Q:

ARE THERE LEGAL WAYS TO PROTECT YOUR ASSETS FROM A DIVORCING SPOUSE?

A:

The single biggest way in which you can protect your assets from your wife is to make sure that she signs a prenuptial (premarital) agreement before you marry her. A prenuptial agreement provides much flexibility in deciding how assets and debts will be divided during a divorce. Most importantly, you can eliminate or greatly reduce what some call “legal theft” or “financial slavery,” otherwise known as alimony or spousal maintenance. But if it is too late for that, you could try to get her to sign a postnuptial agreement. Postnuptial agreements are permitted in Arizona. But you must proceed very carefully because this is a tricky area of the law.

Whether you are planning to have your wife sign a prenuptial agreement or a postnuptial agreement, you will need the guidance and advice of an experienced Arizona prenuptial agreement attorney or Arizona postnuptial agreement attorney. If neither an Arizona prenuptial agreement nor a postnuptial agreement are viable options in your situation, the only other thing you can try is to delay the divorce itself. If you delay the divorce filing, you may be able to prepare for a divorce by taking certain steps to reduce your exposure in a future divorce.

This is a very complicated and risky area of the law, and you should never take such steps unless you meet with an attorney who can help you plan for an eventual divorce. At our office, we offer a divorce planning service. This inexpensive service can save you perhaps tens of thousands or even hundreds of thousands of dollars on asset division, spousal maintenance and child support payments. There are legal ways to protect yourself if you have the time to do it and you know how to do it without running afoul of the law.

Impact Of Marital Infidelity On A Divorce Proceeding

If you cheated on your wife, you will not suffer an adverse consequence in your divorce case unless your children were exposed to the cheating. For example, if you foolishly slept with many women and introduced many of them to your children, a judge could find that behavior to be harmful to the children and give you less parenting time or fewer rights as a result of your carelessness. But if you were discreet about it, the judge will not care and will not punish you with regard to how assets and debts are divided. However, if you spent much money on your mistress and your wife can prove that you did so, your wife may have a claim to half the funds expended on your mistresses.

Also, it is possible that a judge could feel sympathetic to your spouse and subconsciously rule in her favor in areas where the judge could decide the matters either way. So it is important to have an experienced and effective Arizona divorce attorney on your side in order to anticipate and swiftly deal with your wife or your wife’s attorney’s attempts to creatively “mention” the affairs in an effort to affect the judge emotionally. Some judges, particularly those that are very religious, may have a hard time keeping their emotions from affecting how they rule if they could easily justify with evidence a ruling in either direction. Most judges are very good at being unbiased in such matters but you do not want to take chances. Having an attorney who knows how to proactively shut down sneaky attempts to use the marital affairs as a weapon against you is invaluable.

Q:

When Is The Best Time To File For Child Support If The Father Is Going To Have Physical Custody?

A:

Physical custody, also referred to as “parenting time” in Arizona, is the amount of time each parent spends with the child. The other way the term “custody” can be used is to refer to what is now called “legal decision-making authority.” If the father is the one with whom the children are primarily residing, and if there is no court order at that time, the father should file as soon as possible.

Every situation is different and sometimes, clients are advised to do something different than what is advised in other similar situations. The reason why the father should file a case as soon as possible is to protect himself in case the mother tries to renege on the custody agreement, or if she all of a sudden wants to change the fact that the kids are residing with the father primarily. She can simply take the children away from him and then the father will have to scramble to court to get an emergency hearing to restore the prior status quo.

This may happen because most police officers will not get involved if there is no existing court order. They often tell parties in such situations to go to family court and work out the issues there. In fairness, cops do have more important things to do than to mediate family disputes. This is why it is critical to have court orders in place so that if the mother violates those orders, she can be held in contempt of court or face other sanctions. And if there is a court order, a police officer is much more likely to help you if the other parent is refusing to turn over the children.

With regard to child support, in Arizona, a parent can often go back as much as three years from the original filing date to get retroactive child support. And in very rare cases the parent can go back farther than three years, but this exception will not be described here because it is so rarely seen. The three-year rule is often a trap for fathers who are NOT the primary caretaker. They sometimes unknowingly pay far less in child support than they are supposed to, and when eventually a court case is filed, they get hit with a massive past-support claim. These figures can reach into the tens of thousands of dollars. At least the interest rate is lower now, around 4 percent. It used to be 10 percent, causing many fathers to be stuck in a horribly financially oppressive situation for years.

Q:

What Determines The Child Support Payment Amount?

A:

The child support amount is calculated by referring to statewide guidelines. There is a formula that will apply these guidelines to a particular situation. The components that go into the child support calculation are the following:

  • each party’s income
  • whether or not either party has other children, and if so, whether or not they receive or pay support for that other child
  • the cost of medical, dental, and medical insurance
  • the cost of child care
  • the cost of any extraordinary expenses and
  • the amount of parenting time each parent receives

The result will be the presumptive child support payment. Judges are allowed to deviate upward or downward from the presumptive amount of child support if good cause exists to do so. However, judges rarely deviate from the guidelines if the parents don’t agree on the deviation. In fact, even if they do agree on the deviation, whether upward or downward, the judge can overrule their agreement.

The judge has the final say on what the appropriate amount of child support should be. This is because historically some parents would agree to drop a request for child support in exchange for an agreement that they would have sole custody. However, this harmed the child because in many such cases, not enough money was flowing into that household to meet the child’s financial needs. An example of such a case is a wealthy father and a poor mother who agree to this kind of trade. The child would then live in poverty with the mother while the father would have the full use of his money solely for himself. However, that rarely happens nowadays, and a lot of men insist on paying at least what the guidelines say.

In many cases where men are the primary caretaker, they will often refuse child support from the mother if the amount they are entitled to receive is less than one or two hundred dollars. The same thing cannot be said for most mothers. It is seen that no matter how small the amount they are entitled to receive, they almost always will refuse to deviate downward to zero.

Another thing to keep in mind is that child support cannot be modified retroactively. This means that if you are a father and are paying child support to the mother based on a higher income that you no longer have, you are overpaying on child support. If you wait months or years to request a modification of the child support amount in order to make sure you are paying the correct amount of child support, you will not be able to get a credit for what you overpaid prior to the date that you filed your petition to modify child support. This is a mistake many men make.

Men need to be more diligent about requesting the modification right away. However, they have to make sure that they have a basis to modify child support. The general standard is that there must be a “substantial and continuing change” in what the child support amount should be. The child support amount must increase or decrease by more than fifteen percent for most judges to find that a substantial and continuing change has occurred.

When experienced attorneys meet with clients in an initial consultation about a child support modification, one of the first things they do is a calculation based on the information they have at that time, to see if there’s a good chance for success in seeking to modify the child support amount.