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Written by Canterbury Law Group

10 Things To Do Before You File For Divorce and Realities of the Divorce Process

10 Things To Do Before You File For Divorce and Realities of the Divorce Process

Here are ten actions to take if you believe that your marriage is beyond repair and that divorce is inevitable.

Speak with a lawyer.

Find out what your legal obligations and rights are. Consider the scenario where you decide to relocate to your parents’ home with the kids while you wait for the divorce to be finalized. Moving in with your parents, even for a short time, could be a grave legal error.

Copies of documents.

Make copies of everything you can find by going through household files, including tax returns, bank statements, check registers, investment statements, retirement account statements, employee benefits manuals, life insurance policies, mortgage papers, financial statements, credit card statements, wills, Social Security statements, car titles, etc. It’s crucial to learn as much as you can about the company’s finances if your spouse runs a self-employed business. If you have financial information on your home computer, make copies of it.

List the belongings in the home and in the family.

The major possessions should be listed, including furniture, jewelry, art, appliances, and cars. Don’t forget to search your home’s storage spaces and your safe deposit box for valuables.

(Knowing all of the marital assets is crucial when it comes to dividing the property.)

Understand the household budget and costs.

Write down each monthly expense for utilities, a mortgage, and other living expenses as you go through your check register for the previous year, if you can. Keep track of the money you spend every day so you can figure out your monthly cash outlays as well.

Choose a family debt management strategy.

Determine the family debt, if any, and think about settling it before filing for divorce. One of the most challenging issues to settle during a divorce is how to divide the marital debt. When assessing debt, consider whether any of it was racked up by one spouse or the other before the wedding. The spouse who incurred it would be responsible for paying off this “non-marital debt,” which belongs to them.

Find out the exact salary of your spouse.

If your spouse receives a regular paycheck, it is simple to check a pay stub; however, if your spouse is self-employed, owns a business, or receives any portion of income in cash, you should try to keep track of the money coming in over the course of several months.

Analyze your earning potential in a realistic manner.

Perhaps you have been focusing solely on raising children while you have been out of the workforce for a while. Analyze your current employability and whether pursuing more education before getting divorced would be advantageous for you in the long run.

Look at your credit report.

If you don’t already have credit cards in your name, apply for them right away, use them, and build your credit. If you have a bad credit history, try to pay your creditors now so that you can raise your credit score before the divorce.

Make your own “nest egg” by yourself.

You ought to have access to your own money at all times. You will be responsible for paying bills if your spouse leaves and stops doing so until temporary support orders can be put in place. You will require funds for a retainer if you plan to initiate the divorce. Start putting money aside now, and when you have a sizeable nest egg of your own, consider starting divorce proceedings.

Prioritize spending time with your children.

Keep your kids’ schedules as regular as you can throughout the divorce process. If you and your partner can’t be with the kids together without fighting, schedule separate times for you both to be with them. Participate in your children’s school, sports, and extracurricular activities. Don’t speak poorly of your spouse in front of your kids. Put your kids first in everything you do.

The Scottsdale divorce attorneys at Canterbury Law Group handle complex divorce cases throughout Arizona, California, Nevada and New York. Their skilled litigation team provides no-nonsense legal counsel for family law cases at the highest level possible.

The law team at Canterbury thoroughly prepares clients while understanding that all cases have unique circumstances and laws vary by state and local jurisdiction. The Scottsdale divorce attorneys also prepare clients for the constant surprises that inevitably arise during the divorce process:

Length of divorce – Depending on your unique situation, divorce can take few months to well over a year, leaving issues that still need to be settled. The vast majority of matters resolve within one calendar year. More complex dissolutions with large asset bases and children, can take up to two years. At Canterbury Law Group, we help clients work out many divorce issues before entering court in attempt to eliminate or reduce long cases. The longer the case, the more expensive it is for both sides.

Court TV is not reality – Court TV may have constructed an unrealistic image of what court is like for the majority of divorce cases. In fact, most cases reach a settlement before needing to see a judge, or if you see a judge, it might only be for a few preliminary hearings and no trial if you elect to settle later.

Rescheduling is common – Expect your court dates to be rescheduled for other cases that take priority in your jurisdiction, such as criminal trials. You cannot insist upon a court date just because the court issued it. Rather, be prepared for rescheduling. Change is constant in a divorce proceeding.

Patience is needed – In most courthouses, your case will not be the only case scheduled for a hearing. Be prepared to sit and wait for other cases to be heard before yours. However, you must always be on time in the event the court is on time.

Everyone has an opinion – When you are going through a divorce, you will realize that everyone has an opinion. Ignore most of them because each case is unique, and no one can give you divorce advice better than your divorce attorney. Don’t rely on what you ‘hear’ or ‘read’ on the internet. Secure top legal counsel and let them steer you successfully to the resolution of your case so you can move on with your life. For more on divorce legal services, go to www.canterburylawgroup.com or call 480-744-7711.

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Written by Canterbury Law Group

Divorce Timeline

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Most people have no idea what to expect when they decide to get a divorce. Considering that divorce is a difficult legal process, it may be filled with unpleasant surprises and annoying delays. Reviewing a legal divorce timeline is always beneficial to give you a general idea of what to expect and make you feel more at ease during a difficult time.

The timeline below provides a general idea of how a divorce typically plays out, but your divorce may deviate slightly due to unique circumstances involving you and your spouse or unique legal requirements in your state.

1. Beginning the legal divorce process

One of the spouses hires a lawyer to begin the divorce process, and the attorney drafts a petition (also referred to as a complaint), which is a legal document outlining the grounds for the divorce as well as the terms for dividing assets, child custody, and other matters.

2. Making the complaint and serving it

The petition or complaint is submitted to the court by the attorney. The petition or complaint, along with a summons requiring the other spouse to respond, are served on that spouse by the attorney or the court.

3. Getting Your Partner’s Response to the Divorce Complaint

The served spouse has a set amount of time to respond (usually about three weeks). The response indicates whether or not the spouse who was served concurs with the petition or complaint. He or she is presumed to have accepted the terms of the petition or complaint if they fail to respond. The response—also known as an answer—describes the served spouse’s preferred method of handling divorce-related decisions.

4. Beginning the process of property division and exchanging documents

Documents and information about things like property and income are exchanged by the couple. The couple and the court can make decisions regarding property division, child support, and alimony by reviewing this information.

5. Engaging in negotiations or mediation

The couple may occasionally agree to settle all of their differences amicably through mediation or settlement. In some states, divorcing couples must go through this procedure.

If a settlement is reached, it is presented to the judge during a non-judicial hearing. The judge will inquire about a few fundamental facts and whether each party is aware of the agreement and chooses to sign it.

6. Getting any settlement agreement court approval

If the judge accepts the settlement, they issue the couple a divorce decree outlining the terms of their agreement. The case will go to trial if he or she does not approve it or if the couple cannot come to an agreement.

7. Taking part in a divorce trial

The judge decides the unresolved issues, such as child custody and visitation, child and spousal support, and property division, after attorneys for each side present evidence and arguments at trial. The judge then grants the divorce after coming to a conclusion.

8. Contesting the judge’s judgment

A judge’s decision may be appealed to a higher court by either spouse or both spouses. However, it is uncommon for an appeals court to reverse a judge’s judgment. Also keep in mind that if both spouses accept the terms of the settlement, it is typically not subject to appeal. But if something needs to be changed after the trial, you might be able to change the divorce judgment.

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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Written by Canterbury Law Group

Inheritance and Divorce

Learn whether a court can divide your inheritance in a divorce.

Not necessarily. For purpose of divorce, the law usually categorizes property as either “marital” or “separate.” As a general rule, marital property is subject to division between the spouses; separate property isn’t. This is true whether you live in a “community property” state (like California), which divides property on a 50-50 basis, or an “equitable distribution” state (like New Jersey), which apportions property based on what the court believes is fair under the circumstances.

Is My Spouse Entitled to My Inheritance in Divorce?

That depends on a number of factors, including where you live. Each state’s divorce laws will govern how to address inheritance, in community property states and equitable distribution states as well.

In the overwhelming majority states, an inheritance is considered separate property, belonging exclusively to the spouse who received it and it cannot be divided in a divorce. That holds true whether a spouse received the inheritance before or during the marriage. But in a state like New Hampshire, for example, courts may consider an inheritance to be divisible in a divorce (unless you can persuade a judge that it shouldn’t be).

Now here’s the rub—although your state may initially view an inheritance as separate property, your actions can change it into marital property. Sometimes that happens intentionally in what is called a “transmutation of property.”

An example of an intentional transmutation of property from separate to marital is where a spouse inherits a house, then puts the other spouse’s name on the deed. The spouses move in and share the costs of living there. In that scenario, if a divorce rolls around, the inheriting spouse would be hard pressed to convince a judge that the house was never intended to be marital property.

But let’s say the inheriting spouse never puts the other spouse’s name on the deed, and neither spouse lives in the house during the marriage. At some point down the road, however, the non-owner spouse contributes to improvements which increase the house’s value. At the time of divorce, a judge might determine that—although the house itself may not be marital property—the increase in value specifically due to the improvements is a part of the marital estate, and thus subject to division between the spouses.

The most common example of converting an inheritance to marital property is when the inheriting spouse “commingles” (mixes) the inheritance with marital assets. This can be intentional, but often it happens by mistake. For example, Uncle Zeke passes on and leaves you $10,000 in his will. After you and your spouse break out the bubbly and toast the kindly gentleman, you put the money in an existing savings account that’s in both your names, and which either of you can access at will. If you did that because you wanted to share the inheritance money with your spouse . . . great! Mission accomplished.

But if you thought that putting that money in the joint account was just for convenience, and that it would always remain yours alone, you may have put yourself behind the proverbial eight-ball. By commingling the inheritance with marital funds, you’ve likely converted it into marital property. You can make an argument to the court that this was never your intention, but you’ll have an uphill climb.

Can I Claim My Ex’s Inheritance Received After Divorce?

Sharing a spouse’s inheritance after divorce is a nonstarter, unless your divorce judgment specifically addresses that topic.

That said, there is a situation where an ex-spouse’s post-divorce inheritance could come into play. If you’re receiving spousal support (alimony) or child support, you might be able to petition the court to increase the support amount, based on that inheritance or any interest income the principal is making.

Courts usually allow modification of support—both up and down—for a variety of reasons, such as a job loss, a spouse or child becoming disabled, or a spouse’s substantial pay increase (again, depending on the laws in your state).

You’d first have to see whether your state views an inheritance as a potential basis for a modification request. If it does, you may have viable grounds to seek an increase in support. Of course, this is going to depend in large measure on how significant the inheritance is. Your best bet for success is when the inheritance has substantially enhanced your ex-spouse’s standard of living.

 

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Written by Canterbury Law Group

Marital Property: Do’s and Don’ts

Marital Property: Do's and Don'ts

You and your partner have likely discussed how you will combine your property if you are planning to get married. For example, one of you may decide to vacate the apartment and host a garage sale to dispose of excess kitchen equipment or furniture. However, it may be prudent to consider how this property will be divided in the event of a divorce, as well as the fundamentals of managing your marital property.

When a couple divorces, the marital property (that which was acquired during the marriage or was otherwise shared) is divided in accordance with the state’s law regarding the division of marital property. A few states have “community property” laws that result in an approximately 50/50 division of marital assets. When dividing marital property, the majority of states use a “equitable distribution” procedure that takes into account the needs and assets of each spouse.

Regardless of your state’s laws and your family’s unique circumstances, the following tips will assist you in deciding how to manage your marital property most effectively.

The concept of marital property becomes significant upon marriage, despite the fact that the issue rarely arises in everyday life. All possessions and interests acquired by a couple during their marriage are referred to as “marital property.” Most married couples do not even consider understanding or keeping track of their marital property. However, if a divorce becomes a reality, ownership questions arise.

Arizona Marital Property Definition

Arizona is one of the few states that follows a community property approach to classifying marital property, as opposed to the majority of states that use an equitable distribution approach. The term “community property” refers to all property acquired during the marriage that is owned equally by both spouses and therefore will be divided equally upon divorce. In contrast, equitable distribution divides the marital estate in a “fair” manner, giving the court greater discretion to determine what is fair.

A Glance at Arizona’s Marital Property Laws

Statutes are the best source of information, but they are typically not written in a user-friendly manner. Consequently, it can be beneficial to also read a summary of the statute written in plain English. In the table below, you will find an overview of Arizona’s marital property laws as well as links to relevant statutes.

Statute(s)

25-211 et seq., Title 25, Chapter 2, Article 2, Arizona Revised Statutes (Property Rights and Contract Powers)

Is Community Property Acknowledged?

Yes

What is considered common property?

All property acquired by either spouse during the marriage, with the exception of property acquired by only one spouse:

As a gift or bequest; or

After service of a divorce, legal separation, or annulment petition (as long as the petition results in a decree).

What is considered to be separate property?

In addition to the exceptions listed above, real and personal property owned by one spouse prior to the marriage, as well as any rent, profit, or appreciation in value, are considered separate property.

What You Should Do to Manage Marital Property

Consider entering into a prenuptial or premarital agreement prior to marriage to specify which assets are exempt from division in the event of death or divorce.

Do keep accurate and comprehensive books and records to establish the separate nature of any property you wish to keep separate from the marital estate. You may wish to maintain separate ownership of property you owned prior to marriage, as well as gifts or inheritances you receive during the marriage.

If you’re concerned about keeping your separate property in your family (or as your personal asset) after your death or divorce, continue to keep it separate throughout your marriage. This generally means that you should not “commingle” property you owned prior to marriage with property you and your spouse acquire during the marriage, or it may become difficult — if not impossible — to legally determine whether the property in question is separate or marital.

Be aware that the increase in value of nonmarital property may be deemed marital, entitling each spouse to a portion of the increase upon divorce or death of the property owner. This is particularly true if the increase in value (or “appreciation”) is considered “active” as opposed to “passive.” For example, passive appreciation is the increase in value of a bank account due to interest earned or the increase in property value due to standard inflation. Active appreciation, on the other hand, is the result of effort, such as painting a rental property or actively managing a stock portfolio.

Use only your separate property to acquire additional property that you want to be considered separate. In other words, a boat purchased with pre-marriage funds and maintained in a separate account after the marriage is considered separate or non-marital property. However, if your spouse pays for a portion of it or even helps maintain it, the boat may no longer qualify as separate property.

If you wish for the proceeds of any personal injury case won during the marriage to retain their status as separate property, you must keep them separate. The money you receive from a personal injury lawsuit belongs solely to you, with the exception of any portion that reimburses you for lost wages or compensates your spouse for the loss of your services or companionship.

Managing Marital Property: Avoid These Mistakes

If you use separate funds to pay off a joint debt, those funds may lose their separate status.

Do not deposit income earned during the marriage into separate bank accounts. Generally speaking, income earned during a marriage is considered marital property, and depositing that income into non-marital accounts can result in “commingling,” so that the non-marital account is no longer considered separate property.

Even if you intend to keep track of which portion is separate, do not open a joint bank account with non-marital funds. If you want to keep non-marital assets separate, it’s much more prudent to maintain separate accounts.

Do not assume that if you owned property before your marriage, none of it will be considered marital property. For instance, if the value of the home you owned prior to the marriage increases during the marriage due to your and your spouse’s efforts to maintain and improve it, your spouse may be entitled to a portion of that increase.

Do not assume that a business you owned prior to marriage will remain solely your separate property after marriage. If the value of your business or professional practice increases during your marriage due in part to your spouse’s contributions, your spouse may be entitled to a portion of the increase upon divorce or your death. These contributions can be overt, such as bookkeeping or entertaining clients, or covert, such as caring for the home and children so that you can focus on running the business.

Obtain Expert Assistance in Managing Your Marital Property

Generally, marital property is not an issue unless a couple is divorcing, but it could be a factor in a prenuptial agreement or other situations. If you have any legal questions regarding marital property, you should seek professional legal assistance. Find a local family law attorney and obtain peace of mind.

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.

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Written by Canterbury Law Group

Community Property

Community property issues can arise during divorce proceedings and after a spouse's death. When spouses divorce or pass away, they are frequently left with the arduous task of dividing property and proceeds acquired during the marriage. This may include tangible assets (such as stocks, bonds, and legal title), as well as intangible assets (such as automobiles, furniture, paintings, and family homes) and debt. In some states, property acquired during the marriage is considered "community" property and is frequently divided 50/50 in the event of a divorce. The manner in which states treat "community property," also known as "marital property," will determine what happens to debt or assets upon divorce. Common Property Statutes State laws govern community property, and not all states have such laws on the books. Community property laws in nine states (and Puerto Rico) govern the division of debt and property in a divorce. Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin are included in this group. In such states, property is typically divided equally, whereas in all other states, distribution is determined by a judge based on what is equitable or fair. Alaska is distinctive in that divorcing couples have options. Despite the fact that each state determines how property is divided upon divorce, the laws may vary slightly. For instance, some states, such as California, divide debts and assets "equally" (50/50), while others, such as Texas, divide them "equitably." Even in community property states, courts in jurisdictions that apply the equitable distribution doctrine consider numerous factors, some of which justify unequal distribution of property or debt. Because these laws affect property and other valuable assets, they can have a profound impact on the future of a spouse who is forced to share a portion of an asset that was previously considered separate property. In the absence of a prenuptial agreement between the parties, property distribution will be governed by the law of the state in which the couple was married. Compared to separate property, community property In most cases, property acquired during a marriage belongs to both partners. This is particularly true in states where community property laws exist. Despite the fact that not all states have such laws, property acquired during the duration of a marriage is distributed equally upon divorce. The following are examples of community property: Earnings of each spouse during the marriage Home and furnishings acquired with marital funds during the marriage (reword) Investments and operations of a company generate interest income. The mortgage and family home Separate property, on the other hand, is that which was owned prior to the marriage, was inherited or received as a gift during the marriage, or was earned after the date of separation by either spouse. These are examples of separate property: Bank accounts that are held independently Separately held inheritances acquired during a marriage presents to either partner Personal injury compensation Any property acquired after the dissolution of a marriage is considered separate property. Courts have also categorized certain properties as "partially" or "quasi" community property. This includes assets that would have been considered separate property at the beginning or during the marriage, but have become marital property as a result of co-mingling or other circumstances. Considerations a Judge Might Employ to Determine Property Division A judge may consider several factors when determining how to divide property acquired during the marriage. A judge will consider 1) the earning capacity of each spouse, 2) which parent is the legal custodian of the children (if any), and 3) the existence of fault grounds such as adultery or cruelty. Consequently, even in states with community property, property may not always be divided 50/50. Instead, courts will consider the following factors to determine whether an unequal property division is necessary: One spouse may receive a larger share of the marital assets if fault-based grounds for divorce exist (such as adultery, cruelty, etc.). Loss of Continuing Benefit: Whether one spouse will incur the loss of compensation they would have received had the marriage continued. Disparity of Earning Capabilities: Whether disparities exist between incomes, earning capacities, and business opportunities that may impact property division. Health and Physical Conditions: Whether the physical health or condition of the spouses may impact the property division. Age Disparities: Whether there is a disparity between the ages of the spouses that could affect one's ability to work or receive retirement benefits. The size of the estate can have an impact on the distribution of property. The larger the estate, the more likely the court is to favor a 50/50 split. The likelihood that one of the spouses will receive a substantial inheritance. Gifts to a Spouse: After a divorce, gifts are typically converted to separate property. A spouse who obtains primary custody of children under the age of 18 may affect the division of property. Consult with a Divorce Lawyer Concerning Community Property Legal issues surrounding a divorce can be overwhelming in number. Property matters, alimony, child custody, child support, division of retirement benefits accrued during the marriage, visitation rights, and other legal matters must all be handled with care. Finding the appropriate divorce attorney is crucial. Contact a local divorce attorney with experience in your area today.

Community property issues can arise during divorce proceedings and after a spouse’s death. When spouses divorce or pass away, they are frequently left with the arduous task of dividing property and proceeds acquired during the marriage. This may include tangible assets (such as stocks, bonds, and legal title), as well as intangible assets (such as automobiles, furniture, paintings, and family homes) and debt.

In some states, property acquired during the marriage is considered “community” property and is frequently divided 50/50 in the event of a divorce. The manner in which states treat “community property,” also known as “marital property,” will determine what happens to debt or assets upon divorce.

Common Property Statutes

State laws govern community property, and not all states have such laws on the books. Community property laws in nine states (and Puerto Rico) govern the division of debt and property in a divorce. Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin are included in this group. In such states, property is typically divided equally, whereas in all other states, distribution is determined by a judge based on what is equitable or fair.

Alaska is distinctive in that divorcing couples have options.

Despite the fact that each state determines how property is divided upon divorce, the laws may vary slightly. For instance, some states, such as California, divide debts and assets “equally” (50/50), while others, such as Texas, divide them “equitably.” Even in community property states, courts in jurisdictions that apply the equitable distribution doctrine consider numerous factors, some of which justify unequal distribution of property or debt.

Because these laws affect property and other valuable assets, they can have a profound impact on the future of a spouse who is forced to share a portion of an asset that was previously considered separate property. In the absence of a prenuptial agreement between the parties, property distribution will be governed by the law of the state in which the couple was married.

In most cases, property acquired during a marriage belongs to both partners. This is particularly true in states where community property laws exist. Despite the fact that not all states have such laws, property acquired during the duration of a marriage is distributed equally upon divorce.

The following are examples of community property:

Earnings of each spouse during the marriage

Home and furnishings acquired with marital funds during the marriage (reword)

Investments and operations of a company generate interest income.

The mortgage and family home

Separate property, on the other hand, is that which was owned prior to the marriage, was inherited or received as a gift during the marriage, or was earned after the date of separation by either spouse.

These are examples of separate property:

  • Bank accounts that are held independently
  • Separately held inheritances acquired during a marriage
  • presents to either partner
  • Personal injury compensation
  • Any property acquired after the dissolution of a marriage is considered separate property

Courts have also categorized certain properties as “partially” or “quasi” community property. This includes assets that would have been considered separate property at the beginning or during the marriage, but have become marital property as a result of co-mingling or other circumstances.

Considerations a Judge Might Employ to Determine Property Division

A judge may consider several factors when determining how to divide property acquired during the marriage. A judge will consider 1) the earning capacity of each spouse, 2) which parent is the legal custodian of the children (if any), and 3) the existence of fault grounds such as adultery or cruelty.

Consequently, even in states with community property, property may not always be divided 50/50. Instead, courts will consider the following factors to determine whether an unequal property division is necessary:

  • One spouse may receive a larger share of the marital assets if fault-based grounds for divorce exist (such as adultery, cruelty, etc.).
  • Loss of Continuing Benefit: Whether one spouse will incur the loss of compensation they would have received had the marriage continued.
  • Disparity of Earning Capabilities: Whether disparities exist between incomes, earning capacities, and business opportunities that may impact property division.
  • Health and Physical Conditions: Whether the physical health or condition of the spouses may impact the property division.
  • Age Disparities: Whether there is a disparity between the ages of the spouses that could affect one’s ability to work or receive retirement benefits.
  • The size of the estate can have an impact on the distribution of property. The larger the estate, the more likely the court is to favor a 50/50 split.
  • The likelihood that one of the spouses will receive a substantial inheritance.
  • Gifts to a Spouse: After a divorce, gifts are typically converted to separate property.
  • A spouse who obtains primary custody of children under the age of 18 may affect the division of property.

Consult with a Divorce Lawyer Concerning Community Property

Legal issues surrounding a divorce can be overwhelming in number. Property matters, alimony, child custody, child support, division of retirement benefits accrued during the marriage, visitation rights, and other legal matters must all be handled with care. Finding the appropriate divorce attorney is crucial. Contact a local divorce attorney with experience in your area today.

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Written by Canterbury Law Group

Divorce Property Division

Divorce Property Division

Apart from child custody, one of the primary concerns of a divorcing couple is what to do with shared property. Who is going to get the house? Who is going to get the dog? The answer is contingent upon the state’s divorce laws and the spouses’ ability to reach an agreement.

This article addresses some of the most frequently asked questions about divorce property division.

When We Divorce, What Happens to Our Property and Debt?

The simplest way to deal with property during a divorce is to agree on how to divide it between you. When divorcing couples are unable to agree on how to divide marital property amicably, the matter may be brought before a judge in family court.

Under state law, property division is generally handled in two ways:

Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin, as well as the US territory of Puerto Rico, are community property states. This means that property acquired during the course of the marriage is considered community property (although there can be exceptions). Typically, community property is divided evenly during a divorce, while separate property is retained by its owner.

Equitable Distribution: In general, all other states adhere to equitable distribution. Rather than simply dividing the property’s value in half, a judge (or the couple themselves) will determine what is equitable or fair. In practice, this may mean that the higher-earning spouse receives two-thirds of the property, while the other spouse receives only one-third.

Take note that when courts divide property, this does not necessarily mean that the property is split literally (or physically). A court will calculate the total value of the marital estate and allocate a percentage to each spouse. Each spouse must secure that amount in their own unique way, which may include selling a home, transferring a portion of an IRA, or buying out a spouse’s interest in a business. These are the property division details that a divorce attorney assists you in determining.

What Is the Distinction Between Community and Private Property?

Community Property: Unless otherwise specified, this term refers to all property, assets, and debt acquired during the marriage. For example, a loan may have been taken out specifically for one person. It could be their own debt.

Separate Property: This term refers to property acquired prior to the marriage, as well as gifts, court awards, inheritance, and pension proceeds received during the marriage. Separate property acquired remains separate property (e.g., a boat bought with inheritance money).

Be aware that separate property can become community property if it is commingled. For instance, an inheritance used to pay off a mortgage, or a business started prior to marriage and sustained by the marriage.

Property acquired with commingled funds: If you acquire or maintain property using a combination of separate and community funds, a court is likely to determine that it is community property. If you wish to keep your property separate, you must work diligently to do so; otherwise, it will become commingled and converted to community property.

Who Gets the House in Property Division?

Who gets the house is a matter of circumstance. If there are no children, courts distribute the marital home differently.

Neither party has the legal right to demand the other’s departure, but one partner can always make the request. That said, it may be illegal for them to lock you out before the divorce is finalized, while you still own the home. You may contact the authorities if they do so. The obvious exception is in cases of domestic violence in which one partner has been served with a restraining order.

Caution: Unhappy relationships can become extremely toxic at times. Take care not to fabricate domestic violence in order to evict the other partner. If the judge believes you’ve done this, you could jeopardize your right to marital property, including ownership of the house.

If you and your spouse are unable to agree on who gets the house, the court will make the decision based on its rules, state law, and the type of property system in your state.

If you have children, the parent who is responsible for the majority of child rearing typically retains the marital home.

If one partner purchased the house with their own money and there are no children, they can generally keep it and require the other to vacate.

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.

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Written by Canterbury Law Group

Annulment in Arizona

Are you wondering if you are eligible for an annulment? Learn about the grounds for annulment in Arizona and how to obtain one.

Annulment is a frequently misunderstood legal concept, owing to the fact that popular culture and religion have promoted divergent and frequently erroneous views of what an annulment is in family law.

This article discusses “civil annulments,” as opposed to “religious annulments,” which can be granted only by a church or clergy member and have no legal effect on your marital status.

Annulments and divorces are similar in that they both establish marital status. However, the critical distinction between them is that divorce terminates an existing, valid marriage, whereas annulment simply declares that what everyone believed was a marriage was never actually one. An annulled marriage never existed in the eyes of the law.

Arizona’s Grounds for Annulment

There are several circumstances in which you may petition an Arizona court to annul your marriage:

  • One of the parties was married to another individual (bigamy).
  • The parties are blood relatives.
  • At the time of the marriage, one of the parties was a minor and did not obtain the consent of a parent or guardian.
  • One of the parties, or both, lacked the mental capacity to marry.
  • Both parties lacked the physical ability to marry.
  • At the time of the marriage, one or both parties were intoxicated.
  • The parties lacked the intent to enter into a marriage contract, either one of them or both.
  • The parties failed to obtain an official marriage license in a timely manner.
  • Instead of marrying each other in person, the parties used a proxy (substitute).
  • One of the parties committed fraud in order to obtain the consent of the other party to the marriage.
  • The one party used coercion (legally referred to as “duress”) to coerce the other party into agreeing to marry.
  • The parties have not engaged in sexual relations or one of the parties has refused to engage in sexual relations.
  • One of the parties fabricated information about his or her religion.
  • One of the parties omitted information about his or her previous marital status.
  • One of the parties planned to violate a premarital agreement in secret.

How Can I Obtain a Court Order Terminating My Marriage?

Due to the fact that annulment actions are heard in Arizona’s superior (trial) courts, you must file your paperwork at your local courthouse. By court order, an Arizona superior court judge can declare a marriage null and void and annul it. The “plaintiff” (the party seeking annulment) should file an annulment petition, and the defendant should respond. Additional documents may be required, and both parties must adhere to the rules governing service of process. Both will be summoned to appear in court, where the court will hear testimony, consider written submissions and applicable law, and issue an order.

Because annulments have significant financial and custodial consequences, it is critical to consult with a lawyer prior to proceeding.

Certain individuals fear that if their marriage is annulled, the paternity of their children will be questioned. Technically, this is correct. Due to the fact that an annulled marriage is invalid, the children born of the “marriage” are illegitimate, as if they were born to single parents. This, however, is a technical distinction with little practical significance, as Arizona law provides that “every child is the legitimate child of its natural parents and is entitled to support and education in the same manner as if born in lawful wedlock.” Thus, all children in Arizona receive the same level of protection and support regardless of their parents’ marital status, whether they are divorced or never married. While that statute does not affect parental rights, the courts in Arizona have also determined that parents of children born outside of marriage have co-equal custody of their children once paternity is established.

In Arizona, a presumption of paternity is created (a strong legal assumption that the alleged father is the biological father) if any of the following are true:

the father and mother were married within the ten months preceding the child’s birth, or the child is born within the ten months following the marriage’s termination by death, divorce, or annulment.

  • Genetic testing establishes at least a 95% probability of paternity.
  • A birth certificate is signed by both the mother and father of an unmarried child, or
  • Both parents sign a notarized or witnessed statement acknowledging paternity.
  • Thus, the majority of children born out of annulled marriages in Arizona are almost certainly covered by a paternity presumption. If a father wishes to contest this presumption, he must establish his paternity through “clear and convincing” (very strong and substantial) evidence.

Additionally, the Arizona court hearing the annulment case will determine parentage and enter custody and child support orders.

Because an annulled marriage is legally regarded as never having been valid, courts in the majority of states lack the authority to award alimony or divide property or debts. This is because there cannot be a marital estate without a valid marriage. However, Arizona is unique in that it has a more generous statute. According to Arizona law, when a marriage is annulled, the courts must divide the property between the spouses.

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Written by Canterbury Law Group

Different Types of Separation

What does the term “separated” mean? Discover the distinctions between trial separation, permanent separation, and legal separation.

When it comes to marriage, separation is not synonymous with divorce—even if you have a court-ordered “judgment of separation.” Separation is when you live apart from your spouse but remain legally married until you obtain a divorce judgment. While a separation does not terminate your marriage, it does affect your financial obligations to your spouse until the divorce is final.

Separation is classified into three types: trial, permanent, and legal. In the majority of states, only one of the three (legal separation) alters your legal status—but all three have the potential to impair your legal rights.

Separation of Trials

If you and your spouse feel the need for a break from the relationship, one option is to live apart while deciding whether to divorce—a process known as “trial separation.” Legally, little changes during a trial separation—all applicable marital property laws remain in effect. For instance, a court will consider the money you earn and the items you purchase during the trial separation to be property acquired by a married person. This frequently means that you and your spouse jointly own the property (depending on your state’s property ownership laws).

If you and your spouse separate but intend to reconcile, it’s a good idea to write an informal agreement outlining the separation rules. For instance, your trial separation agreement may address the following:

  • whether you’re going to continue sharing a joint bank account or credit cards.
  • how you intend to budget your expenditures
  • who will continue to reside in the family home
  • how you intend to split expenses, and
  • If you have children, discuss how and when you will spend time with them.
  • If you decide to divorce, you may be able to use this trial separation agreement as a template for a marital settlement agreement.
  • If you and your spouse agree that reconciliation is impossible, your trial separation becomes permanent.

Permanent Distancing

If you live apart from your spouse with no intention of reconciling but are not divorced, the law considers you to be permanently separated.

How Separation from Your Spouse Affects Your Rights

Depending on the local law, a permanent separation may alter the property rights of spouses. For instance, in some states, assets and debts acquired during a permanent separation are considered to belong exclusively to the spouse who acquired them. Once a couple is permanently divorced, each spouse assumes sole responsibility for any debts incurred. Similarly, spouses who divorce permanently lose their right to any property or income acquired by the other.

Why Does the Date of Final Divorce Matter?

Due to the fact that spouses’ rights to each other’s property and obligations to pay debts change significantly as of the date of a permanent separation, spouses frequently argue bitterly about the precise date of their permanent separation. For instance, if your spouse left in a huff and spent a month sleeping on a friend’s couch, but you did not discuss divorce until after the month passed, the date the separation became permanent may be unclear. That means that if your spouse earned a sizable bonus at work during that month, you may be able to argue that you are entitled to a portion of the bonus.

If you move out of the house and do not anticipate a long-term reconciliation with your spouse, reconsider going out or spending the night together just for the sake of old times. If you reconcile briefly, you risk changing the date of separation and becoming financially responsible for your spouse during a time when you believed you were solely responsible for your own.

After you have legally separated from your spouse and reached basic agreements regarding your joint assets and debts, you are not required to divorce immediately. You may choose to remain married for a variety of reasons, including avoiding disruption of your children’s lives or retaining insurance coverage. Or, in some cases, preserving the status quo is simply more convenient than pursuing a divorce. On the other hand, you may decide to divorce as soon as the paperwork is finalized, or when the required separation or waiting period in your state expires.

Is Separation Required Prior to Divorce in My State?

Certain states’ laws require spouses to separate before a divorce can be finalized. State laws governing required separations vary in detail—for example, many states require spouses to live “separately and apart” for a specified period of time before the court will accept a divorce petition (formal request), while others do not require separation until after the petition is filed. If you file before meeting the requirements for separation, the court may dismiss your case. Other states may require spouses to live apart during the divorce process.

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Written by Canterbury Law Group

Legal Separation Before Divorce

Legal Separation Before Divorce

An arrangement ordered by the court, a legal separation is when married couples live apart from each other and lead independent lives. It is a popular option when the parties concerned are considering the future of their relationship abut also want to ensure financial responsibilities and other boundaries are going to be honored by both sides. In some areas, this is a necessary step in the divorce process. Read on to learn more.

Facts To Consider

  • The court may order specific obligations in the areas of finance, visitation of a child or children as well as custody of a child or children and support for a child or children.
  • Although legally separated there may be particular benefits there are entitlements too.
  • For some people spiritual beliefs and financial reasons as well as for the wellbeing of minor aged children may be a factor in obtaining a legal separation versus a divorce.
  • A legal separation is an agreement ordered by the court where the two parties have separate lives, and this means they usually live separately.
  • Legally separated couples can sometimes remain “insured” on the other person’s health, dental and vision insurance—check with your carrier before going this route.

How Does It Work?

There are many reasons for wanting a legal separation including:

  • Religious reasons forbidding divorce, whereas legal separation allows the majority of the benefits of divorce.
  • When the marriage still has the possibility of recovery.
  • Legal separation is sometimes best for a couple with minor aged children, promoting stability.
  • The retention of retirement and health benefits.

Some couples choose this route without a court order and many are embracing informal separations and no-fault divorce cases, making legal separation in a formal sense less common than it used to be. When the separation date arrives, the party’s ability to spend money from a bank account or credit card held in both names is limited – as well as bringing in controls over vehicles and property. Each party following the separation ate becomes responsible for their own finances.

Legal Separation Benefits

Once a couple have reached their tenth wedding anniversary certain future benefits may be contended with. When deciding to separate, the legal separation agreement may keep some entitlements of benefits intact. For example, those married to members of the military must remain married for ten years to benefit from the Uniformed Services Former Spouse Protection Act. Once married for ten years, it also means you can benefit from particular social security benefits. You may be able to draw a larger sum if you can draw the benefits of the social security retirements of your former partner. Nonetheless, there are time a legal separation is preferential to divorce. The separation may be temporary whereas a divorce is a permanent condition absent remarriage. It can also be used as a “last chance saloon” to save a troubled marriage. Legal separation also has the benefit of being less costly than a divorce and to go through the process before continuing with divorce can make the whole situation for a child or children easier to endure.

Do Divorcing Couples Have to Live Separately?

Depending on where you live, you may be unable to live apart—again, many states require spouses to separate before a court can grant a divorce.

State Requirements Regarding “Separate and Apart”

Your state may require you and your spouse to live “separate and apart” for a specified period of time prior to filing for divorce or a judge finalizing your divorce. Each state has its own set of rules.

States That Do Not Require Divorce

The majority of states (particularly those with no-fault divorce) do not require spouses to live apart prior to divorcing. California, Texas, and Florida are all non-separation states. If you live in one of these states, you are permitted to cohabitate with your spouse during the pendency of your divorce.

If you’re unsure whether your state requires separation prior to filing for divorce, you can conduct research on the state’s divorce laws, contact a local family law attorney, or contact a local legal aid department.

Do We Need a Separation Agreement in Writing?

When a couple divorces, it is possible, if not probable, that communication is disrupted to some degree. Even if you and your spouse are amicable when you separate, your relationship may deteriorate as the divorce process progresses. By documenting the terms of your separation, you can avoid future conflict or uncertainty. Additionally, if you decide to continue living together during your divorce, a separation agreement is critical to demonstrate your intention to separate on a specific date. Similarly, if you live in a state that requires you to separate for a period of time before the court will accept your divorce petition, a separation agreement is an excellent way to establish your separation date.

Your written separation agreement can serve as a road map for your relationship until the court accepts your divorce petition and issues temporary orders, if necessary. (Temporary orders may include provisions regarding child support, child custody, spousal support, and property division.) Having said that, if you and your spouse are unable to agree on how you will handle things during the separation or if you are unable to convince your spouse to sign a separation agreement, you may petition the court for temporary orders prior to initiating the divorce process.

The Separation Process’s Subsequent Steps

Divorce is a lengthy process. It could take up to a year from the time you file your case to the time the judge rules on it. On the other hand, depending on your state, you may be able to divorce within 30 days if you have an amicable divorce with few hiccups. In either case, you should have a contingency plan in place while you wait.

Take out a credit card on your own. Divorce can have a detrimental effect on your credit, so obtaining your own credit card now can help you establish credit and maintain independence from your spouse. Establishing a separate credit card or bank account (discussed below) will also assist you in establishing your separation date during the divorce process. (When it comes to property division, child support, and spousal support, the judge will need to know the date of separation.)

Maintain separate bank accounts. Following that, close your joint bank accounts and open new ones. If you and your spouse are unable to agree on how to divide the money in your accounts or if you have concerns about how to divide your paychecks, keep the joint accounts open but open an individual account as well.

Create a property list. Begin by compiling a list of your exclusive personal property and presenting it to your spouse. If you have a disagreement about something, you can attempt to resolve it without involving the court.

Recognize areas of agreement. If your spouse is willing, your period of separation may enable you to negotiate the terms of your divorce calmly. Discuss issues such as spousal support, child support, and child custody. If you believe you and your spouse are capable of negotiating the terms of your divorce collaboratively, you can look into DIY divorce services together or consider hiring a professional mediator to assist you in resolving any disagreements. Considerable forethought can go a long way in a divorce. Likewise, healthy communication is possible. Take the time to chart your course as you embark on the next phase of your life, including when it comes to establishing a healthy living situation that protects your rights. You’ll be glad you invested your energy early in the process as the divorce progresses.

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.

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Written by Canterbury Law Group

Reasons And Rights For Legal Separation

Reasons For Legal Separation

A legal separation is a legal procedure (similar to a divorce) in which a married couple petitions (asks) a court to allow them to live separate and apart from one another and terminate any marital obligations. The only difference is that the couple is still technically married, which means they have not terminated their marriage and are unable to remarry unless they divorce.

Legal separation is also known as a “limited divorce,” “judicial separation,” or “separation from bed and board,” depending on the state in which you live. In some states, spouses must first be legally separated before filing for divorce. The time it takes to get a legal separation is usually between 6 months and 2 years, but it varies depending on the laws in each state.

In jurisdictions where legal separation is not permitted, the spouses could simply live apart and sign a written separation agreement (signed by both spouses) to achieve the same result.

What are the Rights of Spouses During a Divorce?

A court can decide on child custody and support, alimony, and property division in a legal separation proceeding. However, as previously stated, the spouses will remain legally married and will not be able to remarry unless they obtain a divorce.

The following are some of the most common issues that arise between divorcing couples:

  • whether one spouse is entitled to alimony for a limited period of time
  • If there are minor children, how much child support should be paid?
  • rights to the family home, such as whether either spouse has the right to live in the marital home during the divorce and who will pay the mortgage, and
  • which debts each spouse is responsible for

Is a Legal Separation Necessary?

Because their religious beliefs forbid divorce, some couples opt for a legal separation. A legal separation is viewed by some couples as a “cooling-off period” in a troubled marriage. Whatever the reason, a separation has the benefit of providing a legal framework for both parties in the event that one fails to adhere to the terms of an agreement or support obligations. If one spouse fails to pay child support or alimony, for example, the separation judgment and order(s) will give the recipient spouse the right to have the orders enforced in court, which means a judge can make the delinquent spouse pay. There is no way to enforce the overdue payments if there is no legal separation or separation agreement followed by a court order. When a legal separation or separation orders are in place, the spouse who does not pay can be held in contempt, which can result in fines, penalties, and even jail time. While the spouses try to figure out whether they want to stay married or divorce, a legal separation may provide some stability to a rocky relationship.

Do you require the services of a lawyer?

If you’re being asked to sign a separation agreement, you should seek legal advice to understand the terms and how they affect your rights. Never sign a legal document without first consulting an attorney. If you are seeking legal separation, an experienced family law attorney can assist you in protecting your rights both before and after the separation.

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.

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