his obligations to you under the divorce decree.

However, trying to collect from your ex will usually mean spending more money to pursue him in court. As a result, it may be in both spouses’ best interest to file bankruptcy and wipe out their combined debts before a divorce.

Income Qualification for Chapter 7 Bankruptcy

If you intend to file a Chapter 7, the decision to file before or after a divorce can come down to income if you maintain a single household. If you wish to file jointly, you must include your combined income in the bankruptcy. If your joint income is too high and you don’t pass the Chapter 7 means test, you might not be able to qualify for a Chapter 7.

This can happen even if each spouse’s income individually is low enough to qualify on his or her own. This is because Chapter 7 income limits are based on household size and the limit for a household of two is not twice that of a single person household (it’s usually only slightly higher). In that case, it may be necessary to wait until each spouse has a separate household after the divorce to file bankruptcy.

Written by Canterbury Law Group

Managing Marital Property: Do’s and Don’ts

Property division can become challenging for divorcing couples. However, this need not be a challenge.  And If you and the soon-to-be-ex cannot come to good terms on your own, a court will have to do it for you. Under Arizona’s community property law, debts and assets accumulated during a marriage belong to both parties 50/50 in the absence of a prenuptial or postnuptial agreement that says otherwise.  Arizonian family courts emphasize fairness when dividing up a property. Unlike in some states, the property may not be divided equally 50/50, but equitably in the eyes of the judge assigned to your case.  This can sometimes mean 55/45 or 60/40 or 40/60—every case is unique.

No matter what the facts, you will have to hire a talented divorce attorney in Scottsdale, Phoenix or your local area in the state. Absent years of litigation experience, you likely won’t be able to capably represent your interests in court without a deep knowledge of divorce and property laws in the state. If you are undergoing a process of dividing property in a divorce, here are some important items you should be aware of:

Determine if the Property Belongs to the Community or the Separate Category

There is a very clear distinction between community and separate property under Arizona law. Separate property is assets a spouse owned before marriage, inherited solely during the marriage, was gifted solely during the marriage, or purchased alone during the marriage with sole and separate finances. A prenuptial or postnuptial contract may also designate that certain items are to be treated as separate property.  Absent these facts, the law presumes all property and all debt, acquired or originated during the marriage, is community property.

Courts in Arizona only have jurisdiction over community property, not either spouse’s sole and separate property. Each party will have to provide evidence for separate property claims in the form of financial documents. It is possible that property that was originally separate later becomes community property during the marriage. For example, a house purchased by one spouse before marriage may become community property following the marriage if both spouses names are later placed on the recorded deed.

The reason that each is different is that the distinction between community and separate property during the marriage can be blurry. Some spouses may have unknowingly turned separate assets into community property by the “commingling” process, where two assets are combined. A bank account owned by one spouse before marriage becomes marital property if the other spouse makes deposits to it later with community income. Sometimes assets are partially community and partially separate, such as houses and retirement accounts. A business that one spouse operated but later received contributions from the other spouse after marriage can fall into this category.   A seasoned lawyer can walk you through these issues, and advance them in a court of law.

Set Values for Property

Regardless of whether community or separate property, all assets and debts must be assigned a monetary value before equitable division. The two spouses can do this themselves, or a court can do it in case the parties cannot agree on values. Typically appraisals are used to set values of real assets, like houses, antiques, or vehicles. The toughest asset to value can sometimes be retirement accounts.  You may have to hire a financial professional like an actuary to ascertain the value of a retirement account and the growth in value of such retirement assets since the original marriage date.

The Process of Dividing Property

You can see the first section above that determining whether a property is community or separate can be complicated. Ideally, both parties come to an agreement out of court. But this rarely happens when multiple assets are in question and the stakes involve hundreds of thousands of dollars or more.

Courts may divide up property in multiple ways. In the case of property that is partially separate, the court may offer a spouse the option of buying out the remaining portion from the other. In some cases, it may be recommended to mutually sell the assets and divide the proceeds. Some property, like family homes, can be co-owned even following a divorce if children are living there or visiting each year.

Arizona courts typically divide property approximately equally among the divorcing partners. There are only a handful of exceptions to the rule. For example, if one spouse is known to have squandered money through irresponsible activities like gambling or drug use, the court may rule in favor of the other. In the case of property under massive debt, the court may rule against the spouse responsible for the debt.  At the end of the day, you will need the guidance and stewardship of experienced legal counsel to navigate these issues for you.

The following information will assist you in comprehending who owns what in terms of marital property.

Common Law Property and Marital Property States

The majority of states adhere to common law property. Consequently, what does it mean to reside in a common law property state, and who owns what following a divorce? The term “common law” is simply a term used to determine marital property ownership (property acquired during marriage). Under the common law system, property acquired by one member of a married couple is solely owned by that individual.

Obviously, if the title or deed to a piece of property is placed in the names of both spouses, then the property belongs to both partners. If the names of both spouses appear on the title, each spouse owns a one-half interest.

Distribution of property upon death or divorce: When one spouse dies, their separate property is distributed according to their will or through probate (in the absence of a will). The distribution of marital property depends on how ownership is shared between the spouses. If they hold property in “joint tenancy with the right of survivorship” or “tenancy by the entirety,” the surviving spouse inherits the property. This right is independent of the provisions of the spouse’s will.

However, if the property was owned as “tenancy in common,” then the deceased spouse’s will may direct the property to someone other than the surviving spouse. Some property does not have a title or deed. In this instance, the owner is typically the person who paid for or received the property as a gift.

In the event of a divorce or legal separation, the court will decide how the couple’s property will be divided. Obviously, the couple can enter into a premarital agreement detailing the division of marital assets upon divorce.

States with Marital and Community Property

Louisiana, Arizona, California, Texas, Washington, Idaho, Nevada, New Mexico, and Wisconsin are the states with community property. In states with community property, all assets acquired during the marriage are regarded as “community property.”

In states with community property, both spouses own the marital property equally (50/50). This marital property consists of earnings, all property acquired with those earnings, and all marital debts. Community property commences at the time of marriage and terminates when a couple physically separates with the intent to no longer be married. Therefore, any earnings or debts accruing after this date will be considered separate property.

Any assets acquired prior to the marriage are regarded as separate property and belong solely to their original owner. A spouse may transfer the title of any separate property to the other spouse (gift) or to the community property (community property) (making a spouse an account holder on bank account). Couples can also commingle their separate property with their community property, for instance by adding funds from before the marriage to the funds that constitute the community property.

Spouses may not transfer, modify, or eliminate a whole piece of community property without the consent of the other spouse, but they may manage their own portion. However, the entire piece includes the interest of the other spouse. In other words, that spouse’s share of the property cannot be alienated.

Separate property consists of

  • prior to the marriage, only one spouse owned the marital home.
  • Gifts made to only one spouse prior to or during the marriage
  • inherited property by only one spouse
  • Community property consists of
  • Earnings of either spouse during the marriage
  • Items purchased with money earned by either spouse during the marriage
  • Unidentifiable separate property that has become entangled with common property.

Distribution of property upon death or divorce:

When one spouse dies, his or her half of the community property is transferred to the surviving spouse. Their separate property may be bequeathed to whomever they choose in accordance with their will or through probate in the absence of a will. Numerous states with community property provide an interest known as “community property with the right of survivorship.”

Under this doctrine, if a couple holds title or deed to a piece of property, typically a home, then upon the death of one spouse, the title automatically transfers to the surviving spouse without the need for court proceedings.

In the event of a divorce or legal separation, all community property is divided equally (50/50). The separate property of each spouse is distributed to the spouse who owns it, rather than being divided equally.

Sometimes, economic circumstances necessitate awarding certain assets entirely to one spouse, but each spouse still receives 50 percent of the total economic value of all community property. This is most prevalent in married households. Due to the impracticality of dividing a home in half, courts frequently award one spouse the home and the other spouse other assets with a value equal to half the value of the home.

Before the marriage, the couple may enter into an agreement outlining the division of marital property upon divorce.

Exceptions to the rule of equal division:

  • Prior to or during a pending divorce, one spouse misappropriates the community property.
  • One partner carries educational debts. This is the same as debt incurred separately. The spouse retains their GSL loans upon divorce.
  • One spouse incurred tort liability NOT as a result of activity performed for the benefit of the community of marriage.
  • Personal injury awards are considered community property during the marriage, but are awarded to the injured spouse upon divorce.
  • “Negative community” refers to a situation in which the community’s liabilities and debts exceed the assets available to cover them. Here, the relative ability of the spouses to pay the debt is taken into account. The objective here is to safeguard creditors.

Managing Marital Property: What You Should Do

Do consider entering into a prenuptial or premarital agreement prior to marriage. Such agreements make clear what will happen to your property upon your death or divorce. With one, you can prevent undesirable arrangements in how your property is divided in a divorce.

Do maintain accurate and complete books and records to establish the separate nature of property you wish to keep independent from the marital estate. Property you may want to keep separate can include things you had before marriage. It can also include gifts or inheritance you receive during the marriage.

Do continue to keep all separate property separate throughout the marriage, if you’re concerned about keeping it in your family upon your death or divorce. You should also do this with other things that you would also like to keep as a personal asset. Generally, this means you shouldn’t “commingle” property you owned prior to marriage with property you and your spouse acquired during the marriage. In cases of “commingling,” it may become difficult or even impossible to legally determine if it’s separate or marital property.

Do be aware that the increase in value of nonmarital property may be considered marital, so that each spouse is entitled to a share of the increased value of a possession upon divorce or the owner’s death. This is especially true if the increase in value is considered “active” rather than “passive.” (Such increases in value are officially referred to as “appreciation.”) Passive appreciation is, for example, the increase in value of a bank account as a result of interest earned. Passive appreciation also occurs with an increase in property value that results from standard inflation. Active appreciation, on the other hand, occurs as a result of some form of effort, such as repainting rental property, home improvement projects, or actively managing a stock portfolio.

Do use only your non-marital property to purchase other property that you want to be considered separate property. In other words, a boat that you pay for with money you had before marriage and kept in a separate account during marriage may be considered separate or non-marital property. But if your spouse pays for part of it, or even helps maintain it, the boat could lose the status of non-marital property.

Do keep proceeds acquired from any personal injury case during marriage separate, if you want to prevent them from becoming you and your spouse’s marital property. The money you get from a personal injury lawsuit is yours alone, except for any portion that reimburses you for your lost income or compensates your spouse for the loss of your services or companionship.

Managing Marital Property: What You Should Not Do

Don’t use separate funds to pay off a marital debt, or those funds could lose their non-marital character.

Don’t make deposits of income earned during the marriage into non-marital accounts. Income earned during marriage is usually considered marital property. Depositing that income into non-marital accounts can result in “commingling.” When that happens, the non-marital account is no longer considered separate property.

Don’t open a joint bank account with non-marital funds, even if you intend to keep track of which portion is separate. It’s much more prudent to maintain separate accounts if you wish to keep non-marital assets separate.

Don’t assume that just because you owned property prior to marriage, no portion of it will be deemed marital property. For example, if the home you owned before marriage increases in value during the marriage because of you and your spouse’s efforts to maintain and improve it, your spouse may be entitled to a portion of that increase in value.

Don’t assume that a business you owned prior to marriage remains entirely a non-marital asset after marriage. If your business or professional practice increases in value throughout the marriage due in part to your spouse’s contributions, your spouse may be entitled to a share of the increase in value upon divorce or your death. Such contributions can be obvious, such as in bookkeeping or entertaining clients. But they can also be more subtle, such as in taking care of the home and children so that you can focus on running the business.

What is Whose? Obtain Assistance with Your Marital Property Issues

Dividing marital property upon divorce or the demise of a spouse is never an easy subject to broach. Despite the fact that the specifics of property division depend on the state in which you reside, it can be quite confusing. However, you are not required to figure out the law on your own. Consider contacting an experienced divorce attorney in your area to discuss your options.

Written by Canterbury Law Group

What Is Divorce Good For

Most people who are thinking about getting a divorce are aware of what to expect. They have seen divorces in the movies and frequently have at least a few personal acquaintances who have gone through divorce. Even with this “second-hand” knowledge, going through your own divorce is one of the scariest things you can do in life.

You may be facing the end of one of your most important relationships ever, and on top of that, you have to start planning for unpleasant things like the division of assets and finding new housing. In many situations, there is also the sad possibility of losing daily contact with your children.

Divorce and predictability don’t mix. But if you go into your divorce with reasonable expectations, you’ll have the best chance of being happy with the outcome. As a result, it’s a good idea to be aware of what a divorce can and cannot achieve for you. What therefore is there to gain from divorce?

Real Estate Division

The marital property will be divided by the divorce court in the most reasonable manner. Most states will not include any property acquired before the marriage, by gift, or through inheritance in this divide.

This entails a 50/50 split of the property obtained by the partners during the marriage in some states (community property states). Other states (those without a community property system) will try to divide the property fairly by looking into the couple’s individual financial situations, the length of the marriage, the standard of living during that time, and other pertinent factors.

It is advisable to discuss the split of property with your soon-to-be ex-spouse because it is never predictable. Having legal representation will aid in the negotiation and settlement processes as well. For instance, you might decide that, while genuinely wanting to stay in the family home, you must continue running your business. As a result, you might decide to prioritize the business over the home. You can try to reach a mutually agreeable property division arrangement with your spouse in this way.

Assistance Obligations

The outcome of a divorce case can influence a couple’s support obligations. This may take the shape of spousal support and child support (also called “alimony”).

Although there may be some case-by-case variations, state law currently mainly determines how much child support must be paid. Slowly but surely, several states are working to enact laws that restrict deviance from the norm. Ordered custody arrangements may affect child support orders. In general, spousal support is heavily influenced by the specifics of each divorce and the financial situation of the separating couple. Therefore, it is once again challenging to anticipate a court’s final support decision.

Visitation and Custody of Children

When there are children between the parties, divorce can also help determine child custody, timesharing arrangements, and parenting schedules in addition to the division of assets. This is also everything but expected. The “best interests” of the child are supposedly promoted by a collection of considerations that courts frequently attempt to consider when making decisions, however these factors might differ from case to case and court to court.

Furthermore, during tense custody disputes, courts typically hear and see only the worst in people. In light of their constrained “view” of the parents’ lives, a divorce court might not necessarily decide on custody in the “optimal” way. Again, in this situation, bargaining and settlement are key choices to consider. A cooperative child custody arrangement will be advantageous to all parties engaged in the divorce, especially the kids.

Ensure Accurate and Equal Division

An exact or mathematically equal distribution of property and parenting time cannot be achieved through divorce. Since no two individuals, marriages, or divorces are alike. The judge who issues a divorce decree must choose wisely given the time and information at hand. You may need to make some concessions on some of your desires, and the choice may not always be the most just one that could have been made.

Divorce courts frequently need to make the most of bad situations. For instance, when one parent resides in Cheyenne, Wyoming, and the other in Kalamazoo, Michigan, a satisfactory custody agreement is impossible.

Maintain Good Relations

Even while a court can determine the terms of child custody and visitation, the judge will not always be present when it is time for one parent to pick up the children or send them to spend the weekend with the other parent. The court will not be present to watch that they don’t insult the other parent in front of the kids. A court order is ultimately simply a piece of paper. To carry out the provisions of the custody and visitation order, the parents must continue communicate with each other civilly.

Your obligation to your children does not end with your divorce. In the best interests of the kids, this duty also entails courteous communication with the other parent. When there is significant conflict between the parents, most courts will take whatever action they can, such as limiting in-person interactions wherever possible. Examples of this include arranging for parents to pick up or drop off children at school or church so that they won’t have to interact with one another, or if a facility is available to handle exchanges when domestic violence is present.

Keep Your Current Standard of Living

You should also be aware that a divorce court cannot raise your pay in order to stop a decline in your standard of living after a divorce. Unfortunately, maintaining two separate residences is simply more expensive than living together and splitting costs with another person. Your level of life will alter after a divorce, and the court can do very little, if anything, to prevent this.

Fix Emotional Problems

Finally, a court will not be able to hold your ex-spouse accountable or ethically defend you for all the wrongdoings that took place during your marriage. Additionally, the divorce procedure won’t make your emotional wounds better or even eliminate the need for you to grieve the broken relationship. Although you can get help from therapists and support groups, that is your responsibility.

Written by Canterbury Law Group

What Is Equitable Distribution And Separate Property In Divorce

Family courts divide property in one of two ways: equitable distribution or community property. Most states divide marital property according to what’s fair, or equitable, for both parties during a divorce. This isn’t the same as equal distribution, however, as the goal of equitable distribution is to consider the needs of each party and the facts of the case.

The equitable distribution of marital assets is determined on a case-by-case basis. It is subject to negotiation between the two parties and the discretion of the judge. If you’re getting divorced in a common law property state (where equitable distribution is recognized), you’ll want to understand how property division will be determined.

This article addresses the two ways in which assets are divided between a couple during their divorce.

Community Property vs. Equitable Distribution: The Basics

In the nine community property states, which include California and Texas, marital property (generally, all property acquired between the date of the marriage and the date of separation) is generally divided fairly equally. This is done regardless of who contributed more to the marriage (whether in regard to money, housekeeping, etc.), who has more separate property, or whether one of the spouses is largely to blame for the divorce.

 

Generally, anything purchased with money earned by either spouse during the marriage is considered community property. Community property is subject to a roughly 50/50 split in a divorce. However, separate property may be established through a written contract. Examples of such contracts are prenuptial agreements or postnuptial agreements, sometimes called antenuptial agreements.

In equitable division property states, courts take a much more delicate approach to property division. Instead of automatically dividing marital property down the middle, these states take a step back and consider what would be the fairest to both parties. This includes consideration of separate property as well as marital property, and the needs and means of each spouse.

For example, consider if one spouse gave up their career in order to stay home and raise children. They now have a difficult time earning a living after the divorce. In this instance, the court may award that party a larger cut of the marital property. Conversely, if one spouse was abusive or otherwise at fault for the failure of the marriage (even in a “no-fault” divorce), the court may award them a smaller percentage of the marital property.

Determining What’s Equitable: Factors Considered

Like community property states, in equitable distribution states, the divorcing couple has an opportunity to reach an agreement on their own (subject to court approval) before the courts intervene. This may take place in a collaborative environment or through the parties’ attorneys. If the parties are unable to reach an agreement about the division of marital property, the courts will use their discretion (within the parameters of state marital property law) in order to reach a resolution.

When courts are tasked with determining the division of assets, they’ll generally consider the following factors under equitable distribution laws:

  • Duration of the marriage;
  • Which spouse has primary custody of minor children;
  • The financial needs and liabilities of each spouse, present and future (for instance, one party may need to invest in a college degree in order to earn a decent wage);
  • The financial well-being and earning power of each spouse, present and future;
  • Amount contributed by each spouse to the combined marital property;
  • Pensions earned by either spouse;
  • Non-monetary contributions to the family (such as child-rearing, unpaid work on the home, etc.);
  • Marital debt accumulated during the duration of the marriage (such as credit card debt);
  • Age, health, and special needs of each spouse;
  • Child support (and/or spousal support) obligations of either spouse for previous relationships;
  • Total fair market value of separate property (again, this isn’t subject to division, but does factor into the overall determination); and
  • Marital misconduct by each spouse (such as gambling debts, extramarital affairs, or instances of domestic violence).

Note that premarital property is not included in equitable distribution. This is because personal property acquired before the marriage is not considered part of the marital estate. Only assets acquired during the marriage are considered part of the marital estate and are subject to equitable distribution.

Individuals often decide to get married after falling in love and realizing they have similar values and life goals. But, romantic ideals aside, marriage is at its core a merger of two entities into a single unit, with shared assets and liabilities. And just as a business merger results in the commingling of assets, so too does marriage (to a degree).

But the question of who owns what typically is addressed only when a married couple decides to call it quits and go their separate ways. Marital property is that which is subject to division upon divorce, but what is separate property in a divorce?

Marital Property vs. Separate Property: The Basics

In order to define separate property in the context of a marriage, we also need to cover the meaning of marital property. Most assets (and debts) acquired during the marriage are considered marital property and thus subject to division in divorce. The way in which marital property is divided depends upon the laws of your state, with a handful of states using the “community property” approach (generally, a 50/50 split).

 

All other property is considered separate property, which means it belongs to just one of the parties in a marriage. When a couple gets divorced, separate property is not subject to division.

 

Assets Considered Separate Property

Unlike marital property, separate property (sometimes called “individual property”) belongs to just one individual before, during, and after the marriage. This mainly consists of that which was acquired before the couple gets married, with a few notable exceptions. Debt also follows these rules; someone who enters a marriage with a heavy debt load typically will be responsible for that debt after the marriage ends.

State laws determine what’s considered separate property, but they’re fairly consistent with one another. Generally, the following is considered separate property:

  • Property owned by one spouse prior to the marriage;
  • Gifts or inheritances received by one spouse prior to or during the marriage;
  • Property acquired by one spouse (in that individual’s name only) during the marriage and not used by the other spouse or for the benefit of the marriage (unless it’s a community property state);
  • Property/debts designated as separate in a legally enforceable contract, such as a prenuptial agreement;
  • Personal injury awards, minus any compensation for lost wages (unless it’s a community property state); and
  • Any property obtained by one party using their separate property assets (such as inheritance funds) with the clear intention of maintaining the acquired property as separate.

Separate property that’s been so commingled with marital property that it’s virtually impossible to identify will be considered marital property (and subject to division) in a divorce. For instance, if marital property (shared income) is used to pay off a car originally purchased by one spouse before the marriage, the car (or a portion of its value) will be considered marital property.

Separate Property: Community Property vs. Common Law States

It’s important to understand how community property states and common law property states differ in how separate property is distinguished. Common law property states, for the most part, automatically define that which is registered in one spouse’s name only as separate property. This isn’t the case in community property states (such as California), where an express, written agreement is required for such a determination.

Additionally, common law property states will take into consideration each spouse’s separate property when determining how to equitably distribute marital property during a divorce. Since community property states split marital property in half, they don’t consider each party’s separate property.

Written by Canterbury Law Group

What Is Equitable Distribution?

Family courts divide property in one of two ways: equitable distribution or community property. Most states divide marital property according to what’s fair, or equitable, for both parties during a divorce. This isn’t the same as equal distribution, however, as the goal of equitable distribution is to consider the needs of each party and the facts of the case.

 

The equitable distribution of marital assets is determined on a case-by-case basis. It is subject to negotiation between the two parties and the discretion of the judge. If you’re getting divorced in a common law property state (where equitable distribution is recognized), you’ll want to understand how property division will be determined.

 

This article addresses the two ways in which assets are divided between a couple during their divorce.

 

Community Property vs. Equitable Distribution: The Basics

In the nine community property states, which include California and Texas, marital property (generally, all property acquired between the date of the marriage and the date of separation) is generally divided fairly equally. This is done regardless of who contributed more to the marriage (whether in regard to money, housekeeping, etc.), who has more separate property, or whether one of the spouses is largely to blame for the divorce.

 

Generally, anything purchased with money earned by either spouse during the marriage is considered community property. Community property is subject to a roughly 50/50 split in a divorce. However, separate property may be established through a written contract. Examples of such contracts are prenuptial agreements or postnuptial agreements, sometimes called antenuptial agreements.

 

In equitable division property states, courts take a much more delicate approach to property division. Instead of automatically dividing marital property down the middle, these states take a step back and consider what would be the fairest to both parties. This includes consideration of separate property as well as marital property, and the needs and means of each spouse.

 

For example, consider if one spouse gave up their career in order to stay home and raise children. They now have a difficult time earning a living after the divorce. In this instance, the court may award that party a larger cut of the marital property. Conversely, if one spouse was abusive or otherwise at fault for the failure of the marriage (even in a “no-fault” divorce), the court may award them a smaller percentage of the marital property.

 

Determining What’s Equitable: Factors Considered

Like community property states, in equitable distribution states, the divorcing couple has an opportunity to reach an agreement on their own (subject to court approval) before the courts intervene. This may take place in a collaborative environment or through the parties’ attorneys. If the parties are unable to reach an agreement about the division of marital property, the courts will use their discretion (within the parameters of state marital property law) in order to reach a resolution.

When courts are tasked with determining the division of assets, they’ll generally consider the following factors under equitable distribution laws:

 

  • Duration of the marriage;
  • Which spouse has primary custody of minor children;
  • The financial needs and liabilities of each spouse, present and future (for instance, one party may need to invest in a college degree in order to earn a decent wage);
  • The financial well-being and earning power of each spouse, present and future;
  • Amount contributed by each spouse to the combined marital property;
  • Pensions earned by either spouse;
  • Non-monetary contributions to the family (such as child-rearing, unpaid work on the home, etc.);
  • Marital debt accumulated during the duration of the marriage (such as credit card debt);
  • Age, health, and special needs of each spouse;
  • Child support (and/or spousal support) obligations of either spouse for previous relationships;
  • Total fair market value of separate property (again, this isn’t subject to division, but does factor into the overall determination); and
  • Marital misconduct by each spouse (such as gambling debts, extramarital affairs, or instances of domestic violence).

Note that premarital property is not included in equitable distribution. This is because personal property acquired before the marriage is not considered part of the marital estate. Only assets acquired during the marriage are considered part of the marital estate and are subject to equitable distribution.

Written by Canterbury Law Group

Divorces and Business Ownership

Eric and Ariel made the sad decision to file for divorce after 19 years of marriage. Since before the two were married, Ariel has had a business collecting and selling different collectibles. However, she is concerned about what will happen to her business now that she is getting a divorce. Since she had it prior to being married, will it be split between her and Eric, or does it only belong to her? It depends, really.

A business will be considered an asset in the case of a divorce. However, how it will be divided will depend on a number of issues, including state legislation, whether the firm is considered to be marital property, and the presence of a prenuptial agreement. To understand more about divorce and business ownership, continue reading.

Determining Marital Assets

The designation of a business as separate or marital property is the main determinant in deciding whether it is subject to property division. Marital property, which is more intricate than it looks, is the collective possessions of a married couple.

The first factor is state law, which typically defines marital property as either community property or property subject to equitable division. Second, how the property is finally classified can vary depending on how it is handled and even what happens to it during the course of a marriage.

Prior to filing for divorce, it’s crucial to ascertain whether the couple resides in a state that follows the equitable distribution or community property model. Property that each spouse owned before the marriage is distinct property in states where community property is the law. Almost all property acquired during a marriage is joint property of the spouses. Of course, there are exceptions since the law is never straightforward. Any gifts or inheritances granted to one spouse during a marriage are regarded as separate property, though their classification may change if they are combined with common assets.

Property partition is more complicated in jurisdictions with equitable distribution since a court determines how it will be done. Naturally, there are rules established by state law on how the property should be distributed. Furthermore, the concept of equitable distribution holds that property should be distributed “fairly,” though not necessarily equally.

When Is a Business Marital Property in the Case of Divorce?

If the spouses jointly own the company, it will be regarded as marital property. But it is not the only circumstance in which a corporation will be deemed to be marital property. It is possible that a firm that was founded after the couple’s marriage will be regarded as marital property.

Businesses created by one spouse before to marriage may not necessarily be regarded as marital property. For instance, if the non-owner spouse made contributions to the firm throughout the marriage, it may still be considered marital property. It’s vital to keep in mind that “contributed” might refer to both direct labor contributions to the business and caregiving while the owner operated the enterprise.

Prenuptial Agreements and Business Ownership Protection

A prenuptial agreement is the greatest approach to guarantee that a business is not included in the split of assets after a divorce. Of course, it’s possible for a spouse to start a business after they get married, in which case a prenuptial agreement couldn’t include it. To explicitly identify business ownership, it might be conceivable to enter into a postnuptial agreement, which is similar to a prenuptial agreement but takes place after the couple has already been married.

Speak With One Of Our Divorce Attorneys In Scottsdale

Canterbury Law Group’s divorce attorneys in Phoenix and Scottsdale will handle your case with personal attention and always have you and your children’s best interest in mind when offering legal solutions. Our family lawyers can also help with divorce litigation, child custodylegal guardianshippaternityprenuptial agreements, divorce mediationcollaborative divorce, and more.

We are experienced divorce attorneys and will fight for you to get you the best possible outcome. Our law firm will represent you fully in court, so you can get on with your life. Call us today for an initial consultation. 480-744-7711 or [email protected]

*This information is not intended to be legal advice. Please contact Canterbury Law Group today to learn more about your personal legal needs.

Written by Canterbury Law Group

Family Court Decisions: Temporary Orders

Family Court Decisions: Temporary Orders

There are challenges that a couple must deal with when they decide to divorce. Finalizing formal family court rulings might take months or even years. Numerous problems cannot wait that long. For instance, parties should rapidly resolve matters such as child custody, child and spousal support, ownership of the family automobile, and ownership of the marital house before the formal divorce or legal separation hearings.

These pressing problems are quickly resolved thanks to the family courts’ temporary orders, which are discussed in more detail below.

When a couple separates, family courts hold a hearing and issue temporary orders. Even before filing separation papers, a party may in several jurisdictions ask the family court for an interim order. The hearing can then take place in a few days or weeks.

Plans are made for the urgent family law issues following the hearing. Until the parties go through the formal divorce process or engage in another type of legal settlement, such mediation, the arrangement is temporary and remains in force. Despite having just a short-term legal effect, formal family court judgements frequently take temporary orders into account.

Hearings for temporary orders are generally less formal and shorter than full hearings in family court. Before the hearing, a couple or/and each party should be certain they are clear about their goals. The hearing will move swiftly, leaving little time for participants to dilly-dally in expressing what they think is best.

Temporary Orders Address What?

There isn’t a specific list of topics that all interim orders cover because every circumstance is different. The orders do, however, typically specify the temporary configuration for the following categories of family court cases:

  • Sale or ownership of the marital residence
    having access to the family car
    Child support is often calculated using the child support standards.
    spousal assistance
    Schedule for child custody and visits
    health protection
    Uncovered medical costs
    preventing one spouse from speaking with or approaching the other spouse. (This can have the result of ejecting the partner from the marital residence.)
    order prohibiting the sale of any important assets or household belongings by either spouse
    Keep in mind that not all decisions made through interim orders are final. They are meant to preserve the family’s stability and circumstances until more formal and binding judgments about the family’s future can be made by the family court.

The significance of temporary custody orders for children

Some couples can come to decisions by themselves. It will probably save you some hassle if you ever find yourself in that circumstance. To avoid any future ambiguity, make sure you and your husband jointly draft and sign the child custody and visitation agreement.

If, like many couples going through a divorce, you and your spouse are unable to come to terms with these matters, you should seek a provisional injunction right once. This is crucial when discussing custody of children.

It’s crucial to at least apply for custody as soon as possible if you’ll be keeping custody of the child(ren), especially if you take them away from the house. To best defend your rights and future in family court, you want the legal request on file.

As quickly as feasible, an enforceable order directing the child custody arrangement, including periods for visitation/parent time, needs to be entered into the court’s records. Law enforcement may be reluctant to intervene with one parent against the other in the absence of a court order awarding one parent custody.

The Hearing for a Temporary Order

The judge can do the following during the hearing:

  • Review your request’s specifics.
    Think about the underlying details
    Ask the parties any questions you have.
    Find out your spouse’s perspective.
    To determine your proposal for child support, take into account both your financial situation and the state laws.
    Sometimes the hearing for your temporary order provides an opportunity for the various parties to reach a compromise before appearing before the court. This gives the judge and the court much-needed time to concentrate on the actual difficulties at hand.

Requests for Temporary Orders: The Decision-Making Process

Unless the matter is really time-sensitive, it’s uncommon for the judge to make a judgement right away from the bench (in which case the specific issue will be decided). Within a week of the first hearing, the whole temporary order is typically issued. The court will decide whether to approve the order in its entirety or to make any necessary modifications.

Note: You could be needed to provide proof of your income and a breakdown of your spending if you’re asking for interim child support. Before or when you file your request, some courts may ask you to complete pre-made forms. It may be wise to create these documents even if your state does not have any such obligations in order to bolster your requests for financial assistance.

Sometimes the court finds that more information is required in order to reach a just conclusion or that your spouse was not properly informed prior to the hearing. In these situations, the judge may issue a ruling that is only valid up until a further temporary order hearing can be scheduled.

Any agreements the parties were able to reach prior to the hearing are included in the temporary order. The judge will assess the parties’ agreement if they manage to reach a comprehensive one. Most of the time, the judge deems these agreements to be acceptable and may rule that they act as the temporary order.

Temporary orders only last as long as your divorce is finalized or as long as you and your spouse can agree on a divorce settlement. However, decisions taken at hearings for interim orders may have an impact on divorce procedures.

How to Make a Temporary Order Request

It requires submitting certain documentation to the family court in order to request a temporary order. These forms are offered online on the websites of many courts. Find out whether there is a self-help legal center at your court where these forms could be obtained. Even the courts occasionally employ individuals to assist you with paperwork organization. States have different deadlines for submitting requests for interim orders. While other jurisdictions permit filing immediately after separation, some states mandate that you wait until divorce papers have been filed.

Need a Legal Separation Lawyer in Scottsdale or Phoenix?

As family court lawyers, we have built a network of Arizona mediators, attorneys, tax specialists, estate planners, financial planners, child specialists, real property appraisers, adult and child therapists and parenting coordinators who are here for you if you ever need them. Our lawyersdivorce mediators and collaborative divorce attorneys in Scottsdale are here to make your divorce less stressful and keep you in control and the costs contained. Call today for an initial consultation at 480-744-7711 or [email protected]. Our family lawyers can also help with divorce litigation, child custodylegal guardianshippaternityprenuptial agreements, and more.

*This information is not intended to be legal advice. Please contact Canterbury Law Group today to learn more about your personal legal needs.

Written by Canterbury Law Group

Appeals and Motions to Modify the Divorce Decree

After a divorce is finalized, either spouse may have grounds to appeal certain court rulings. Either a divorce decree modification request or a court judgment appeal may be made in order to accomplish this.

An overview of the procedure to challenge a court order pertaining to a divorce proceeding is provided below.

Having Your Divorce Judgment Reviewed

A state court of appeals can hear an appeal of a divorce court judge’s ruling. While the initial judge’s ruling in a divorce case is respected, it is uncommon, though not unheard of, for an appeals court to reject the lower court judge’s judgment.

An appeal can only address material mistakes that were made during the trial. This could be a case of factual, legal, or judicial misconduct.

Due to the fact that both parties to the divorce agreed to the terms of the settlement, divorce settlement agreements are typically unaffected by an appeal. A spouse can attempt to claim that there were issues with the way the agreement was created, which could create a problem with its enforcement.

Divorce Appeal Notice

A notice of appeal is given to the opposing party to start the appellate procedure. For filing and serving notice, there are detailed guidelines and timeframes. Your right to appeal could be lost if you don’t adhere to your county’s and state’s filing requirements.

The Appeal’s File

The Record on Appeal must be prepared once the notice of appeal has been submitted to the court and served on each party. The processes used by the states to record court transcripts differ. Ask the court clerk what documents are maintained there and how to get them for your appeal.

The clerk’s record consists of all the written materials—documents, papers, pleadings, etc.—that were submitted to the court. It contains every piece of evidence and document presented during the trial. Other court documents (like motions) that were not initially introduced at trial may be found in the Record on Appeal.

Every word spoken in court while a court reporter was present is recorded in the court reporter’s transcript, a typewritten booklet. It often includes all of the witness testimony, the arguments made by the attorneys, and any remarks made by the judge or the parties.

The appeals document

The written appellate briefs submitted by the attorneys for each party serve as the primary vehicle for argument on appeal. A brief is a piece of writing that presents the case’s legal arguments and supports them with citations to relevant statutes, case law, the reporter’s transcript, and records kept by the clerk.

After being hired, the parties’ divorce lawyers file their pleadings to the appeals court. Regardless of whether they first represented you, a lawyer must be retained in order to represent you in the appeal court. You will need to consult with your lawyer or get new counsel for your case.

When submitting a brief, the lawyer may be asked to specify whether or not oral arguments are necessary.

Oral Debate

If a request for an oral argument is made, the time allotted for each party to deliver its case will normally not exceed 15 or 30 minutes. There will be no witness summons and no consideration of fresh evidence.

You might retain the same trial court attorney to defend you on appeal, or you could get new counsel. The lawyer will go over the mistakes that were made in the trial court and how they contributed to the outcome of the initial divorce case.

Appellate Court’s Decision

The appellate court will issue its decision after receiving the Record on Appeal, the appellate brief, and any oral arguments. State-to-state variations in time exist. Typically, an appellate court can take as little as a month or as long as a year or more to rule on an appeal.

The appeal court has the option of upholding the trial court’s judgment or remanding the case back to the trial court for judgment revision or a fresh trial. In rare cases, the court may simply vacate (overturn) the judgment.

Divorce modification requests

The appeals process is costly and might not yield the outcomes an ex-spouse is hoping for.

The easiest way to get the divorce decree modified is to just ask for it, which is much less expensive and usually more effective. It is possible to change some aspects of the divorce, including spousal support, child support, child custody, and visitation, however some changes are simpler to make than others.

A “move to modify” must be submitted in order to request a change to a property settlement, child custody arrangement, or alimony payment. The same court where the divorce judgment was rendered is where this motion was filed.

The majority of states offer specific paperwork to fill out. To see if they are open, inquire with the state and county courts in your area.

When writing a motion to modify, you must provide evidence of new circumstances that call for a revision. For instance, the termination of employment may be cause for alimony or child support modification.

Each state has its own laws governing the modification procedure and the evidence required for the modification to be approved.

Although it is challenging, child custody arrangements can be changed. Following the approval of the custody agreement, courts generally reluctant to modify custody arrangements. However, if it is in the child’s best interest and a change is required due to external factors, they will.

The completed petition for modification must be submitted to the court and served on the ex-spouse. The court will set a date for a hearing where the arguments will be made.

You should provide a copy of your agreement with your petition if you and your spouse concur that a revision is required. The adjustment may be made by the court without a court presence being required.

Speak With One Of Our Divorce Attorneys In Scottsdale

Canterbury Law Group’s divorce attorneys in Phoenix and Scottsdale will handle your case with personal attention and always have you and your children’s best interest in mind when offering legal solutions. Our family lawyers can also help with divorce litigation, child custodylegal guardianshippaternityprenuptial agreements, divorce mediationcollaborative divorce, and more.

We are experienced divorce attorneys and will fight for you to get you the best possible outcome. Our law firm will represent you fully in court, so you can get on with your life. Call us today for an initial consultation. 480-744-7711 or [email protected]

*This information is not intended to be legal advice. Please contact Canterbury Law Group today to learn more about your personal legal needs.

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