Arizona Divorce & Family Law

What happens during a divorce if a community home is about to be foreclosed or has already been foreclosed?

2008-02-28T00:39:00.005-07:00

With Arizona’s (and the rest of the country’s) current depressed real estate market, many people are facing foreclosures. A few things to keep in mind:

1. The foreclosure is going to continue on in most divorce circumstances unless the home’s mortgage is brought current, along with the reasonable costs associated with the foreclosure, such as attorney fees.

2. Arizona has an anti-deficiency statute that is going to apply in the majority of cases involving standard mortgages. Thus, Arizona law offers protection to homeowners whose home has been foreclosed. This statute, A.R.S. §33-729, states as follows:

33-729. Purchase money mortgage; limitation on liability

A. Except as provided in subsection B, if a mortgage is given to secure the payment of the balance of the purchase price, or to secure a loan to pay all or part of the purchase price, of a parcel of real property of two and one-half acres or less which is limited to and utilized for either a single one-family or single two-family dwelling, the lien of judgment in an action to foreclose such mortgage shall not extend to any other property of the judgment debtor, nor may general execution be issued against the judgment debtor to enforce such judgment, and if the proceeds of the mortgaged real property sold under special execution are insufficient to satisfy the judgment, the judgment may not otherwise be satisfied out of other property of the judgment debtor, notwithstanding any agreement to the contrary.
B. The balance due on a mortgage foreclosure judgment after sale of the mortgaged property shall constitute a lien against other property of the judgment debtor, general execution may be issued thereon, and the judgment may be otherwise satisfied out of other property of the judgment debtor, if the court determines, after sale upon special execution and upon written application and such notice to the judgment debtor as the court may require, that the sale price was less than the amount of the judgment because of diminution in the value of such real property while such property was in the ownership, possession, or control of the judgment debtor because of voluntary waste committed or permitted by the judgment debtor, not to exceed the amount of diminution in value as determined by such court.

Interpreted, this statute means that for the average homeowner, a lender cannot seek to recover from the homeowner any shortages when the foreclosing bank sells the house for less than the outstanding mortgage amount. The second part of the statute is interesting, but reasonable, in that it references voluntary waste –if, for example, a homeowner angry at the foreclosing bank wrecks his/her home intentionally, the homeowner may be responsible for the effect the damage has on the home’s value.

So what options does a homeowner have in a divorce situation or otherwise? Here are a few:

1. Let the bank foreclose on the property. The foreclosure in most circumstances will absolve the homeowner from most or all further financial responsibilities but will not reflect well on the homeowner’s credit report. Consult an attorney regarding your specific situation prior to assuming that there will be minor or no financial repercussions as there are exceptions to the anti-deficiency provisions of A.R.S. § 33-729. If there are negative financial repercussions, community property principles apply and if a divorce situation exists, then the parties or court will decide the parties responsibility for the financial obligations. Of course, any divorce rulings define the rights and obligations as between the parties only and are not binding on third party creditors, such as mortgage holders, meaning that banks are free to go after both parties if community property/obligations are involved.

2. Bring the mortgage current and retain the property. The homeowner will have to pay additional fees/costs to do so but then will continue to own the property.

3. Consider a “short sale” which is an effort to sell the property at a reduced price so that the bank will not have to bother with the time and expense of foreclosure. The bank then accepts the buy-out, basically, with less negative effects on the homeowner. It’s more complex than that but that’s the gist. I recommend that a lawyer guide both the seller and buyer of anyone participating in a short sale situation; as well, a good real estate agent familiar with short sales is recommended. Of course, when the real estate market is better than it is at the time of this writing, selling a house and paying off the mortgage in full is easier than it is now. In addition, some lenders will not agree to short sales because they believe it sets a bad precedent that too many other borrowers will attempt to use. Another piece of the short sale puzzle is the possibility the IRS will consider any amounts forgiven as income (consult an attorney regarding the Mortgage Forgiveness Debt Relief Act of 2007 for specifics on that new law and related consequences).

Real estate issues are complex and real property is often the largest asset involved in a divorce. It’s a good idea to consult with a competent attorney prior to making decisions about real estate!

Wilcox Legal Group, P.C.
Carrie M. Wilcox, Esq.
For the Firm

Phoenix office:
3030 N. Central Ave., Ste. 705
Phoenix, Arizona 85012
Ph: 602-631-9555
Fx: 602-631-4004

Goodyear office:
1616 N. Litchfield Rd., Ste. 240
Goodyear, Arizona 85338
Ph: 623-344-7880
Fx: 602-631-4004

Visit our website: www.wilcoxlegal.com

Disclaimer: Providing the above information does not establish an
attorney-client relationship. To create such a relationship, both the
attorney and potential client must sign a written fee agreement. The
information contained herein is meant only as general information and is not meant to be relied upon for the purpose of taking legal action. You should contact an attorney in person for further and specific information. Wilcox & Wilcox, P.C. attorneys are licensed in Arizona only except for personal injury attorney Robert N. Edwards, who is licensed in Arizona and Minnesota.

Court Rules on Statute of Limitations issue Under Arizona Rules of Civil Procedure

2006-12-31T10:12:00.000-07:00

By Carrie Wilcox, Esq.

The Arizona Supreme Court recently interpreted Rule 15(c) of the Arizona Rules of Civil Procedure. In so interpreting, the Supreme Court intended to end the disparate conclusions to which lower courts were coming as they ruled on issues of amended complaints and relating back certain filings to previous filing dates.

In this case, Tyman v. Hintz Concrete et al, CV-06-0008-PR, the plaintiff was injured at a construction site. Tyman v. Hintz Concrete et al 2. The plaintiff’s attorney, unfortunately, had difficulty determining who was responsible for the construction site and initially provided notice to the City of Surprise of the intent to sue. Id. Upon discovering that the City of Surprise was not responsible for the site, the plaintiff searched for the appropriate party to sue. Id. at 2-3. With incorrect parties listed on her complaint, the plaintiff was forced to file suit immediately before the statute of limitations ran. Id. 3.

After filing her initial complaint in the Maricopa County Superior Court and subsequent to Arizona’s two-year statute of limitations, the plaintiff discovered and added the defendants actually responsible for the construction site where she was injured. Id. The defendants moved for summary judgment based on the statute of limitations, which the Maricopa County Superior Court granted and the Arizona Court of Appeals affirmed. Id. Plaintiff appealed to the Arizona Supreme Court who upheld the lower courts’ decisions. Id.

In agreeing with the lower courts’ ultimate rulings, the Arizona Supreme Court determined that the Maricopa County Superior Court judge’s reasoning was most in line with the Supreme Court’s thinking. Id. at 6-9, 11. Although the Court of Appeals also ruled for the defendants, the Supreme Court found fault with its logic. Id. at 7-9. Thus, the Arizona Supreme Court’s more closely approximates the Maricopa County Superior Court’s holding, although the Supreme Court also found some of the trial court’s reasoning faulty. Id. 7.

Specifically, the Arizona Supreme Court’s ruled that the type of mistake Arizona Rule of Civil Procedure 15(c) anticipates had not occurred in Ms. Tyman’s case. Rule 15’s mistake provision extends to certain types of identification errors but not to situations where a party absolutely does not know who the proper defendant might be. Id. at 10-15.

Thus, Ms. Tyman’s amended complaint was filed too late, her case remained dismissed and she was denied a chance at redress against the defendants.
__________________

*Attorney Carrie M. Wilcox is the sole shareholder of Wilcox Legal Group, P.C. She is a graduate of Arizona State College of Law where she was a Note and Comment Editor for the Arizona State University Law Journal and former intern for the Honorable Rudolph Gerber, Arizona Court of Appeals. Ms. Wilcox is admitted to practice in the Arizona state courts and federal district court. Ms. Wilcox practices in the areas of business formation and creditor rights/debt collection. She also has wide-ranging experience in civil litigation, including employment law, family law, personal injury and business representation. Please contact Attorney Carrie Wilcox at 602.631.9555 for further information.

Phoenix office:
3030 N. Central Ave., Ste. 705
Phoenix, Arizona 85012
Ph: 602-631-9555
Fx: 602-631-4004

Goodyear office:
1616 N. Litchfield Rd., Ste. 240
Goodyear, Arizona 85338
Ph: 623-344-7880
Fx: 602-631-4004

Visit our website: http://www.wilcoxlegal.com

Disclaimer: Providing the above information does not establish an
attorney-client relationship. To create such a relationship, both the
attorney and potential client must sign a written fee agreement. The
information contained herein is meant only as general information and is not meant to be relied upon for the purpose of taking legal action. You should contact an attorney in person for further and specific information. Wilcox & Wilcox, P.C. attorneys are licensed in Arizona only except for personal injury attorney Robert N. Edwards, who is licensed in Arizona and Minnesota.

ARIZONA SUPREME COURT RULES IN TWO AUTOMOBILE WARRANTY CASES

2006-10-08T21:50:00.000-07:00

Although not related to family law, the following article may be interesting to anyone who has bought or leased a car that didn't turn out to work so well.... The script got a little fussy so you'll see some bold, some normal text.

____________________________________________________________________

ARIZONA SUPREME COURT RULES IN TWO
AUTOMOBILE WARRANTY CASES

By Carrie Wilcox, Esq.*

Summary: The Arizona Supreme Court deals with automobile warranties, service contracts and lemon law issues in recent legal decisions.

The Arizona Supreme Court recently decided two cases involving motor vehicle warranty issues. In the first, Parrot v. DaimlerChrysler Corporation, 130 P.3d 530; 473 Ariz. Adv. Rep. 32, the questions revolved around an automobile lease situation, the Arizona Lemon law and the Magnuson-Moss Warranty Act. The second case, Johnson v. Earnhardt's Gilbert Dodge, Inc., 132 P.3d 825; 476 Ariz. Adv. Rep. 33, also involved the Magnuson-Moss Warranty Act as well as a service contract issue.

A. Parrot v. DaimlerChrysler (full text of case available at http://www.wilcoxlegal.com)

In denying Mr. Parrot relief under both the Magnuson-Moss Warranty Act (hereinafter the “Warranty Act”) and the Arizona Motor Vehicle Warranties Act (commonly referred to as Arizona’s Lemon Law), the Arizona Supreme Court wrestled with two primary issues, including whether Mr. Parrot was a consumer as defined by the Warranty Act and whether the limited relief available to consumers under Arizona’s Lemon Law was available to him. In overturning the Arizona Court of Appeals decision that favored Mr. Parrot, the Arizona Supreme Court ruled that neither the federal Warranty Act nor the state Lemon Law allowed Mr. Parrot the relief he sought.

1. Magnuson-Moss Warranty Act ((15 U.S.C. §§ 2301-2312)

Unfortunately for Mr. Parrot, the Arizona Supreme Court found that Mr. Parrot was not a consumer under the Warranty Act because Mr. Parrot’s lessee status prevented him from qualifying as a consumer for purposes of applying the Warranty Act to his vehicle dispute. No qualifying sale to him was made and that meant the Warranty Act did not provide him relief. Upon disposing of the Warranty Act claims brought by Mr. Parrot, the court turned to the Arizona Lemon Law.

2. Arizona Motor Vehicle Warranties Act

As it did with its analysis under the Warranty Act, the Arizona Supreme Court decided against Mr. Parrot essentially because of his status as a lessee and not an owner. Although the court noted that the definition of consumer under the Lemon Law was different than under the Warranty Act, the court decided against Mr. Parrot on other grounds.

Under the Arizona Lemon Law, two remedies are available: (a) a consumer may return the vehicle to the manufacturer, or (b) the consumer may have the vehicle replaced. However, the court noted that these remedies only apply if the consumer is the owner of the vehicle. Mr. Parrot leased the vehicle and did not own it; therefore, the Lemon Law provided him no relief.

B. Johnson v. Earnhardt’s Gilbert Dodge (full text of case available at http://www.wilcoxlegal.com)

One month after the Parrot case, above, the Arizona Supreme Court ruled on another case involving the Magnuson-Moss Warranty Act, DaimlerChrysler and an allegedly malfunctioning automobile. However, in this case, the car was purchased, not leased, as it was in Parrot. In addition, although the vehicle purchased was a Kia, Ms. Johnson purchased a service contract from DaimlerChrysler for the vehicle through the Chrysler dealership from which she bought the car. The Arizona Supreme Court reviewed the case after the trial court granted Earnhardt’s Motion for Summary Judgment and the Arizona Court of Appeals reversed the trial court in favor of Johnson. Two key issues were presented to the Arizona Supreme Court.

1. Service Contract

The Arizona Supreme Court examined the issue of whether Earnhardt had entered into a service contract with Ms. Johnson or if the service contract was only with DaimlerChrysler since they were the entity that provided the service contract.

The court found that the circumstances surrounding the service contract were ambiguous and that a grant of summary judgment was inappropriate on that basis. Some of the ambiguous facts included that Earnhardt, the dealer, had sold the contract and was to provide repair services under the contract as signed by the dealership. In addition, simply put, the language of the contract itself was confusing and conflicting as were the statements of the witnesses. For example, the language of the contract variously states that DaimlerChrysler is the responsible party but also that Earnhardt had responsibility under the contract, too, while Ms. Johnson stated in her affidavit that she was told it was a joint warranty agreement with the dealership and DaimlerChrysler being responsible. The dealership, on the other hand, denied it was a party to the service contract. The conflict facts meant that the case had to be remanded to the trial court to determine whether Earnhardt was a party to the service contract.

2. Magnuson-Moss Warranty Act (15 U.S.C. §§ 2301-2312)

After concluding that the evidence surrounding the service contract created a question of fact allowing that issue to survive summary judgment, the Arizona Supreme Court next turned to the issue of whether the service contract was a warranty as defined by the Warranty Act. Although the Arizona Court of Appeals concluded that the service contract was such a warranty, the Supreme Court disagreed reasoning that the separate consideration paid for the service contract means that the service contract cannot also be a written warranty under the definition contained within the Warranty Act.

Thus, the Arizona Supreme Court remanded the Johnson case back to the trial court for further proceedings consistent with its reasoning.

------------------------

*Attorney Carrie M. Wilcox is the sole shareholder of Wilcox Legal Group, P.C., a multi-dimensional law firm with offices in Arizona and California. She is a graduate of Arizona State College of Law where she was a Note and Comment Editor for the Arizona State University Law Journal and former intern for the Honorable Rudolph Gerber, Arizona Court of Appeals. Ms. Wilcox is admitted to practice in the Arizona state courts and federal district court. Ms. Wilcox practices in the areas of business formation and creditor rights/debt collection. She also has wide-ranging experience in civil litigation, including employment law, family law, personal injury and business representation.

Ms. Wilcox is a member of the Association of Trial Lawyers of America (ATLA), the Maricopa County Bar Associations, State Bar of Arizona, Arizona Women Lawyers and American Bar Association.

Ms. Wilcox is also a former instructor at the Arizona Paralegal Training Institute, where she lectured on various subjects including business formation and litigation, employment law and dissolution of marriage. She has also co-chaired seminars for other attorneys on divorce procedure on behalf of the Lorman Institute.

APPENDIX

1. Arizona Statutes

A.R.S. §44-1261. Definitions; exemptions

A. In this article, unless the context otherwise requires:

1. "Consumer" means the purchaser, other than for purposes of resale, of a motor vehicle, any person to whom the motor vehicle is transferred during the duration of an express warranty applicable to the motor vehicle or any other person entitled by the terms of the warranty to enforce the obligations of the warranty.

2. "Motor vehicle" means a self-propelled vehicle designated primarily for the transportation of persons or property over the public highways.

3. "Used motor vehicle" means a motor vehicle that has been sold, bargained, exchanged or given away or the title to which has been transferred from the person who first acquired the vehicle from the manufacturer, importer or dealer or agent of the manufacturer or importer and that has been placed in bona fide consumer use.

4. "Used motor vehicle dealer" means a person or business that sells or offers for sale a used motor vehicle after selling or offering for sale four or more used motor vehicles in the previous twelve months but does not include a bank or financial institution, an insurance company, a business selling a used motor vehicle to an employee of that business, a lessor selling a leased vehicle by or to the lessee of that vehicle or to an employee of the lessee of that vehicle or a person who buys, sells, exchanges or offers or attempts to negotiate a sale of or exchange an interest in a classic car as defined in section 28-2483 or a historic vehicle as defined in section 28-2484.

B. If the motor vehicle is a motor home, the provisions of this article shall apply to the self-propelled vehicle and chassis but not to those portions of the vehicle designed, used or maintained primarily as a mobile dwelling, office or commercial space.

C. The provisions of this article do not apply to a sale of a motor vehicle to a purchaser for the purpose of resale for profit or to a motor vehicle with a declared gross weight over ten thousand pounds or that is sold at a public auction.

A.R.S. §44-1262. New motor vehicle; repair during express warranty or two years or twenty-four thousand miles

A. If a new motor vehicle does not conform to all applicable express warranties:

1. A consumer shall report the nonconformity to the manufacturer, its agent or its authorized dealer or issuer of a warranty during the shorter of the following:

(a) The term of the express warranty.

(b) The period of two years or twenty-four thousand miles following the date of original delivery of the motor vehicle to the consumer, whichever is earlier.

2. The manufacturer, its agent or its authorized dealer or the issuer of a warranty shall make those repairs that are necessary to conform the motor vehicle to such express warranties, even if the repairs are made after the expiration of the term or two year period or twenty-four thousand mile limit.

B. This section does not limit in any way the remedies available to a consumer under a new motor vehicle warranty that extends beyond the limits prescribed in this section.

A.R.S. §44-1263. Inability to conform motor vehicle to express warranty; replacement of vehicle or refund of monies; affirmative defenses; tax refund

A. If the manufacturer, its agents or its authorized dealers are unable to conform the motor vehicle to any applicable express warranty by repairing or correcting any defect or condition which substantially impairs the use and value of the motor vehicle to the consumer after a reasonable number of attempts, the manufacturer shall replace the motor vehicle with a new motor vehicle or accept return of the motor vehicle from the consumer and refund to the consumer the full purchase price, including all collateral charges, less a reasonable allowance for the consumer's use of the vehicle. The manufacturer shall make refunds to the consumer and lienholder, if any, as their interests appear. A reasonable allowance for use is that amount directly attributable to use by the consumer before his first written report of the nonconformity to the manufacturer, agent or dealer and during any subsequent period when the vehicle is not out of service by reason of repair.

B. It is an affirmative defense to any claim under this article that either:

1. An alleged nonconformity does not substantially impair the use and market value of the motor vehicle.

2. A nonconformity is the result of abuse, neglect or unauthorized modifications or alterations of the motor vehicle.

C. In the case of taxes paid pursuant to title 42, chapter 5, if the manufacturer:

1. Accepts return of a motor vehicle from a consumer without replacing the motor vehicle, the manufacturer shall refund the amount of tax attributed to the sale of the vehicle to that consumer.

2. Replaces a motor vehicle with a new motor vehicle of lesser value, the manufacturer shall refund the difference between the original amount of tax attributed to the sale of that vehicle and the amount of tax attributed to the sale of the replacement vehicle, excluding the value of the motor vehicle being replaced.

3. Replaces a motor vehicle with a new motor vehicle of greater value, the manufacturer shall calculate the gross proceeds of sales pursuant to section 42-5001, paragraph 6.

D. Pursuant to section 42-1118, subsection F, the manufacturer may apply to the department of revenue for a refund for the amount of tax that the manufacturer properly refunds to the consumer.

A.R.S. §44-1264. Reasonable number of attempts to conform motor vehicle to express warranty; presumption

A. It is presumed that a reasonable number of attempts have been undertaken to conform a motor vehicle to the applicable express warranties if either:

1. The same nonconformity has been subject to repair four or more times by the manufacturer or its agents or authorized dealers during the shorter of the express warranty term or the period of two years or twenty-four thousand miles following the date of original delivery of the motor vehicle to the consumer, whichever is earlier, but the nonconformity continues to exist.

2. The motor vehicle is out of service by reason of repair for a cumulative total of thirty or more calendar days during the shorter of the express warranty term or the two year period or twenty-four thousand miles, whichever is earlier.

B. The term of an express warranty, the two year period and the thirty day period are extended by any period of time during which repair services are not available to the consumer because of any war, invasion, strike, fire, flood or other natural disaster.

C. The presumption prescribed in this section does not apply against a manufacturer unless the manufacturer has received prior direct written notification from or on behalf of the consumer of the alleged defect and has had an opportunity to cure the alleged defect.

A.R.S. §44-1265. Nonlimitation of rights; refund or replacement not required if certain procedures not followed; attorney fees

A. If a manufacturer has established or participates in an informal dispute settlement procedure which complies in all respects with 16 code of federal regulations part 703, section 44-1263 relating to refunds or replacement does not apply to any consumer who has not first resorted to such a procedure.

B. A consumer shall begin an action under this article within six months following the earlier of expiration of the express warranty term or two years or twenty-four thousand miles following the date of original delivery of the motor vehicle to the consumer, whichever is earlier. If a consumer prevails in an action under this article, the court shall award the consumer reasonable costs and attorney fees.

A.R.S. §44-1266. Notice to dealers and prospective purchasers

A. A manufacturer who has been ordered by judgment or decree to replace or repurchase or who has replaced or repurchased a motor vehicle pursuant to this article or the repair or replace laws of another state shall, before offering the motor vehicle for resale, attach to the motor vehicle written notification indicating the motor vehicle has been replaced or repurchased. A consumer has a cause of action against any person who removes the written notification from the motor vehicle, except as provided in subsection B of this section.

B. A motor vehicle dealer, broker, wholesale motor vehicle dealer or wholesale motor vehicle auction dealer as defined in section 28-4301 who offers for sale a motor vehicle that has been replaced or repurchased pursuant to this article or the repair or replace laws of another state shall provide the purchaser with the manufacturer's written notification indicating that the motor vehicle has been replaced or repurchased before completion of the sale.

C. It shall constitute an affirmative defense in an action brought pursuant to subsection A of this section against a motor vehicle dealer or an agent of a motor vehicle dealer that the notification described in subsection A of this section was removed by someone other than the dealer or agent without the knowledge of the dealer or agent.

A.R.S. §44-1267. Used motor vehicles; title; implied warranty of merchantability disclaimer; waiver; burden of proof; remedies

A. Before the seller attempts to sell a used motor vehicle the seller shall possess the title to the used motor vehicle and the title shall be in the seller's name.

B. Except as provided in subsection I of this section and in addition to the requirements of section 28-4412, a used motor vehicle dealer shall not exclude, modify or disclaim the implied warranty of merchantability prescribed in section 47-2314 or limit the remedies for a breach of that warranty, except as otherwise provided in this section, before midnight of the fifteenth calendar day after delivery of a used motor vehicle or until a used motor vehicle is driven five hundred miles after delivery, whichever is earlier. In calculating time under this subsection, a day on which the warranty is breached is excluded and all subsequent days in which the motor vehicle fails to conform with the implied warranty of merchantability are also excluded. In calculating distance under this subsection, the miles driven to obtain or in connection with the repair, servicing or testing of the motor vehicle that fails to conform with the implied warranty of merchantability are excluded. An attempt to exclude, modify or disclaim the implied warranty of merchantability or to limit the remedies for a breach of that warranty, except as otherwise provided in this section, in violation of this subsection renders a purchase agreement voidable at the option of the purchaser.

C. For the purposes of this section, the implied warranty of merchantability is met if the motor vehicle functions in a safe condition as provided in title 28, chapter 3, article 16 and is substantially free of any defect that significantly limits the use of the motor vehicle for the ordinary purpose of transportation on any public highway. The implied warranty of merchantability expires at midnight of the fifteenth calendar day after delivery of a used motor vehicle or when a used motor vehicle has been driven five hundred miles after delivery, whichever is earlier. In calculating time under this subsection, a day on which the warranty is breached is excluded and all subsequent days in which the motor vehicle fails to conform with the implied warranty of merchantability are also excluded. In calculating distance under this subsection, the miles driven to obtain or in connection with the repair, servicing or testing of the motor vehicle that fails to conform with the implied warranty of merchantability are excluded.

D. The implied warranty of merchantability described in this section does not extend to damage that occurs after the sale of the motor vehicle and that is the result of any abuse, misuse, neglect, failure to perform regular maintenance or to maintain adequate oil, coolant or other required fluid or lubricant or off road use, racing or towing.

E. If the implied warranty of merchantability described in this section is breached, the purchaser shall give reasonable notice to the seller. Before the purchaser exercises any other remedies under title 47, chapter 2, the seller shall have a reasonable opportunity to repair the vehicle. The purchaser shall pay one-half of the cost of the first two repairs necessary to bring the vehicle in compliance with the warranty. The purchaser's payments are limited to a maximum payment of twenty-five dollars for each repair.

2. Magnuson-Moss Warranty Act (15 U.S.C. 15 U.S.C. §§ 2301-2312)

§ 2301. Definitions

For the purposes of this chapter:

(1) The term “consumer product” means any tangible personal property which is distributed in commerce and which is normally used for personal, family, or household purposes (including any such property intended to be attached to or installed in any real property without regard to whether it is so attached or installed).

(2) The term “Commission” means the Federal Trade Commission.

(3) The term “consumer” means a buyer (other than for purposes of resale) of any consumer product, any person to whom such product is transferred during the duration of an implied or written warranty (or service contract) applicable to the product, and any other person who is entitled by the terms of such warranty (or service contract) or under applicable State law to enforce against the warrantor (or service contractor) the obligations of the warranty (or service contract).

(4) The term “supplier” means any person engaged in the business of making a consumer product directly or indirectly available to consumers.

(5) The term “warrantor” means any supplier or other person who gives or offers to give a written warranty or who is or may be obligated under an implied warranty.

(6) The term “written warranty” means—

(A) any written affirmation of fact or written promise made in connection with the sale of a consumer product by a supplier to a buyer which relates to the nature of the material or workmanship and affirms or promises that such material or workmanship is defect free or will meet a specified level of performance over a specified period of time, or

(B) any undertaking in writing in connection with the sale by a supplier of a consumer product to refund, repair, replace, or take other remedial action with respect to such product in the event that such product fails to meet the specifications set forth in the undertaking,

which written affirmation, promise, or undertaking becomes part of the basis of the bargain between a supplier and a buyer for purposes other than resale of such product.

(7) The term “implied warranty” means an implied warranty arising under State law (as modified by sections 2308 and 2304 (a) of this title) in connection with the sale by a supplier of a consumer product.

(8) The term “service contract” means a contract in writing to perform, over a fixed period of time or for a specified duration, services relating to the maintenance or repair (or both) of a consumer product.

(9) The term “reasonable and necessary maintenance” consists of those operations

(A) which the consumer reasonably can be expected to perform or have performed and

(B) which are necessary to keep any consumer product performing its intended function and operating at a reasonable level of performance.

(10) The term “remedy” means whichever of the following actions the warrantor elects:

(A) repair,

(B) replacement, or

except that the warrantor may not elect refund unless (i) the warrantor is unable to provide replacement and repair is not commercially practicable or cannot be timely made, or (ii) the consumer is willing to accept such refund.

(11) The term “replacement” means furnishing a new consumer product which is identical or reasonably equivalent to the warranted consumer product.

(12) The term “refund” means refunding the actual purchase price (less reasonable depreciation based on actual use where permitted by rules of the Commission).

(13) The term “distributed in commerce” means sold in commerce, introduced or delivered for introduction into commerce, or held for sale or distribution after introduction into commerce.

(14) The term “commerce” means trade, traffic, commerce, or transportation—

(A) between a place in a State and any place outside thereof, or

(B) which affects trade, traffic, commerce, or transportation described in subparagraph (A).

(15) The term “State” means a State, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, the Canal Zone, or American Samoa. The term “State law” includes a law of the United States applicable only to the District of Columbia or only to a territory or possession of the United States; and the term “Federal law” excludes any State law.

§ 2302. Rules governing contents of warranties

(a) Full and conspicuous disclosure of terms and conditions; additional requirements for contents

In order to improve the adequacy of information available to consumers, prevent deception, and improve competition in the marketing of consumer products, any warrantor warranting a consumer product to a consumer by means of a written warranty shall, to the extent required by rules of the Commission, fully and conspicuously disclose in simple and readily understood language the terms and conditions of such warranty. Such rules may require inclusion in the written warranty of any of the following items among others:

(1) The clear identification of the names and addresses of the warrantors.

(2) The identity of the party or parties to whom the warranty is extended.

(3) The products or parts covered.

(4) A statement of what the warrantor will do in the event of a defect, malfunction, or failure to conform with such written warranty—at whose expense—and for what period of time.

(5) A statement of what the consumer must do and expenses he must bear.

(6) Exceptions and exclusions from the terms of the warranty.

(7) The step-by-step procedure which the consumer should take in order to obtain performance of any obligation under the warranty, including the identification of any person or class of persons authorized to perform the obligations set forth in the warranty.

(8) Information respecting the availability of any informal dispute settlement procedure offered by the warrantor and a recital, where the warranty so provides, that the purchaser may be required to resort to such procedure before pursuing any legal remedies in the courts.

(9) A brief, general description of the legal remedies available to the consumer.

(10) The time at which the warrantor will perform any obligations under the warranty.

(11) The period of time within which, after notice of a defect, malfunction, or failure to conform with the warranty, the warrantor will perform any obligations under the warranty.

(12) The characteristics or properties of the products, or parts thereof, that are not covered by the warranty.

(13) The elements of the warranty in words or phrases which would not mislead a reasonable, average consumer as to the nature or scope of the warranty.

(b) Availability of terms to consumer; manner and form for presentation and display of information; duration; extension of period for written warranty or service contract

(1)

(A) The Commission shall prescribe rules requiring that the terms of any written warranty on a consumer product be made available to the consumer (or prospective consumer) prior to the sale of the product to him.

(B) The Commission may prescribe rules for determining the manner and form in which information with respect to any written warranty of a consumer product shall be clearly and conspicuously presented or displayed so as not to mislead the reasonable, average consumer, when such information is contained in advertising, labeling, point-of-sale material, or other representations in writing.

(2) Nothing in this chapter (other than paragraph (3) of this subsection) shall be deemed to authorize the Commission to prescribe the duration of written warranties given or to require that a consumer product or any of its components be warranted.

(3) The Commission may prescribe rules for extending the period of time a written warranty or service contract is in effect to correspond with any period of time in excess of a reasonable period (not less than 10 days) during which the consumer is deprived of the use of such consumer product by reason of failure of the product to conform with the written warranty or by reason of the failure of the warrantor (or service contractor) to carry out such warranty (or service contract) within the period specified in the warranty (or service contract).

No warrantor of a consumer product may condition his written or implied warranty of such product on the consumer’s using, in connection with such product, any article or service (other than article or service provided without charge under the terms of the warranty) which is identified by brand, trade, or corporate name; except that the prohibition of this subsection may be waived by the Commission if—

(1) the warrantor satisfies the Commission that the warranted product will function properly only if the article or service so identified is used in connection with the warranted product, and

(2) the Commission finds that such a waiver is in the public interest.

The Commission shall identify in the Federal Register, and permit public comment on, all applications for waiver of the prohibition of this subsection, and shall publish in the Federal Register its disposition of any such application, including the reasons therefor.

(d) Incorporation by reference of detailed substantive warranty provisions

The Commission may by rule devise detailed substantive warranty provisions which warrantors may incorporate by reference in their warranties.

(e) Applicability to consumer products costing more than $5

The provisions of this section apply only to warranties which pertain to consumer products actually costing the consumer more than $5.

§ 2303. Designation of written warranties

(a) Full (statement of duration) or limited warranty

Any warrantor warranting a consumer product by means of a written warranty shall clearly and conspicuously designate such warranty in the following manner, unless exempted from doing so by the Commission pursuant to subsection (c) of this section:

(1) If the written warranty meets the Federal minimum standards for warranty set forth in section 2304 of this title, then it shall be conspicuously designated a “full (statement of duration) warranty”.

(2) If the written warranty does not meet the Federal minimum standards for warranty set forth in section 2304 of this title, then it shall be conspicuously designated a “limited warranty”.

(b) Applicability of requirements, standards, etc., to representations or statements of customer satisfaction

This section and sections 2302 and 2304 of this title shall not apply to statements or representations which are similar to expressions of general policy concerning customer satisfaction and which are not subject to any specific limitations.

In addition to exercising the authority pertaining to disclosure granted in section 2302 of this title, the Commission may by rule determine when a written warranty does not have to be designated either “full (statement of duration)” or “limited” in accordance with this section.

(d) Applicability to consumer products costing more than $10 and not designated as full warranties

The provisions of subsections (a) and (c) of this section apply only to warranties which pertain to consumer products actually costing the consumer more than $10 and which are not designated “full (statement of duration) warranties”.

§ 2304. Federal minimum standards for warranties

(a) Remedies under written warranty; duration of implied warranty; exclusion or limitation on consequential damages for breach of written or implied warranty; election of refund or replacement

In order for a warrantor warranting a consumer product by means of a written warranty to meet the Federal minimum standards for warranty—

(1) such warrantor must as a minimum remedy such consumer product within a reasonable time and without charge, in the case of a defect, malfunction, or failure to conform with such written warranty;

(2) notwithstanding section 2308 (b) of this title, such warrantor may not impose any limitation on the duration of any implied warranty on the product;

(3) such warrantor may not exclude or limit consequential damages for breach of any written or implied warranty on such product, unless such exclusion or limitation conspicuously appears on the face of the warranty; and

(4) if the product (or a component part thereof) contains a defect or malfunction after a reasonable number of attempts by the warrantor to remedy defects or malfunctions in such product, such warrantor must permit the consumer to elect either a refund for, or replacement without charge of, such product or part (as the case may be). The Commission may by rule specify for purposes of this paragraph, what constitutes a reasonable number of attempts to remedy particular kinds of defects or malfunctions under different circumstances. If the warrantor replaces a component part of a consumer product, such replacement shall include installing the part in the product without charge.

(b) Duties and conditions imposed on consumer by warrantor

(1) In fulfilling the duties under subsection (a) of this section respecting a written warranty, the warrantor shall not impose any duty other than notification upon any consumer as a condition of securing remedy of any consumer product which malfunctions, is defective, or does not conform to the written warranty, unless the warrantor has demonstrated in a rulemaking proceeding, or can demonstrate in an administrative or judicial enforcement proceeding (including private enforcement), or in an informal dispute settlement proceeding, that such a duty is reasonable.

(2) Notwithstanding paragraph (1), a warrantor may require, as a condition to replacement of, or refund for, any consumer product under subsection (a) of this section, that such consumer product shall be made available to the warrantor free and clear of liens and other encumbrances, except as otherwise provided by rule or order of the Commission in cases in which such a requirement would not be practicable.

(3) The Commission may, by rule define in detail the duties set forth in subsection (a) of this section and the applicability of such duties to warrantors of different categories of consumer products with “full (statement of duration)” warranties.

(4) The duties under subsection (a) of this section extend from the warrantor to each person who is a consumer with respect to the consumer product.

The performance of the duties under subsection (a) of this section shall not be required of the warrantor if he can show that the defect, malfunction, or failure of any warranted consumer product to conform with a written warranty, was caused by damage (not resulting from defect or malfunction) while in the possession of the consumer, or unreasonable use (including failure to provide reasonable and necessary maintenance).

(d) Remedy without charge

For purposes of this section and of section 2302 (c) of this title, the term “without charge” means that the warrantor may not assess the consumer for any costs the warrantor or his representatives incur in connection with the required remedy of a warranted consumer product. An obligation under subsection (a)(1)(A) of this section to remedy without charge does not necessarily require the warrantor to compensate the consumer for incidental expenses; however, if any incidental expenses are incurred because the remedy is not made within a reasonable time or because the warrantor imposed an unreasonable duty upon the consumer as a condition of securing remedy, then the consumer shall be entitled to recover reasonable incidental expenses which are so incurred in any action against the warrantor.

(e) Incorporation of standards to products designated with full warranty for purposes of judicial actions

If a supplier designates a warranty applicable to a consumer product as a “full (statement of duration)” warranty, then the warranty on such product shall, for purposes of any action under section 2310 (d) of this title or under any State law, be deemed to incorporate at least the minimum requirements of this section and rules prescribed under this section.

§ 2305. Full and limited warranting of a consumer product

Nothing in this chapter shall prohibit the selling of a consumer product which has both full and limited warranties if such warranties are clearly and conspicuously differentiated.

§ 2306. Service contracts; rules for full, clear and conspicuous disclosure of terms and conditions; addition to or in lieu of written warranty

(a) The Commission may prescribe by rule the manner and form in which the terms and conditions of service contracts shall be fully, clearly, and conspicuously disclosed.

(b) Nothing in this chapter shall be construed to prevent a supplier or warrantor from entering into a service contract with the consumer in addition to or in lieu of a written warranty if such contract fully, clearly, and conspicuously discloses its terms and conditions in simple and readily understood language.

§ 2307. Designation of representatives by warrantor to perform duties under written or implied warranty

Nothing in this chapter shall be construed to prevent any warrantor from designating representatives to perform duties under the written or implied warranty: Provided, That such warrantor shall make reasonable arrangements for compensation of such designated representatives, but no such designation shall relieve the warrantor of his direct responsibilities to the consumer or make the representative a cowarrantor.

§ 2308. Implied warranties

(a) Restrictions on disclaimers or modifications

No supplier may disclaim or modify (except as provided in subsection (b) of this section) any implied warranty to a consumer with respect to such consumer product if

(1) such supplier makes any written warranty to the consumer with respect to such consumer Product, or

(2) at the time of sale, or within 90 days thereafter, such supplier enters into a service contract with the consumer which applies to such consumer product.

(b) Limitation on duration

For purposes of this chapter (other than section 2304 (a)(2) of this title), implied warranties may be limited in duration to the duration of a written warranty of reasonable duration, if such limitation is conscionable and is set forth in clear and unmistakable language and prominently displayed on the face of the warranty.

A disclaimer, modification, or limitation made in violation of this section shall be ineffective for purposes of this chapter and State law.

§ 2309. Procedures applicable to promulgation of rules by Commission

(a) Oral presentation

Any rule prescribed under this chapter shall be prescribed in accordance with section 553 of title 5; except that the Commission shall give interested persons an opportunity for oral presentations of data, views, and arguments, in addition to written submissions. A transcript shall be kept of any oral presentation. Any such rule shall be subject to judicial review under section 57a (e) of this title in the same manner as rules prescribed under section 57a (a)(1)(B) of this title, except that section 57a (e)(3)(B) of this title shall not apply.

(b) Warranties and warranty practices involved in sale of used motor vehicles

The Commission shall initiate within one year after January 4, 1975, a rulemaking proceeding dealing with warranties and warranty practices in connection with the sale of used motor vehicles; and, to the extent necessary to supplement the protections offered the consumer by this chapter, shall prescribe rules dealing with such warranties and practices. In prescribing rules under this subsection, the Commission may exercise any authority it may have under this chapter, or other law, and in addition it may require disclosure that a used motor vehicle is sold without any warranty and specify the form and content of such disclosure.

§ 2310. Remedies in consumer disputes

(a) Informal dispute settlement procedures; establishment; rules setting forth minimum requirements; effect of compliance by warrantor; review of informal procedures or implementation by Commission; application to existing informal procedures

(1) Congress hereby declares it to be its policy to encourage warrantors to establish procedures whereby consumer disputes are fairly and expeditiously settled through informal dispute settlement mechanisms.

(2) The Commission shall prescribe rules setting forth minimum requirements for any informal dispute settlement procedure which is incorporated into the terms of a written warranty to which any provision of this chapter applies. Such rules shall provide for participation in such procedure by independent or governmental entities.

(3) One or more warrantors may establish an informal dispute settlement procedure which meets the requirements of the Commission’s rules under paragraph (2). If—

(A) a warrantor establishes such a procedure,

(B) such procedure, and its implementation, meets the requirements of such rules, and

(C) he incorporates in a written warranty a requirement that the consumer resort to such procedure before pursuing any legal remedy under this section respecting such warranty,

then

(i) the consumer may not commence a civil action (other than a class action) under subsection (d) of this section unless he initially resorts to such procedure; and

(ii) a class of consumers may not proceed in a class action under subsection (d) of this section except to the extent the court determines necessary to establish the representative capacity of the named plaintiffs, unless the named plaintiffs (upon notifying the defendant that they are named plaintiffs in a class action with respect to a warranty obligation) initially resort to such procedure. In the case of such a class action which is brought in a district court of the United States, the representative capacity of the named plaintiffs shall be established in the application of rule 23 of the Federal Rules of Civil Procedure. In any civil action arising out of a warranty obligation and relating to a matter considered in such a procedure, any decision in such procedure shall be admissible in evidence.

(4) The Commission on its own initiative may, or upon written complaint filed by any interested person shall, review the bona fide operation of any dispute settlement procedure resort to which is stated in a written warranty to be a prerequisite to pursuing a legal remedy under this section. If the Commission finds that such procedure or its implementation fails to comply with the requirements of the rules under paragraph (2), the Commission may take appropriate remedial action under any authority it may have under this chapter or any other provision of law.

(5) Until rules under paragraph (2) take effect, this subsection shall not affect the validity of any informal dispute settlement procedure respecting consumer warranties, but in any action under subsection (d) of this section, the court may invalidate any such procedure if it finds that such procedure is unfair.

(b) Prohibited acts

It shall be a violation of section 45 (a)(1) of this title for any person to fail to comply with any requirement imposed on such person by this chapter (or a rule thereunder) or to violate any prohibition contained in this chapter (or a rule thereunder).

(c) Injunction proceedings by Attorney General or Commission for deceptive warranty, noncompliance with requirements, or violating prohibitions; procedures; definitions

(1) The district courts of the United States shall have jurisdiction of any action brought by the Attorney General (in his capacity as such), or by the Commission by any of its attorneys designated by it for such purpose, to restrain

(A) any warrantor from making a deceptive warranty with respect to a consumer product, or

(B) any person from failing to comply with any requirement imposed on such person by or pursuant to this chapter or from violating any prohibition contained in this chapter. Upon proper showing that, weighing the equities and considering the Commission’s or Attorney General’s likelihood of ultimate success, such action would be in the public interest and after notice to the defendant, a temporary restraining order or preliminary injunction may be granted without bond. In the case of an action brought by the Commission, if a complaint under section 45 of this title is not filed within such period (not exceeding 10 days) as may be specified by the court after the issuance of the temporary restraining order or preliminary injunction, the order or injunction shall be dissolved by the court and be of no further force and effect. Any suit shall be brought in the district in which such person resides or transacts business. Whenever it appears to the court that the ends of justice require that other persons should be parties in the action, the court may cause them to be summoned whether or not they reside in the district in which the court is held, and to that end process may be served in any district.

(2) For the purposes of this subsection, the term “deceptive warranty” means

(A) a written warranty which

(i) contains an affirmation, promise, description, or representation which is either false or fraudulent, or which, in light of all of the circumstances, would mislead a reasonable individual exercising due care; or

(ii) fails to contain information which is necessary in light of all of the circumstances, to make the warranty not misleading to a reasonable individual exercising due care; or

(B) a written warranty created by the use of such terms as “guaranty” or “warranty”, if the terms and conditions of such warranty so limit its scope and application as to deceive a reasonable individual.

(d) Civil action by consumer for damages, etc.; jurisdiction; recovery of costs and expenses; cognizable claims

(1) Subject to subsections (a)(3) and (e) of this section, a consumer who is damaged by the failure of a supplier, warrantor, or service contractor to comply with any obligation under this chapter, or under a written warranty, implied warranty, or service contract, may bring suit for damages and other legal and equitable relief—

(A) in any court of competent jurisdiction in any State or the District of Columbia; or

(B) in an appropriate district court of the United States, subject to paragraph (3) of this subsection.

(2) If a consumer finally prevails in any action brought under paragraph (1) of this subsection, he may be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of cost and expenses (including attorneys’ fees based on actual time expended) determined by the court to have been reasonably incurred by the plaintiff for or in connection with the commencement and prosecution of such action, unless the court in its discretion shall determine that such an award of attorneys’ fees would be inappropriate.

(3) No claim shall be cognizable in a suit brought under paragraph (1)(B) of this subsection—

(A) if the amount in controversy of any individual claim is less than the sum or value of $25;

(B) if the amount in controversy is less than the sum or value of $50,000 (exclusive of interests and costs) computed on the basis of all claims to be determined in this suit; or

(e) Class actions; conditions; procedures applicable

No action (other than a class action or an action respecting a warranty to which subsection (a)(3) of this section applies) may be brought under subsection (d) of this section for failure to comply with any obligation under any written or implied warranty or service contract, and a class of consumers may not proceed in a class action under such subsection with respect to such a failure except to the extent the court determines necessary to establish the representative capacity of the named plaintiffs, unless the person obligated under the warranty or service contract is afforded a reasonable opportunity to cure such failure to comply. In the case of such a class action (other than a class action respecting a warranty to which subsection (a)(3) of this section applies) brought under subsection (d) of this section for breach of any written or implied warranty or service contract, such reasonable opportunity will be afforded by the named plaintiffs and they shall at that time notify the defendant that they are acting on behalf of the class. In the case of such a class action which is brought in a district court of the United States, the representative capacity of the named plaintiffs shall be established in the application of rule 23 of the Federal Rules of Civil Procedure.

(f) Warrantors subject to enforcement of remedies

For purposes of this section, only the warrantor actually making a written affirmation of fact, promise, or undertaking shall be deemed to have created a written warranty, and any rights arising thereunder may be enforced under this section only against such warrantor and no other person.

§ 2311. Applicability to other laws

(a) Federal Trade Commission Act and Federal Seed Act

(1) Nothing contained in this chapter shall be construed to repeal, invalidate, or supersede the Federal Trade Commission Act [15 U.S.C. 41 et seq.] or any statute defined therein as an Antitrust Act.

(2) Nothing in this chapter shall be construed to repeal, invalidate, or supersede the Federal Seed Act [7 U.S.C. 1551 et seq.] and nothing in this chapter shall apply to seed for planting.

(b) Rights, remedies, and liabilities

(1) Nothing in this chapter shall invalidate or restrict any right or remedy of any consumer under State law or any other Federal law.

(2) Nothing in this chapter (other than sections 2308 and 2304 (a)(2) and (4) of this title) shall

(A) affect the liability of, or impose liability on, any person for personal injury, or

(B) supersede any provision of State law regarding consequential damages for injury to the person or other injury.

(1) Except as provided in subsection (b) of this section and in paragraph (2) of this subsection, a State requirement—

(A) which relates to labeling or disclosure with respect to written warranties or performance thereunder;

(B) which is within the scope of an applicable requirement of sections 2302, 2303, and 2304 of this title (and rules implementing such sections), and

shall not be applicable to written warranties complying with such sections (or rules thereunder).

(2) If, upon application of an appropriate State agency, the Commission determines (pursuant to rules issued in accordance with section 2309 of this title) that any requirement of such State covering any transaction to which this chapter applies

(A) affords protection to consumers greater than the requirements of this chapter and

(B) does not unduly burden interstate commerce, then such State requirement shall be applicable (notwithstanding the provisions of paragraph (1) of this subsection) to the extent specified in such determination for so long as the State administers and enforces effectively any such greater requirement.

(d) Other Federal warranty laws

This chapter (other than section 2302 (c) of this title) shall be inapplicable to any written warranty the making or content of which is otherwise governed by Federal law. If only a portion of a written warranty is so governed by Federal law, the remaining portion shall be subject to this chapter.

§ 2312. Effective dates

(a) Effective date of chapter

Except as provided in subsection (b) of this section, this chapter shall take effect 6 months after January 4, 1975, but shall not apply to consumer products manufactured prior to such date.

(b) Effective date of section 2302 (a)

Section 2302 (a) of this title shall take effect 6 months after the final publication of rules respecting such section; except that the Commission, for good cause shown, may postpone the applicability of such sections until one year after such final publication in order to permit any designated classes of suppliers to bring their written warranties into compliance with rules promulgated pursuant to this chapter.

The Commission shall promulgate rules for initial implementation of this chapter as soon as possible after January 4, 1975, but in no event later than one year after such date.
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Disclaimer: Providing the above information does not establish an attorney-client relationship. To create such a relationship, both the attorney and potential client must sign a written fee agreement. The information contained herein is meant only as general information and is not meant to be relied upon for the purpose of taking legal action. You should contact an attorney in person for further and specific information. Wilcox Legal Group, P.C. attorneys are licensed in Arizona and a limited number of other states.

Custody and Access Rights of Grandparent and Non-Biologically Related Persons in Arizona: An Analysis of Current Law

2006-06-30T10:26:00.000-07:00

Custody and access rights of grandparents and other non-parents is a hot button topic in the family courts. Following the U.S. Supreme Court's Troxel decision, Arizona courts are forced to reevaluate the legal role and rights of non-parents when it comes to custody and access to children. Attorney Carrie Wilcox analyzes the impact of recent decsions.

A. Overview

Recent decisions in both federal and state courts affect custody and access rights of persons who are not the biological parents of children but with whom they have developed relationships. Affected persons include grandparents, stepparents and others who may have acted in the place of parents (in loco parentis).

In Arizona, grandparents’ rights are codified in Arizona Revised Statute §25-409[i] while A.R.S. §25-415[ii] covers anyone who may have acted as a parent to a child. A.R.S. §25-415 could affect those grandparents who have actually raised a child and are seeking more than the visitation the grandparent rights statute provides. While the statutes themselves provide a starting point from which to assess the custody and access rights of any given person, appellate court interpretations of the statutes provide more insight. Most often, the appellate court analyzes statutes within a constitutional framework. While there have not been a tremendous number of cases decided that analyze the Arizona grandparent and in loco parentis cases, the few decisions that have been made are very important. The U.S. Supreme Court case of Troxel v. Granville remains the key controlling case on the non-parent issue and provides the backdrop against which non-parent cases are decided.

B. Troxel v. Granville: The U.S. Supreme Court Weighs In

The single most important case in recent years on the non-parent rights issue involves Jenifer Troxel, et vir v. Tommie Granville, 530 U.S. 57; 120 S. Ct. 2054; 147 L. Ed. 2d 49 (2000). The Troxel case originated in Washington state as a grandparent visitation dispute. In that case, the deceased biological father’s parents sought visitation under a Washington statute that allowed anyone to petition for visitation, whether biologically related or not. Although the biological mother agreed to visitation, she disputed the amount sought by the paternal grandparents and the dispute went before the Washington trial court. The trial court sided with the grandparents and the mother appealed through the Washington appellate system where the Washington Court of Appeals overturned the trial court’s visitation order and dismissed the grandparents’ visitation petition, a ruling affirmed by the Washington Supreme Court.

Following the Washington Supreme Court’s decision against them, the grandparents appealed to the U.S. Supreme Court where they found an unfriendly audience. The U.S. Supreme Court analyzed both the Washington statute and the particular factual circumstances surrounding Troxel, ultimately finding that the U.S. Constitution provided more protection for parental decision-making rights than the Washington statute and trial court provided. The Court upheld the dismissal of the grandparents’ visitation petition and the visitation awarded by the trial court was not allowed.

So, as one looks at the U.S. Supreme Court’s decision in Troxel, there are two key factors that the Court considered:

1. Fourteenth Amendment Due Process
The Constitutional issue was the key issue of the appeal to the U.S. Supreme Court. Ultimately, the Court concluded that the Washington visitation statute that allowed anyone to petition for visitation and for the Washington trial courts to award visitation in the best interests of children who may be subject of a petition was simply overbroad and impermissibly infringed on parents’ fundamental right to raise their children as they see fit.

2. Circumstances of the Case
The U.S. Supreme Court also reviewed the circumstances of the case; in other words the particular facts present in Troxel. For example, the mother in the case had actually offered visitation, just not to the extent sought by the grandparents. The Court concluded that the mother’s determination of what amounted to appropriate visitation was entitled to more weight than the trial court gave. In addition, there was no allegation that mother was an unfit parent, thus there was no apparent reason to second-guess the mother’s decisions.

In summary, the Troxel case at its simplest stands for the principle that courts are to provide a fit parent’s decisions special weight.

C. The Dodge Cases: Arizona’s Theory on Non-Parent Rights

Arizona’s best-known case on the rights of non-parents is Dodge v. Graville. This highly contested litigation resulted in four appellate reviews and even made its way to the U.S. Supreme Court. Importantly, the Dodge cases were occurring at or near the time Troxel v. Granville was progressing through the courts. It is important, therefore, to maintain clarity within the various cases and proceedings in Dodge and thus, they are herein referred to in the order in which they were decided at the various appellate court levels. Courts and lawyers refer to Dodge I and Dodge II to keep them straight; two official published opinions resulted from the litigation that, at the end of the day, left a number of questions regarding Arizona law unanswered.

1. Dodge I. (Kathryn Lucille Graville and Donald Graville, 195 Ariz. 119; 985 P.2d 604; 287 Ariz. Adv. Rep. 68 (Ariz. Ct. App. 1999)).

In this case, the mother of the children at issue was deceased and the maternal grandparents sought visitation. After the trial court awarded the grandparents the equivalent of nine days of annual visitation, the children’s father appealed on a number of bases.

On appeal, the father argued that the 14th Amendment to the U.S. Constitution provides parents a fundamental right to raise their children as they wish and that Arizona’s grandparent visitation statute interferes with that right. Although the Arizona Court of Appeals agreed with the father that parents do have the fundamental right to raise their children as they see fit, the court felt that the statute was written and applied in such a way that the intrusion upon parental rights was not unconstitutional.

The father also appealed the amount of time awarded to the grandparents. The court disposed of the father’s arguments by pointing out that the total amount of visitation time was relatively minor. The court did, however, agree with the father that the trial court’s orders that he encourage weekly telephone calls with the grandparents, consider using the grandparents as caregivers when possible and that he not discuss custody issues with the children went too far. Thus, those orders were stricken.

2. Dodge II. (Kathryn Lucille and Donald Graville v. Douglas Paul Dodge, 197 Ariz. 591; 5 P.3d 925; 322 Ariz. Adv. Rep. 15 (Ariz. Ct. App. 2000)).
In the continuing litigation regarding the Graville’s visitation, the grandparents sought to have the father found in contempt for not following the trial court’s original visitation orders. The Arizona Court of Appeals examined the issue of whether the trial court overstepped its authority by appointing a supervisor to monitor the visitation, determining that the addition of the supervisor was not an improper modification of the original order. However, this Court of Appeals decision occurred right before the U.S. Supreme Court decided Troxel. When the Arizona Supreme Court refused to review the case, the U.S. Supreme Court eventually vacated the Arizona Court of Appeals decision and sent the case back for review in light of the Troxel decision. See Jenifer Troxel, et vir v. Tommie Granville, 530 U.S. 57; 120 S. Ct. 2054; 147 L. Ed. 2d 49 (2000).

Upon receiving the case back with instructions from the U.S. Supreme Court to apply the Troxel holding, the Arizona Court of Appeals chose to make both sides unhappy. The court did away with the grandparents’ requested contempt ruling, essentially, and the father’s constitutional issues went unresolved. Thus, important issues are left unclarified.

D. Other Arizona Cases

To make the length of this article workable, not every pertinent Arizona or national case is included or mentioned, however, the following cases are briefly addressed to provide more information on the subject of grandparent and non-parent visitation rights in Arizona.

1. Jackson v. Tangreen, 199 Ariz. 306; 18 P.3d 100 (2000).

The facts of this case were slightly different than most of the grandparent cases. Here, the biological father had voluntarily terminated his rights following his divorce from the mother so that the mother’s new husband could adopt the child. Following the adoption, the biological father’s mother petitioned to continue her visitation rights she had attained following the divorce but before the proceedings related to the adoption.

The Court of Appeals ruled as follows:

a. Upholding the grandparent visitation statute as constitutional, and
b. Finding that the grandparent visitation statute does not unconstitutionally distinguish between two-parent adoptions and stepparent adoptions by permitting grandparent visitation when a stepparent adopts a child.

Note that the U.S. Supreme Court refused to review this case. 534 U.S. 953; 122 S. Ct. 351; (2001).

2. Riepe v. Riepe, 208 Ariz. 90; 91 P.3d 312 (2004).

The Riepe case involves a sad set of facts. The biological mother and father were divorced and eventually the father met, moved in with, and married the stepmother. The stepmother appears to have been very involved all aspects of the child’s life during the time she was with the father. In 2001, the father died in a traffic accident. Biological mother then denied visitation to the stepmother who petitioned for visitation under Arizona’s in loco parentis statute, A.R.S. §25-415. The trial court denied the stepmother’s petition for visitation and an appeal followed.

The Arizona Court of Appeals overturned the trial court, finding that the trial court improperly required the stepmother to show that her relationship with the child was equal or superior to that of the natural parents. The appellate decision also contains a lengthy dissent and response to the dissent that takes up most of the decision.

3. McGovern v. McGovern, 201 Ariz. 172; 33 P.3d 506 (2001).

In this case, the child at issue was born out of wedlock and the biological father’s parental rights were terminated. The mother and child lived with the mother’s parents for approximately four and one-half years commencing soon after the child’s birth and it appeared from the evidence presented that a significant bond developed between the child and the maternal grandparents. Mother eventually moved the child and herself out of her parents’ home and, as in the Troxel case, offered visitation to the grandparents that was less than the grandparents preferred, prompting the grandparents to file a petition for visitation.

Following the grandparents’ petition, a stipulated order was reached that provided the grandparents with visitation. Nevertheless, following the U.S. Supreme Court’s Troxel decision, the mother sought reconsideration and a declaratory judgment based on the Troxel ruling. The trial court then vacated the stipulated order for visitation and ordered that the mother would have complete discretion on all visitation matters. The grandparents then applied to the Arizona Court of Appeals for relief.

On appeal, the court noted similarities between the McGovern’s case and Troxel. For example, the mother’s fitness was not challenged and she had offered some visitation. The Court of Appeals agreed in part and disagreed in part with the trial court’s rulings. Specifically, the Court of Appeals agreed that the trial court properly vacated the stipulated visitation order but disagreed that the mother should have 100% discretion on visitation, finding that the mother’s offer of limited visitation was only one factor to consider. The Court of Appeals remanded the case so that the trial court could hold additional proceedings on the visitation issue.

E. Conclusion

The Troxel case is a landmark decision that has created waves of litigation in the states, even prompting a movement to have grandparent and in loco parentis statutes declared unconstitutional in many states. While Troxel has modified the way that Arizona trial and appellate courts view non-parent rights and how A.R.S. §§25-409 and 25-415 are interpreted, both statutes have withstood Constitutional challenges thus far and it appears that barring legislative action to the contrary, they are likely to remain in effect. Therefore, non-parents still enjoy certain rights in Arizona, although seemingly not to the extent that they did before the U.S. Supreme Court decided Troxel.

_______________

*Attorney Carrie M. Wilcox is the sole shareholder of Wilcox Legal Group, P.C., a multi-dimensional law firm with offices in Arizona and California. She is a graduate of Arizona State College of Law where she was a Note and Comment Editor for the Arizona State University Law Journal and former intern for the Honorable Rudolph Gerber, Arizona Court of Appeals. Ms. Wilcox is admitted to practice in the Arizona state courts and federal district court. Ms. Wilcox practices in the areas of business formation and creditor rights/debt collection. She also has wide-ranging experience in civil litigation, including employment law, family law, personal injury and business representation. Ms. Wilcox is a member of the Association of Trial Lawyers of America (ATLA),the Maricopa County Bar Associations, State Bar of Arizona, Arizona Women Lawyers and American Bar Association. Ms. Wilcox is also a former instructor at the Arizona Paralegal Training Institute, where she lectured on various subjects including business formation and litigation, employment law and dissolution of marriage. She has also co-chaired seminars for other attorneys on divorce procedure on behalf of the Lorman Institute.

___________

APPENDIX OF CASES

(full text of cases available at www.wilcoxlegal.com)

a. Jenifer Troxel, et vir v. Tommie Granville, 530 U.S. 57; 120 S. Ct. 2054; 147 L. Ed. 2d 49 (2000).

b. Kathryn Lucille Graville and Donald Graville, 195 Ariz. 119; 985 P.2d 604; 287 Ariz. Adv. Rep. 68 (Ariz. Ct. App. 1999)

c. Kathryn Lucille and Donald Graville v. Douglas Paul Dodge, 197 Ariz. 591; 5 P.3d 925; 322 Ariz. Adv. Rep. 15 (Ariz. Ct. App. 2000).

d. Jackson v. Tangreen, 199 Ariz. 306; 18 P.3d 100 (2000).

e. Riepe v. Riepe, 208 Ariz. 90; 91 P.3d 312 (2004).

f. McGovern v. McGovern, 201 Ariz. 172; 33 P.3d 506 (2001).

_____________

ENDNOTES

[i] 25-409. Visitation rights of grandparents and great-grandparents

A. The superior court may grant the grandparents of the child reasonable visitation rights to the child during the child's minority on a finding that the visitation rights would be in the best interests of the child and any of the following is true:
1. The marriage of the parents of the child has been dissolved for at least three months.
2. A parent of the child has been deceased or has been missing for at least three months. For the purposes of this paragraph, a parent is considered to be missing if the parent's location has not been determined and the parent has been reported as missing to a law enforcement agency.
3. The child was born out of wedlock.
B. The superior court may grant the great-grandparents of the child reasonable visitation rights on a finding that the great-grandparents would be entitled to such rights under subsection A if the great-grandparents were grandparents of the child.
C. In determining the child's best interests the court shall consider all relevant factors, including:
1. The historical relationship, if any, between the child and the person seeking visitation.
2. The motivation of the requesting party in seeking visitation.
3. The motivation of the person denying visitation.
4. The quantity of visitation time requested and the potential adverse impact that visitation will have on the child's customary activities.
5. If one or both of the child's parents are dead, the benefit in maintaining an extended family relationship.
D. If logistically possible and appropriate the court shall order visitation by a grandparent or great-grandparent to occur when the child is residing or spending time with the parent through whom the grandparent or great-grandparent claims a right of access to the child. If a parent is unable to have the child reside or spend time with that parent, the court shall order visitation by a grandparent or great-grandparent to occur when that parent would have had that opportunity.
E. A grandparent or great-grandparent seeking to obtain visitation rights under this section shall petition for these rights in the same action in which the parents had their marriage dissolved or in which the court determined paternity or maternity, or by a separate action in the county where the child resides if no action has been filed or the court entering the decree of dissolution or determination of paternity or maternity no longer has jurisdiction.
F. All visitation rights granted under this section automatically terminate if the child has been adopted or placed for adoption. If the child is removed from an adoptive placement, the court may reinstate the visitation rights. This subsection does not apply to the adoption of the child by the spouse of a natural parent if the natural parent remarries.

[ii] 25-415. Custody by nonparent; presumption; grounds; definitions

A. A child custody proceeding may also be commenced in the superior court by a person other than a legal parent by filing a verified petition, or by a petition supported by an affidavit, in the county in which the child is permanently resident or is found. The petition shall include detailed facts supporting the petitioner's right to file the petition. The petitioner shall provide notice as required by subsection E. Notice shall include a copy of the petition and any affidavits. The court shall summarily deny a petition unless it finds that the petitioner by the pleadings established that all of the following are true:
1. The person filing the petition stands in loco parentis to the child.
2. It would be significantly detrimental to the child to remain or be placed in the custody of either of the child's living legal parents who wish to retain or obtain custody.
3. A court of competent jurisdiction has not entered or approved an order concerning the child's custody within one year before the person filed a petition pursuant to this section, unless there is reason to believe the child's present environment may seriously endanger the child's physical, mental, moral or emotional health.
4. One of the following applies:
(a) One of the legal parents is deceased.
(b) The child's legal parents are not married to each other at the time the petition is filed.
(c) There is a pending proceeding for dissolution of marriage or for legal separation of the legal parents at the time the petition is filed.
B. If a person other than a child's legal parent is seeking custody there is a rebuttable presumption that it is in the child's best interest to award custody to a legal parent because of the physical, psychological and emotional needs of the child to be reared by the child's legal parent. To rebut this presumption that person must show by clear and convincing evidence that awarding custody to a legal parent is not in the child's best interests.
C. The superior court may grant a person who stands in loco parentis to a child, including grandparents and great-grandparents, who meet the requirements of section 25-409 reasonable visitation rights to the child on a finding that the visitation is in the child's best interests and that any of the following is true:
1. One of the legal parents is deceased or has been missing at least three months.
2. The child's legal parents are not married to each other at the time the petition is filed.
3. There is a pending proceeding for dissolution of marriage or for legal separation of the legal parents at the time the petition is filed.
D. A grandparent, a great-grandparent or a person who stands in loco parentis to a child may bring a proceeding for visitation rights with a child by filing a verified petition in the county in which the child is permanently resident or is found.
E. Notice of a custody or visitation proceeding filed pursuant to this section shall be served pursuant to the rules of civil procedure to all of the following:
1. The child's parents.
2. A person who has court ordered custody or visitation rights.
3. The child's guardian or guardian ad litem.
4. A person or agency that has physical custody of the child or that claims to have custody or visitation rights.
5. Any other person or agency that has previously appeared in the action.
F. A person shall file proceedings for custody or visitation under this chapter in the same action in which the legal parents had their marriage dissolved or any other proceeding in which a previous custody order has been entered regarding the child.
G. For the purposes of this chapter:
1. "In loco parentis" means a person who has been treated as a parent by the child and who has formed a meaningful parental relationship with the child for a substantial period of time.
2. "Legal parent" means a biological or adoptive parent whose parental rights have not been terminated.

The Wilcox Legal Group, P.C.
Carrie Wilcox
For the Firm

Phoenix office:
3030 N. Central Ave., Ste. 705
Phoenix, Arizona 85012
Ph: 602-631-9555
Fx: 602-631-4004

Goodyear office:
1616 N. Litchfield Rd., Ste. 240
Goodyear, Arizona 85338
Ph: 623-344-7880
Fx: 602-631-4004

Visit our website: www.wilcoxlegal.com

Disclaimer: Providing the above information does not establish an
attorney-client relationship. To create such a relationship, both the
attorney and potential client must sign a written fee agreement. The
information contained herein is meant only as general information and is not meant to be relied upon for the purpose of taking legal action. You should contact an attorney in person for further and specific information. Wilcox & Wilcox, P.C. attorneys are licensed in Arizona only except for personal injury attorney Robert N. Edwards, who is licensed in Arizona and Minnesota.

Identity Theft

2005-12-08T13:56:00.000-07:00

Paralegal Beth Rees at the firm prepared the following identity theft article for our client newsletter. I thought it could be of interest so I reprint it here.

Identity Theft

It’s beginning to look a lot like . . . well, like the winter holidays, with all the gift-giving and –receiving opportunities that abound. Gift lists grow ever-longer and more specific, and the giver’s thoughts turn to long hours and longer lines at the mall, fighting for this year’s version of the last Furby or Cabbage Patch Doll on the shelf. Wouldn’t it be easier to log onto the Web and shop in your jammies, humming along with your Christmas tapes? But what about identity theft? Could you unwittingly be handing over your life to some scammer?

It is possible—but not as likely as the hype may lead you to believe. In the report prepared for the Federal Trade Commission in 2003 by Synovate[1], approximately 4.6 percent of the population experienced some form of identity theft in 2002. In the same report, it was determined that in twenty-five percent of all identity thefts reported, the thief obtained the information through theft of a purse or wallet.

So your chances of experiencing any form of identity theft are one chance in twenty. And if you are one of the unlucky ones, you have a one in four chance of having been taken when someone lifted your wallet or purse.

How else does your information get captured? Do you shred your credit card statements, or do you just toss them in the garbage? If you leave them whole, that gives a thief your name, address, and account number. If you put them in a desk drawer, someone could remove them from that drawer. And do you know where the waiter goes with your credit card when he goes to swipe it? Are you sure he’s not making notes on a post-it, just in case he feels your tip is too small? There’s more to identity theft than the Internet.

What do you do when you realize that something’s gone wrong? For most people, the main concern is with misuse of an existing credit card account. With good reason too—according to Synovate’s 2003 report, misuse of an existing card accounts for over half the incidents of reported identity theft.

First and foremost, report the loss or theft of a credit card to the issuer immediately. This can limit your liability dramatically, often to a cap of $50.00 per card. Close any accounts you know were tampered with and open new accounts with new passwords. Don’t choose something obvious like a string of consecutive numbers, your mother’s maiden name, parts of your Social Security Number, or names of children or pets. Then file complaints with your local police and with the Federal Trade Commission. Finally, place a fraud alert on your credit report.

Speaking of credit reports, they are one of the best tools for making sure accounts are not being opened in your name without your knowledge. You are entitled to one free credit report every twelve months—just for asking. Peace of mind makes a nice holiday gift to yourself.

[1] Available at http://www.consumer.gov/idtheft/id_federal.htm

Wilcox & Wilcox, P.C.
Trent Wilcox
For the Firm

Phoenix office:
3030 N. Central Ave., Ste. 705
Phoenix, Arizona 85012
Ph: 602-631-9555
Fx: 602-631-4004

Goodyear office:
1616 N. Litchfield Rd., Ste. 240
Goodyear, Arizona 85338
Ph: 623-344-7880
Fx: 602-631-4004

Visit our website: www.wilcoxlegal.com

Disclaimer: Providing the above information does not establish an
attorney-client relationship. To create such a relationship, both the
attorney and potential client must sign a written fee agreement. The
information contained herein is meant only as general information and is not meant to be relied upon for the purpose of taking legal action. You should contact an attorney in person for further and specific information. Wilcox & Wilcox, P.C. attorneys are licensed in Arizona only except for personal injury attorney Robert N. Edwards, who is licensed in Arizona and Minnesota.

What If I Don't Like a Ruling on My Case?

2005-11-09T14:52:00.000-07:00

In most cases, neither side in a family law matter gets exactly and entirely what they want from a judge pursuant to a contested hearing or trial. Although all-out victories occur, there is a certain risk in going to court that a judge will not give either side what they want. But if you lose on an issue very important to you, what can you do?

First, evaluate whether or not the judge really ruled wrongly. If the judge did nothing wrong and just believed the other side's case had more merit, there may not be any recourse. Child custody decisions are often made this way because the cases often boil down to "He said, she said," situations. The judge has to make a decision and does, even though one (or both) sides may not like it. However, if you believe the judge abused his discretion, made a mistake in interpreting the law or some other error, you may be able to do something to change the outcome.

Second, be cognizant that there are various deadlines involved in trying to change/correct a judge's ruling. The deadlines vary depending on the type of corrective action one contemplates. Appeals, for example, require that a Notice of Appeal be filed within thirty (30) days of the final order from which an appeal is sought.

Third, evaluate the different legal routes available. For example, there are special action appeals, regular appeals, motions for reconsideration, motions for new trial, motions for relief from judgment and motions to set aside. Perhaps in another post, I will deal with each of these in more detail but for now, parties should be aware that there are alternative methods of trying to undo a court's ruling, different methods work best for certain situations and stages of the proceedings, and there are always various timeframes/deadlines to consider. If you are going to take action, consult an attorney immediately to make sure you act in time!

Wilcox & Wilcox, P.C.
Trent Wilcox
For the Firm

Phoenix office:
3030 N. Central Ave., Ste. 705
Phoenix, Arizona 85012
Ph: 602-631-9555
Fx: 602-631-4004

Goodyear office:
1616 N. Litchfield Rd., Ste. 240
Goodyear, Arizona 85338
Ph: 623-344-7880
Fx: 602-631-4004

Visit our website: www.wilcoxlegal.com

Disclaimer: Providing the above information does not establish an
attorney-client relationship. To create such a relationship, both the
attorney and potential client must sign a written fee agreement. The
information contained herein is meant only as general information and is not meant to be relied upon for the purpose of taking legal action. You should contact an attorney in person for further and specific information. Wilcox & Wilcox, P.C. attorneys are licensed in Arizona only except for personal injury attorney Robert N. Edwards, who is licensed in Arizona and Minnesota.

2005-10-11T22:31:00.000-07:00

An Arizona family law case arose awhile back where two first cousins were married in Virginia but moved to Arizona sometime before ARS § 25-112 was amended in 1996. While legal at the time of marriage in Virginia when it occurred, a dispute arose as to whether the marriage should be considered valid under Arizona law. Current Arizona law would not consider the the marriage valid but the legal question involved timing.

Arizona law is applied when determining validity of a marriage from a state outside Arizona. Since Arizona only enacted its amendments to ARS § 25-112 in1996, marriages contracted in another state prior to enactment of that statute's amendments are not subject to the amendments. In other words, as long as a marriage is valid under the version of the statute prior to the 1996 amendments, Arizona cannot dispute the validity of a marriage even if the issue only comes up after the 1996 amendments. This ruling is from the Arizona domestic relations appellate case Cook v. Cook, 1 CA-CV 03-0727, January 13, 2005.

Wilcox & Wilcox, P.C.
Trent Wilcox
For the Firm

Phoenix office:
3030 N. Central Ave., Ste. 705
Phoenix, Arizona 85012
Ph: 602-631-9555
Fx: 602-631-4004

Goodyear office:
1616 N. Litchfield Rd., Ste. 240
Goodyear, Arizona 85338
Ph: 623-344-7880
Fx: 602-631-4004

Visit our website: www.wilcoxlegal.com

Disclaimer: Providing the above information does not establish an
attorney-client relationship. To create such a relationship, both the
attorney and potential client must sign a written fee agreement. The
information contained herein is meant only as general information and is not meant to be relied upon for the purpose of taking legal action. You should contact an attorney in person for further and specific information. Wilcox & Wilcox, P.C. attorneys are licensed in Arizona only except for personal injury attorney Robert N. Edwards, who is licensed in Arizona and Minnesota.

Legal Separation vs. Divorce

2005-10-10T23:26:00.000-07:00

Quite a few people seem to believe that a legal separation is a shortcut to ending a marriage in Arizona. Although it is possible that a legal separation could involve slightly, and I mean slightly, less paperwork initially, the practical truth is that legal separations in Arizona can take just as much time, effort and resources as a divorce. That's because they involve pretty much identical issues as divorces --property division, debt division, child custody, visitation, child support, etc. Legal separations can end up going to a full-on trial, not to mention temporary evidentiary hearings prior to trial. Thus, if you're looking for a shortcut, a legal separation may not be the answer.

Besides not being a shortcut to getting rid of a spouse, legal separations end with the parties still being officially married. Although everything has been divided up, the parties remain married, meaning that neither may legally remarry. My experience with legal separations is that one party or both almost always later decide that they want a full divorce with more paperwork that must be submitted to the court to convert the legal separation to a divorce, resulting in more time and expense.

Wilcox & Wilcox, P.C.
Trent Wilcox
For the Firm

Phoenix office:
3030 N. Central Ave., Ste. 705
Phoenix, Arizona 85012
Ph: 602-631-9555
Fx: 602-631-4004

Goodyear office:
1616 N. Litchfield Rd., Ste. 240
Goodyear, Arizona 85338
Ph: 623-344-7880
Fx: 602-631-4004

Visit our website: www.wilcoxlegal.com

Disclaimer: Providing the above information does not establish an
attorney-client relationship. To create such a relationship, both the
attorney and potential client must sign a written fee agreement. The
information contained herein is meant only as general information and is not meant to be relied upon for the purpose of taking legal action. You should contact an attorney in person for further and specific information. Wilcox & Wilcox, P.C. attorneys are licensed in Arizona only except for personal injury attorney Robert N. Edwards, who is licensed in Arizona and Minnesota.

Application of Payments on Child Support Arrearages

2005-09-27T22:39:00.000-07:00

When an obligor parent (the parent paying child support) makes payments toward a child support arrearage in Arizona, the court should first apply the payment to interest. This means that the child support arrearage itself will be paid only after the accrued interest is paid. So the Arizona Court of Appeals held on January 11, 2005 in Alley v. Stevens , 1 CA-CV 04-0097.

Wilcox & Wilcox, P.C. Trent Wilcox
For the Firm

Phoenix office:
3030 N. Central Ave., Ste. 705
Phoenix, Arizona 85012
Ph: 602-631-9555
Fx: 602-631-4004

Goodyear office:
1616 N. Litchfield Rd., Ste. 240
Goodyear, Arizona 85338
Ph: 623-344-7880
Fx: 602-631-4004

Visit our website: http://www.wilcoxlegal.com

Disclaimer: Providing the above information does not establish an
attorney-client relationship. To create such a relationship, both the
attorney and potential client must sign a written fee agreement. The
information contained herein is meant only as general information and is not meant to be relied upon for the purpose of taking legal action. You should contact an attorney in person for further and specific information. Wilcox & Wilcox, P.C. attorneys are licensed in Arizona only except for personal injury attorney Robert N. Edwards, who is licensed in Arizona and Minnesota.

What Legal Rights Do Step-Parents Have in Arizona Regarding Step-Children?

2005-09-07T14:49:00.000-07:00

Answer:

Step-parents in Arizona may have legal child custody or visitation rights under certain circumstances. Essentially, Arizona law allows step-parents who have acted in place of a parent to petition the court for child custody and parental access (visitation) rights. In loco parentis is the term adopted in the Arizona statute to describe this situation. Presumably, the step-parent would request child custody or visitation as part of a divorce or legal separation proceeding in the Arizona family court.

Acting in place of a parent is a high burden to meet and really requires more than just a relationship between a step-parent and step-child. In Arizona, a step-parent appears to have two routes to take in maintaining a relationship with a step-child. One such route would be to request visitation rights via an appropriate petition and the other route would be to actually request custody by alleging, among other things, that it would be significantly detrimental for either of the child's legal parents to have custody.

In Arizona, in loco parentis rights are covered by Arizona Revised Statute §25-415, reprinted below:

A.R.S. §25-415. Custody by nonparent; presumption; grounds; definitions

A. A child custody proceeding may also be commenced in the superior court by a person other than a legal parent by filing a verified petition, or by a petition supported by an affidavit, in the county in which the child is permanently resident or is found. The petition shall include detailed facts supporting the petitioner's right to file the petition. The petitioner shall provide notice as required by subsection E. Notice shall include a copy of the petition and any affidavits. The court shall summarily deny a petition unless it finds that the petitioner by the pleadings established that all of the following are true:
1. The person filing the petition stands in loco parentis to the child.
2. It would be significantly detrimental to the child to remain or be placed in the custody of either of the child's living legal parents who wish to retain or obtain custody.
3. A court of competent jurisdiction has not entered or approved an order concerning the child's custody within one year before the person filed a petition pursuant to this section, unless there is reason to believe the child's present environment may seriously endanger the child's physical, mental, moral or emotional health.
4. One of the following applies:
(a) One of the legal parents is deceased.
(b) The child's legal parents are not married to each other at the time the petition is filed.
(c) There is a pending proceeding for dissolution of marriage or for legal separation of the legal parents at the time the petition is filed.
B. If a person other than a child's legal parent is seeking custody there is a rebuttable presumption that it is in the child's best interest to award custody to a legal parent because of the physical, psychological and emotional needs of the child to be reared by the child's legal parent. To rebut this presumption that person must show by clear and convincing evidence that awarding custody to a legal parent is not in the child's best interests.
C. The superior court may grant a person who stands in loco parentis to a child, including grandparents and great-grandparents, who meet the requirements of section 25-409 reasonable visitation rights to the child on a finding that the visitation is in the child's best interests and that any of the following is true:
1. One of the legal parents is deceased or has been missing at least three months.
2. The child's legal parents are not married to each other at the time the petition is filed.
3. There is a pending proceeding for dissolution of marriage or for legal separation of the legal parents at the time the petition is filed.
D. A grandparent, a great-grandparent or a person who stands in loco parentis to a child may bring a proceeding for visitation rights with a child by filing a verified petition in the county in which the child is permanently resident or is found.
E. Notice of a custody or visitation proceeding filed pursuant to this section shall be served pursuant to the rules of civil procedure to all of the following:
1. The child's parents.
2. A person who has court ordered custody or visitation rights.
3. The child's guardian or guardian ad litem.
4. A person or agency that has physical custody of the child or that claims to have custody or visitation rights.
5. Any other person or agency that has previously appeared in the action.
F. A person shall file proceedings for custody or visitation under this chapter in the same action in which the legal parents had their marriage dissolved or any other proceeding in which a previous custody order has been entered regarding the child.
G. For the purposes of this chapter:
1. "In loco parentis" means a person who has been treated as a parent by the child and who has formed a meaningful parental relationship with the child for a substantial period of time.
2. "Legal parent" means a biological or adoptive parent whose parental rights have not been terminated.

Disclaimer: Providing the above information does not establish an
attorney-client relationship. To create such a relationship, both the
attorney and potential client must sign a written fee agreement. The
information contained herein is meant only as general information and is not meant to be relied upon for the purpose of taking legal action. You should contact an attorney in person for further and specific information. Wilcox & Wilcox, P.C. attorneys are licensed in Arizona only except for personal injury attorney Robert N. Edwards, who is licensed in Arizona and Minnesota.

2005-08-04T15:34:00.000-07:00

Readers:

I received permission to reprint the junk fax article that follows. I hope you find it interesting. Keep in mind that this is not my area of practice, although I have several people who work for me, including one attorney, that spend time on junk fax litigation. I recommend that you not rely on the information in the article for purposes of taking action. Instead, use it as a jumping off point when you consult an attorney prior to taking any action relating to junk faxes. I do, however, advise people to not send out unsolicited faxes because significant liability can follow.

Trent

Just the Facts About Junk Faxes: Why You Should Care About Revisions to U.S.C. Title 47 §227

The boys on Capitol Hill are at it again, picking over work they’ve previously produced, making little fussy tweaks to a bunch of regulations. Big yawn. Turn the page. It doesn’t affect your life, right?

Wrong.

This time, your congressperson is working on the side of the spammers, the solicitors who call you at dinner, who fill your e-mail box with promises of bigger body parts and instant wealth, who run your fax machine out of paper and toner while you wait for your client to send you a vital piece of information.

Title 47, section 227 of the United States Code sets forth restrictions on the use of telephone equipment, especially as it relates to unsolicited phone and fax advertisements. If you’ve sent spam faxes to Encompass West, you are familiar with the provision
under b(1)(C) which says you cannot use a telephone facsimile machine (or computer, or other device) to send an unsolicited advertisement to a telephone facsimile machine. Period. No exceptions.

The amendment proposed in the "Junk Fax Prevention Act of 2005" sets up an exemption for the spammers. They can’t send an unsolicited advertisement to your fax machine unless (A) they have an established business relationship with you and (B) they let you know that you have a way out--by sending a fax back to them (1) at the fax number they list on the opt-out, (2) identifying your fax number that you want removed, and (3) never ever opt-in again.

Now, this doesn’t sound so very terrible on its face. Let’s take a little closer look at this.

You run across a good offer from a reputable company, and when a representative asks if they can add you to their mailing list to keep in touch with other good stuff you might find interesting, you agree. You’ve just opted in to receive junk mail from these people. They now have an established business relationship with you. Welcome to Jack Junkfaxer’s spam list.

Now you get a fax from Jack, and you write across the cover sheet to remove this fax number from his list, and fax it right back to him. Only took a minute, right? Here’s the bad news--Jack has 1,000 other clients he sends faxes for, not just the one he hooked you up with. That’s 1,000 minutes to get off his spam list--or 16 hours and forty minutes of your time. It took you two full work days to remove
just that one number. And Jack is small potatoes.

Worse yet, how much does it take to form an established business relationship? One could argue that if you or someone from your business handed out your fax number, that’s enough to construe an invitation to fax. So you go to a convention, network like crazy, and you hand Jack Junkfaxer your card. Voila, you’re now back on his list.

Exemptions for unsolicited phone calls makes sense—there’s the “Do Not Call” list to opt out permanently, there’s no time required other than hanging up when you discover it’s just a solicitor, and there’s no added expense incurred. Faxes cost.

Faxes cost paper, toner, and time. Time to sort the wheat from the chaff, and under the amendments, time to write the note, and then time to fax it back to the spammer. This makes no sense. Call (or better yet, fax) your congressperson today and tell them to vote no on the Junk Fax Prevention Act of 2005. If it ain’t broke, don’t fix it.

Beth Rees

(reprinted with permission)

Contact the author at: bethrees@encompasswest.com

The UCCJEA and Child Custody Jurisdiction

2005-07-18T14:25:00.000-07:00

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) is what is known as a "uniform law." Uniform laws are generally created by a committee representing a national contingency of interested persons, legislators, professionals and others who believe that standard laws among the states would be a benefit on certain issues or in certain areas of the law, commerce, etc. Uniform laws are not federal laws but rely instead on the individual state legislatures to approve and make them the law of each state. The UCCJEA is one such law that has been passed in all U.S. states, including Arizona, where the Arizona family courts routinely addressed UCCJEA-covered issues. Arizona has codified the UCCJEA in Arizona Revised Statutes §§25-1031 et seq.

The UCCJEA must be read in its totality, rather than piecemeal, just because that's the way it was written. As well, there is significant case law in the various state and appellate courts, some of which can vary from court to court but much of which will influence the reading of the UCCJEA. Normally, the single most significant factor in determining jurisdiction over child custody determinations under the UCCJEA is the six (6) month requirement. While Arizona Revised Statute §25-1031 speaks of initial jurisdiction, A.R.S. §25-1033 states that another court can modify an order from another state if the child has resided in the new state for six (6) months. That's how jurisdiction (and the child's home state) most commonly transfers, simply by length of residence in the new state. There has been some discussion over the years over what effect one parent remaining in the child's original home state has on later litigation. From my experience, the six month provision controls in most instances. The comments to the original UCCJA (the precursor to the UCCJEA) acknowledge this issue but did not really clear it up.

In a case where one parent unlawfully or inappropriately removes the child to another state and then seeks a custody or other order related to the child in the new state, the new state, in most such instances, should decline jurisdiction by reason of the wrongful conduct. See A.R.S. §25-1038. In fact, the original UCCJA was designed specifically to prevent the wrongful taking of children. Prior to the UCCJA, parents could take children from state to state until they finally were granted custody to the exclusion of the other parent's rights. Even today, the important timeframes in jurisdiction cases mean that parents should not delay in addressing the issues.

Another important UCCJEA provision is the prohibition against maintaining simultaneous proceedings. In other words, the UCCJEA addresses what happens when one parent files an action in the courts of one state while another proceeding, dealing with the same child/ren, has been filed in a different state.

The UCCJEA also includes a provision regarding temporary emergency jurisdiction. This provision helps protect abandoned or endangered children. Thus, even though one state court does not have proper jurisdiction, that state court may still make an order that will protect a child until proper jurisdiction is determined and the proper court issues a new order in place of the emergency temporary order.

There is much more to the UCCJEA and depending on a given state, the interpretation of the law can vary. Consult an attorney for information that may relate to your specific legal situation.

Wilcox & Wilcox, P.C.
Trent Wilcox
For the Firm

Phoenix office:
3030 N. Central Ave., Ste. 705
Phoenix, Arizona 85012
Ph: 602-631-9555
Fx: 602-631-4004

Goodyear office:
1616 N. Litchfield Rd., Ste. 240
Goodyear, Arizona 85338
Ph: 623-344-7880
Fx: 602-631-4004

Visit our website: www.wilcoxlegal.com

Disclaimer: Providing the above information does not establish an
attorney-client relationship. To create such a relationship, both the
attorney and potential client must sign a written fee agreement. The
information contained herein is meant only as general information and is not meant to be relied upon for the purpose of taking legal action. You should contact an attorney in person for further and specific information. Wilcox & Wilcox, P.C. attorneys are licensed in Arizona only except for personal injury attorney Robert N. Edwards, who is licensed in Arizona and Minnesota.

The New Bankruptcy Legislation

2005-07-04T08:55:00.000-07:00

Divorces, credit ratings and changed standards of living all seem to go together. One common issue in many divorces is bankruptcy. One party wants to file, both want to, one party is assigned to pay a debt but later discharges it in bankruptcy to the chagrin of the other party who now has a black mark on his/her credit report. Attorney Carrie Wilcox wrote the following article about the new bankruptyc legislation recently signed into law by President Bush with an effective date in October, 2005. Please consult an attorney for specific information that may affect your case.

Bankruptcy Abuse Prevention and Consumer Protection Act of 2005:
How Could It Affect You or Your Business?

By Carrie M. Wilcox, Esq.

Signed by President Bush on April 20, 2005, the “Bankruptcy Abuse Prevention and Consumer Protection Act of 2005” is generally effective as to bankruptcy cases filed on or after October 17, 2005. The reforms signif-icantly impact both individual and small business owners ability to receive bankruptcy relief via more stringent limits on bankruptcy options. Small businesses are affected because nearly 20 percent of the individual bankruptcies filed in 2004 were actually owners of small, unincorporated businesses.

Highlighted below are the major areas impacted; the list, however, is not exhaustive.

Means Test – Section 707(b)(2).
Chapter 7 bankruptcy filings with primarily consumer debts are subject to dismissal upon a finding of abuse. Abuse can be found in one of two ways: first, through an un-rebutted presumption of abuse under the new means test; and second, on general grounds, including bad faith. The means test permits any party in interest, the Court or the Trustee, to seek dismissal of the case for abuse if the debtor’s income exceeds a defined state median. A debtor’s income is the “current monthly income” multiplied by 12. “Current monthly income” is a debtor’s average monthly income over a six-month period. Thus, the means test provides that a debtor may not be eligible for discharge when his/her income exceeds the state median, regardless of the amount of debt.

Extended Time Between Discharges – Section 727(a)(8).
Debtors filing a Chapter 7 bankruptcy are ineligible for discharge if the debtor filed a Chapter 7 or 11 within eight (8) years of the pending bankruptcy.

Production of additional documents – Section 521.
The reform legislation imposes a number of new production requirements on debtors. At least seven (7) days prior to the meeting of creditors, Chapters 7 and 11 debtors must provide to the trustee and any creditor making a timely request, a copy of the federal income tax return for the period for which the return was most recently due and for which the debtor filed a return. Failure of the debtor to produce the return requires dismissal of the case.

Chapters 7, 11 and 13 debtors must also, on request of a party in interest or the judge, file with the Court at the same time filed with the IRS, copies of any federal income tax return for a tax year ending while the bankruptcy case is pending and for any tax year that ended during the three (3) years before the case was filed. If a Chapter 7 or 13 debtor fails to file all the information required under Section 521 within 45 days after filing, the case is dismissed on the 46th day.

Credit Counseling – Section 109(h).
This is perhaps one of the most radical reforms in the legislation. Individuals are ineligible for relief under any chapter of the Bankruptcy Code unless, within 180 days of the bankruptcy filing, they received “an individual or group briefing” from a non-profit budget and credit counseling agency approved by the United States trus-tee or bankruptcy administrator under the standards set forth in section 111. Among the standards is a requirement that the agency provide its services without regard to the debtor’s ability to pay any fee. The service may be provided personally, telephonically or on the Internet and must outline opportunities for credit counseling and assist in performing a related budget analysis.

Automatic Stay – Section 362(c)(3).
If a Chapter 7, 11 or 13 bankruptcy is filed within one year of the dismissal of an earlier case, the automatic stay in the second case terminates 30 days after the filing.

Household Goods definition limited – Section 522(f)(4).
The new definition limits electronic equipment to which a non-possessory, non-purchase money security interest can be avoided to one (1) radio, one (1) television, one (1) VCR and one (1) personal computer with related equipment. The new section also excludes works of art not created by the debtor, jewelry worth more than $500 (except wedding rings), and motor vehicles.

Nondischargeability for fraud in the use of credit cards – Section 523(a)(2)(C).
Previously, a presumption of fraud existed when a debtor charged over $1,225 for luxury goods within sixty (60) days of filing for bankruptcy. That amount is now reduced to $500, and the time limit is expanded to ninety (90) days. Credit card cash advances, previously carrying the same limitations as purchases of luxury goods, now have the harsher $500, ninety (90) day limitation.

The stricter bankruptcy filing requirements diminish the threat of a bankruptcy discharge for those collecting individual and/or business debts. If an individual or small business owner owes you money, this means a greater potential for recovery on overdue accounts. Wilcox & Wilcox, P.C.’s experienced collection department is now accepting new accounts on a contingent fee basis. Contact Darlene Lewis, Wilcox & Wilcox, P.C. Lead Collections Paralegal, for more information.

Copyright © Wilcox & Wilcox, P.C.
All rights reserved.

Disclaimer: Providing the above information does not establish an
attorney-client relationship. To create such a relationship, both the
attorney and potential client must sign a written fee agreement. The
information contained herein is meant only as general information and is not meant to be relied upon for the purpose of taking legal action. You should contact an attorney in person for further and specific information. Wilcox & Wilcox, P.C. attorneys are licensed in Arizona only except for personal injury attorney Robert N. Edwards, who is licensed in Arizona and Minnesota.

What is the Difference between a Simplified Modification and other Modifications?

2005-06-23T11:48:00.000-07:00

Answer:

Simplified Modifications are used only for child support modifications in Arizona. The Arizona family court's Simplified Modification forms are used exclusively for this legal proceeding, whereas when a modification of child custody, spousal maintenance or other family law issue, you may either use a court-approved form or prepare your own legal pleading. You cannot modify anything other than child support using the Simplified Modification.

The Simplified Modification is called "simplified" because if the other party does not object after service of process, the requested child support modification is approved by the Arizona family court and becomes the new court-ordered child support amount. No hearing is necessary. The Simplified Modification can be used to modify an Arizona child support amount up or down.

Keep in mind that if the non-filing party objects to the requested change in the Simplified Modification packet, the court will set a hearing before the assigned family court judge to determine the merits of the requested child support change.

Wilcox & Wilcox, P.C.
Trent Wilcox
For the Firm

Phoenix office:
3030 N. Central Ave., Ste. 705
Phoenix, Arizona 85012
Ph: 602-631-9555
Fx: 602-631-4004

Goodyear office:
1616 N. Litchfield Rd., Ste. 240
Goodyear, Arizona 85338
Ph: 623-344-7880
Fx: 602-631-4004

Visit our website: www.wilcoxlegal.com

Disclaimer: Providing the above information does not establish an
attorney-client relationship. To create such a relationship, both the
attorney and potential client must sign a written fee agreement. The
information contained herein is meant only as general information and is not meant to be relied upon for the purpose of taking legal action. You should contact an attorney in person for further and specific information. Wilcox & Wilcox, P.C. attorneys are licensed in Arizona only except for personal injury attorney Robert N. Edwards, who is licensed in Arizona and Minnesota.

Do the Arizona Child Support Guidelines Use Net or Gross Income? Why?

2005-06-10T11:25:00.000-07:00

Answer: The Arizona Child Support Guidelines use gross income. It allows the least amount of tinkering with income and simplifies the determination of actual income. Many clients tell me that it is not fair to use gross incomes in determining child support but the result would be the same for gross and net anyway. Why? Because the Arizona Family Courts are seeking an amount of child support to provide for children in a given manner. If the Arizona Family Court used net incomes instead of gross incomes in child support calculations, they just have to up the percentage to get the target amount.

Keep in mind that under the income shares child support model and Arizona public policy generally, the amount of child support is determined not by just a simple percentage of income as many states used to do and some still do, but rather by taking sociologicial, economic and legal data and trying to determine what the average family spends on a child at each income level. In other words, how much do people bringing in $5000 per month spend on each child, how much do parents bringing in $20,000 per month spend on their child, etc., etc. It seems probable, and the data bears it out, that parents with higher combined incomes spend more money on their children than parents with lower incomes and the Arizona Child Support Guidelines are in large part based on this presumption. See my posts below for other Arizona child support information.

Wilcox & Wilcox, P.C.
Trent Wilcox
For the Firm

Phoenix office:
3030 N. Central Ave., Ste. 705
Phoenix, Arizona 85012
Ph: 602-631-9555
Fx: 602-631-4004

Goodyear office:
1616 N. Litchfield Rd., Ste. 240
Goodyear, Arizona 85338
Ph: 623-344-7880
Fx: 602-631-4004

Visit our website: www.wilcoxlegal.com

Disclaimer: Providing the above information does not establish an attorney-client relationship. To create such a relationship, both the attorney and potential client must sign a written fee agreement. The information contained herein is meant only as general information and is not meant to be relied upon for the purpose of taking legal action. You should contact an attorney in person for further and specific information. Wilcox & Wilcox, P.C. attorneys are licensed in Arizona only except for personal injury attorney Robert N. Edwards, who is licensed in Arizona and Minnesota.

How Do Living Expenses of the Parties Factor into Child Support Calculations?

2005-06-10T10:51:00.000-07:00

Answer: Under Arizona family law, day-to-day living expenses really do not factor in at all in the Arizona family court's calculations. In other words, the Arizona Child Support Guidelines and Arizona Family Court system do not take into account whether a party to a divorce or paternity case has a high car or house payment, lives in an upscale neighborhood, likes to take his/her child to Vail on vacations or carries a great amount of debt. While the Arizona Family Court ignores those sorts of things, it will take into account certain specific categories of expenses such as health insurance, childcare expenses, extraordinary child-based expenses, certain education expenses and a 10% adjustment for children age 12 or older. In addition, court-ordered spousal maintenance, court-ordered child support and an adjustment for supporting other natural/adopted children are considered in determining each parent's income. Finally, the amount of time actually spent and/or ordered factors into Arizona child support calculations in a big way.

Wilcox & Wilcox, P.C.
Trent Wilcox
For the Firm

Phoenix office:
3030 N. Central Ave., Ste. 705
Phoenix, Arizona 85012
Ph: 602-631-9555
Fx: 602-631-4004

Goodyear office:
1616 N. Litchfield Rd., Ste. 240
Goodyear, Arizona 85338
Ph: 623-344-7880
Fx: 602-631-4004

Visit our website: www.wilcoxlegal.com

Disclaimer: Providing the above information does not establish an
attorney-client relationship. To create such a relationship, both the
attorney and potential client must sign a written fee agreement. The
information contained herein is meant only as general information and is not meant to be relied upon for the purpose of taking legal action. You should contact an attorney in person for further and specific information. Wilcox & Wilcox, P.C. attorneys are licensed in Arizona only except for personal injury attorney Robert N. Edwards, who is licensed in Arizona and Minnesota.

May Minors Marry in Arizona?

2005-06-04T07:40:00.000-07:00

Answer: Under certain circumstances, as dictated by Arizona law. Specifically, the relevant statute states as follows:

A.R.S. §25-102. Consent Required for Marriage of Minors.

A. Persons under eighteen years of age shall not marry without the consent of the parent or guardian having custody of such person. Persons under sixteen years of age shall not marry without the consent of the parent or guardian having custody of that person and the approval of any superior court judge in the state. When both parents are living the consent of either parent is sufficient. When the parents are living apart, the consent shall be given by the parent who has the custody of the minor.

B. Before authorizing the marriage of a person who is under sixteen years of age, the court: 1. Shall require both parties to the marriage to complete premarital counseling. The court may waive this requirement if the court determines that premarital counseling is not reasonably available. 2. Must find that the minor is entering into the marriage voluntarily. 3. Must find that the marriage is in the best interests of the minor under the circumstances. 4. May require that the minor continue to attend school. 5. May require any other condition that the court determines is reasonable under the circumstances.

C. A marriage shall not take place under this section if it is prohibited by the law relating to prohibited and void marriages.

Wilcox & Wilcox, P.C.
Trent Wilcox
For the Firm

Phoenix office:
3030 N. Central Ave., Ste. 705
Phoenix, Arizona 85012
Ph: 602-631-9555
Fx: 602-631-4004

Goodyear office:
1616 N. Litchfield Rd., Ste. 240
Goodyear, Arizona 85338
Ph: 623-344-7880
Fx: 602-631-4004

Visit our website: http://www.wilcoxlegal.com

Disclaimer: Providing the above information does not establish an attorney-client relationship. To create such a relationship, both the attorney and potential client must sign a written fee agreement. The information contained herein is meant only as general information and is not meant to be relied upon for the purpose of taking legal action. You should contact an attorney in person for further and specific information. Wilcox & Wilcox, P.C. attorneys are licensed in Arizona only except for personal injury attorney Robert N. Edwards, who is licensed in Arizona and Minnesota.

Common Law Marriages

2005-06-04T07:22:00.000-07:00

Common law marriages are those that occur in an unofficial manner but that may be recognized in certain situations and places. Common law marriages can occur only in certain U.S. states. There are likely other countries outside the U.S. that have common law marriages, too. Arizona has a specific statute relating to common law marriages:

Arizona Revised Statute §25-111 states as follows:

A. A marriage shall not be contracted by agreement without a marriage ceremony.
B. A marriage contracted within this state is not valid unless all of the following occur:
1. A license is issued as provided in this title.
2. The marriage is solemnized by a person authorized by law to solemnize marriages or by a person purporting to act in such capacity and believed in good faith by at least one of the parties to be so authorized.
3. The marriage is solemnized before the expiration of the marriage license.
C. The requirements of this section do not apply to the conversion of an existing marriage that is valid in this state to a covenant marriage that complies with the requirements of section 25-902.

As you will note above, the statute states that for a marriage entered into in Arizona, certain requirements must be met. Specifically, Arizona requires a ceremony, license and an authorized person to conduct the ceremony (or at least believed to be authorized). Thus, you cannot marry via the common law method in Arizona. However, if a couple was legally married under the common law in another state, Arizona will recognize that marriage.

Typical, but probably not universal, requirements for common law marriages in those U.S. states that recognize them may include:

1. The couple must hold selves out as married.
2. Continuous cohabitation by the couple.
3. The couple must meet all other requirements to marry in that state, for example:
a) No same sex marriages (a subject getting a lot of attention of late).
b) Age requirements must be met.
c) Neither party can be married to someone else.
d) No violations of a state's specific laws, such as those in Arizona Revised Statute §25-101.

To summarize:

1. No common law marriages can occur in Arizona.
2. If a person has a common law marriage in another state, Arizona may recognize it.
3. Evaluating the legitimacy of a purported common law marriage means looking at the law of the jurisdiction where the marriage occurred.

Wilcox & Wilcox, P.C.
Trent Wilcox
For the Firm

Phoenix office:
3030 N. Central Ave., Ste. 705
Phoenix, Arizona 85012
Ph: 602-631-9555
Fx: 602-631-4004

Goodyear office:
1616 N. Litchfield Rd., Ste. 240
Goodyear, Arizona 85338
Ph: 623-344-7880
Fx: 602-631-4004

Visit our website: www.wilcoxlegal.com

Disclaimer: Providing the above information does not establish an
attorney-client relationship. To create such a relationship, both the
attorney and potential client must sign a written fee agreement. The
information contained herein is meant only as general information and is not meant to be relied upon for the purpose of taking legal action. You should contact an attorney in person for further and specific information. Wilcox & Wilcox, P.C. attorneys are licensed in Arizona only except for personal injury attorney Robert N. Edwards, who is licensed in Arizona and Minnesota.

Arizona Passes Emancipation Statute for Minors

2005-05-18T11:52:00.000-07:00

It appears that Arizona finally has an emancipation of minors law. House Bill 2428 was transmitted to Governor Janet Napolitano on April 13, 2005 and signed by her five days later. A few highlights that I found interesting include:

1. A minor petitioning the court for emancipation cannot be a ward of the state or in the custody of any state agency.
2. The minor’s emancipation petition must be accompanied by at least one of the following:
(i) documentation that the minor has been living on the minor's own for at least three consecutive months.
(ii) a statement explaining why the minor believes the home of the minor's parent or legal guardian is not a healthy or safe environment.
(iii) a notarized statement that contains written consent to the emancipation and an explanation by the minor's parent or legal guardian.
3. The court may waive the initial filing fee for the petition, appoint a guardian ad litem for the petitioning minor, refer the parties to mediation, order Child Protective Services to investigate neglect, abuse or abandonment allegations.
4. An emancipated minor will then have much the same rights as an adult including the ability to enter into binding contracts and to sue/be sued in the courts.
5. Because the juvenile court is referenced, it appears that’s the Superior Court branch that will have jurisdiction over emancipation issues.

The text of the emancipation statutes follows below:

12-2451. Petition for emancipation order; requirements; notification; representation; waiver of filing fees
A. A MINOR WHO WISHES TO BE EMANCIPATED MAY FILE A PETITION FOR AN EMANCIPATION ORDER WITH THE CLERK OF THE COURT IN THE COUNTY IN WHICH THE MINOR RESIDES IF ALL OF THE FOLLOWING APPLY:
1. THE MINOR IS AT LEAST SIXTEEN YEARS OF AGE.
2. THE MINOR IS A RESIDENT OF THIS STATE.
3. THE MINOR IS FINANCIALLY SELF-SUFFICIENT.
4. THE MINOR ACKNOWLEDGES IN WRITING THAT THE MINOR HAS READ AND UNDERSTANDS INFORMATION THAT IS PROVIDED BY THE COURT AND THAT EXPLAINS THE RIGHTS AND OBLIGATIONS OF AN EMANCIPATED MINOR AND THE POTENTIAL RISKS AND CONSEQUENCES OF EMANCIPATION.
5. THE MINOR IS NOT A WARD OF THE COURT AND IS NOT IN THE CARE, CUSTODY AND CONTROL OF A STATE AGENCY.
B. A PETITION FILED PURSUANT TO THIS SECTION MUST CONTAIN THE FOLLOWING:
1. THE PETITIONER'S NAME, MAILING ADDRESS, SOCIAL SECURITY NUMBER AND DATE OF BIRTH.
2. THE NAME AND MAILING ADDRESS OF THE PETITIONER'S PARENT OR LEGAL GUARDIAN IF KNOWN.
3. SPECIFIC FACTS TO SUPPORT THE PETITION, INCLUDING:
(a) THE MINOR'S DEMONSTRATED ABILITY TO MANAGE THE MINOR'S FINANCIAL AFFAIRS INCLUDING PROOF OF EMPLOYMENT OR OTHER MEANS OF SUPPORT.
(b) THE MINOR'S DEMONSTRATED ABILITY TO MANAGE THE MINOR'S PERSONAL AND SOCIAL AFFAIRS, INCLUDING PROOF OF HOUSING.
(c) THE MINOR'S DEMONSTRATED ABILITY TO LIVE WHOLLY INDEPENDENT OF THE MINOR'S PARENT.
(d) THE MINOR'S DEMONSTRATED ABILITY AND COMMITMENT TO OBTAIN OR MAINTAIN EDUCATION, VOCATIONAL TRAINING OR EMPLOYMENT.
(e) HOW THE MINOR WILL OBTAIN OR MAINTAIN HEALTH CARE.
(f) ANY OTHER INFORMATION CONSIDERED NECESSARY TO SUPPORT THE PETITION.
(g) AT LEAST ONE OF THE FOLLOWING:
(i) DOCUMENTATION THAT THE MINOR HAS BEEN LIVING ON THE MINOR'S OWN FOR AT LEAST THREE CONSECUTIVE MONTHS.
(ii) A STATEMENT EXPLAINING WHY THE MINOR BELIEVES THE HOME OF THE MINOR'S PARENT OR LEGAL GUARDIAN IS NOT A HEALTHY OR SAFE ENVIRONMENT.
(iii) A NOTARIZED STATEMENT THAT CONTAINS WRITTEN CONSENT TO THE EMANCIPATION AND AN EXPLANATION BY THE MINOR'S PARENT OR LEGAL GUARDIAN.
C. THE COURT SHALL HOLD A HEARING ON THE PETITION WITHIN NINETY DAYS AFTER THE DATE OF ITS FILING AND SHALL NOTIFY THE PETITIONER AND THE PETITIONER'S PARENT OR LEGAL GUARDIAN OF THE DATE AND PLACE OF THE HEARING BY CERTIFIED MAIL AT LEAST SIXTY DAYS BEFORE THE HEARING DATE. FOR GOOD CAUSE SHOWN, THE COURT MAY CONTINUE THE INITIAL EMANCIPATION HEARING.
D. THE MINOR'S PARENT OR LEGAL GUARDIAN MAY FILE A WRITTEN RESPONSE OBJECTING TO THE EMANCIPATION WITHIN THIRTY DAYS OF SERVICE OF THE NOTICE OF THE HEARING.
E. THE MINOR MAY PARTICIPATE IN THE COURT PROCEEDINGS ON THE MINOR'S OWN BEHALF OR BE REPRESENTED BY AN ATTORNEY CHOSEN BY THE MINOR. IF THE COURT DETERMINES IT NECESSARY, THE COURT MAY APPOINT A GUARDIAN AD LITEM FOR THE PETITIONER.
F. THE COURT MAY REDUCE OR WAIVE THE FEE PRESCRIBED IN SECTION 12-284 FOR FILING A PETITION FOR EMANCIPATION OF A MINOR FOR FINANCIAL HARDSHIP.
12-2452. Additional court orders
A. BEFORE AN EMANCIPATION CASE PROCEEDS, THE COURT MAY STAY THE PROCEEDINGS AND:
1. REFER THE PARTIES TO MEDIATION.
2. IF THE COURT REASONABLY BELIEVES THAT THE PETITION CONTAINS AN ALLEGATION OF CHILD ABUSE OR NEGLECT, REQUIRE CHILD PROTECTIVE SERVICES TO INVESTIGATE THE ALLEGATION AND MAKE A WRITTEN REPORT OF THE INVESTIGATION TO THE COURT.
B. IF THE MINOR'S PARENT OR LEGAL GUARDIAN OBJECTS TO THE PETITION FOR EMANCIPATION, THE COURT SHALL STAY THE PROCEEDING AND REFER THE PARTIES TO MEDIATION OR ALTERNATIVE DISPUTE RESOLUTION UNLESS THE COURT REASONABLY BELIEVES THAT MEDIATION WOULD NOT BE IN THE BEST INTEREST OF THE MINOR. THE COURT MAY CONSIDER ANY OF THE FOLLOWING:
1. THE MINOR'S PARENT OR LEGAL GUARDIAN HAS BEEN CONVICTED OF ABUSE, NEGLECT OR ABANDONMENT.
2. THE MINOR'S PARENT OR LEGAL GUARDIAN IS NAMED AS A PERPETRATOR OF ABUSE, NEGLECT OR ABANDONMENT IN THE PROTECTIVE SERVICES CENTRAL REGISTRY PURSUANT TO SECTION 8-804.
3. ANY OTHER INFORMATION THE COURT DEEMS RELEVANT.
C. IF AGREEMENT IS REACHED THROUGH MEDIATION, THE PARTIES SHALL SUBMIT THE SIGNED MEDIATION AGREEMENT TO THE COURT.
12-2453. Factors; best interests of minor
A. THE COURT SHALL DETERMINE EMANCIPATION BASED ON THE BEST INTERESTS OF THE MINOR AND SHALL CONSIDER ALL RELEVANT FACTORS, INCLUDING:
1. THE POTENTIAL RISKS AND CONSEQUENCES OF EMANCIPATION AND TO WHAT DEGREE THE MINOR UNDERSTANDS THESE RISKS AND CONSEQUENCES.
2. THE WISHES OF THE MINOR.
3. THE OPINIONS AND RECOMMENDATIONS OF THE MINOR'S PARENT OR GUARDIAN.
4. THE FINANCIAL RESOURCES OF THE MINOR, INCLUDING THE MINOR'S EMPLOYMENT HISTORY.
5. THE MINOR'S ABILITY TO BE FINANCIALLY SELF-SUFFICIENT.
6. THE MINOR'S LEVEL OF EDUCATION AND THE MINOR'S SUCCESS IN SCHOOL.
7. WHETHER THE MINOR HAS A CRIMINAL RECORD.
B. THE MINOR HAS THE BURDEN OF PROOF BY CLEAR AND CONVINCING EVIDENCE.
C. THE COURT SHALL FILE AN EMANCIPATION ORDER WITH THE CLERK OF THE COURT AND ISSUE A COPY OF THE ORDER TO THE MINOR AND THE DEPARTMENT OF ECONOMIC SECURITY OR ITS AGENT, IF THE MINOR IS A CHILD IN A TITLE IV-D CASE.
D. AN EMANCIPATION ORDER ISSUED BY A COURT PURSUANT TO THIS ARTICLE:
1. IS CONCLUSIVE EVIDENCE THAT THE MINOR IS EMANCIPATED.
2. TERMINATES A DEPENDENCY ACTION AS TO THE MINOR BY OPERATION OF LAW.
12-2454. Effect of emancipation
A. AN EMANCIPATION ORDER ISSUED PURSUANT TO THIS ARTICLE RECOGNIZES THE MINOR AS AN ADULT FOR THE FOLLOWING PURPOSES:
1. THE RIGHT TO ENTER INTO A BINDING CONTRACT.
2. THE ABILITY TO SUE AND BE SUED.
3. THE RIGHT TO BUY AND SELL REAL PROPERTY.
4. THE RIGHT TO ESTABLISH A LEGAL RESIDENCE.
5. THE OBLIGATION TO PAY CHILD SUPPORT.
6. THE RIGHT TO INCUR DEBTS.
7. THE RIGHT TO ACCESS MEDICAL TREATMENT AND RECORDS.
8. THE RIGHT TO CONSENT TO MEDICAL, DENTAL AND PSYCHIATRIC CARE WITHOUT PARENTAL CONSENT, KNOWLEDGE OR LIABILITY.
9. THE RIGHT TO CONSENT TO MEDICAL, DENTAL AND PSYCHIATRIC CARE FOR THE EMANCIPATED MINOR'S CHILD.
10. ELIGIBILITY FOR SOCIAL SERVICES.
11. THE RIGHT TO OBTAIN A LICENSE TO OPERATE EQUIPMENT OR PERFORM A SERVICE.
12. THE RIGHT TO APPLY FOR ENROLLMENT IN ANY SCHOOL OR COLLEGE.
13. THE ABILITY TO APPLY FOR LOANS.
B. AN EMANCIPATION ORDER ISSUED PURSUANT TO THIS ARTICLE TERMINATES A PARENT'S OR LEGAL GUARDIAN'S:
1. RIGHT TO THE EMANCIPATED MINOR'S INCOME.
2. FUTURE CHILD SUPPORT OBLIGATIONS RELATING TO THE EMANCIPATED MINOR.
3. TORT LIABILITY FOR THE EMANCIPATED MINOR'S ACTIONS.
4. OBLIGATION TO FINANCIALLY SUPPORT THE EMANCIPATED MINOR AFTER THE FIRST DAY OF THE MONTH FOLLOWING ENTRY OF THIS ORDER.
5. OBLIGATION TO PROVIDE MEDICAL SUPPORT FOR THE EMANCIPATED MINOR.
12-2455. Recognition of emancipation from another jurisdiction
THIS STATE SHALL RECOGNIZE A MINOR AS AN EMANCIPATED MINOR IF THAT MINOR CAN DOCUMENT EMANCIPATION FROM ANOTHER JURISDICTION OF THE UNITED STATES AND IS AT LEAST SIXTEEN YEARS OF AGE.
12-2456. Emancipation administrative costs fund; purpose; report; collection of information
A. EACH COUNTY TREASURER SHALL ESTABLISH AN EMANCIPATION ADMINISTRATIVE COSTS FUND CONSISTING OF MONIES RECEIVED PURSUANT TO SECTION 12-284, SUBSECTION J.
B. THE PRESIDING JUDGE OF THE JUVENILE COURT SHALL USE FUND MONIES FOR ADMINISTRATIVE COSTS ASSOCIATED WITH THIS ARTICLE.
C. ON NOTICE OF THE PRESIDING JUDGE, THE COUNTY TREASURER SHALL INVEST MONIES IN THE FUND AND MONIES EARNED FROM INVESTMENT SHALL BE CREDITED TO THE FUND.
D. ON OR BEFORE NOVEMBER 15 OF EACH YEAR, THE COUNTY TREASURER SHALL SUBMIT A REPORT TO THE PRESIDING JUDGE THAT SHOWS THE AMOUNT OF MONIES IN THE FUND.
E. BEGINNING OCTOBER 1, 2005, THE ADMINISTRATIVE OFFICE OF THE COURTS SHALL COLLECT INFORMATION RELATING TO EMANCIPATION OF MINORS PURSUANT TO THIS TITLE, INCLUDING THE FOLLOWING:
1. THE NUMBER OF PETITIONS FILED, BY AGE AND COUNTY OF RESIDENCE.
2. THE NUMBER OF PETITIONS GRANTED, BY AGE AND COUNTY OF RESIDENCE.
F. THE ADMINISTRATIVE OFFICE OF THE COURTS SHALL INCLUDE THE INFORMATION COLLECTED PURSUANT TO SUBSECTION E OF THIS SECTION IN THE ANNUAL REPORT OF THE JUDICIAL DEPARTMENT.
Sec. 4. Section 28-3165, Arizona Revised Statutes, is amended to read:
28-3165. Nonoperating identification license; immunity; rules; emancipated minors
A. On receipt of an application from a person who does not have a valid driver license issued by this state or whose driving privilege is suspended, the department shall issue a nonoperating identification license that contains a distinguishing number assigned to the licensee, the full legal name, the date of birth, the residence address and a brief description of the licensee and either a facsimile of the signature of the licensee or a space on which the licensee is required to write the licensee's usual signature with pen and ink. A nonoperating identification license that is issued to a person whose driving privilege is suspended shall not be valid for more than one hundred eighty days from the date of issuance.
B. On request of an applicant, the department shall allow the applicant to provide on the nonoperating identification license a post office box address that is regularly used by the applicant.
C. A person who is issued a license pursuant to this section shall use it only for identification purposes of the licensee. The nonoperating identification license does not grant authority to operate a motor vehicle in this state. The department shall clearly label the nonoperating identification license "for identification only, not for operation of a motor vehicle".
D. On issuance of a driver license, the holder of a nonoperating identification license shall surrender the nonoperating identification license to the department and the department shall not refund any fee paid for the issuance of the nonoperating identification license.
E. A nonoperating identification license shall contain the photograph of the licensee. The department shall use a process in the issuance of nonoperating identification licenses that prohibits as nearly as possible the ability to superimpose a photograph on the license without ready detection. The department shall process nonoperating identification licenses and photo attachments in color.
F. On application, an applicant shall give the department satisfactory proof of the applicant's full legal name, date of birth, sex and residence address and that the applicant's presence in the United States is authorized under federal law. The application shall briefly describe the applicant, state whether the applicant has been licensed, and if so, the type of license issued, when and by what state or country and whether any such license is under suspension, revocation or cancellation. The application shall contain other identifying information required by the department.
G. The department may adopt and implement procedures to deny a nonoperating identification license to a person who has been deported. The department may adopt and implement procedures to reinstate a person's privilege to apply for a nonoperating identification license if the person's legal presence status is restored.
H. A nonoperating identification license issued by the department is solely for the use and convenience of the applicant for identification purposes.
I. The department shall adopt rules and establish fees for issuance of a nonoperating identification license, except that the department shall not require an examination.
J. A person who is sixty-five years of age or older and a person who is a recipient of public monies as a disabled individual under title XVI of the social security act, as amended, are exempt from the fees established pursuant to this section.
K. If a person qualifies for a nonoperating identification license and is under the legal drinking age, the department shall issue a license that is marked by color, code or design to immediately distinguish it from a nonoperating identification license issued to a person of legal drinking age. The department shall indicate on the nonoperating identification license issued pursuant to this subsection the year in which the person will attain the legal drinking age.
L. IF A MINOR HAS BEEN EMANCIPATED PURSUANT TO TITLE 12, CHAPTER 15, ON APPLICATION AND PROOF OF EMANCIPATION, THE DEPARTMENT SHALL ISSUE A NONOPERATING IDENTIFICATION LICENSE THAT CONTAINS THE WORDS "EMANCIPATED MINOR".
Sec. 5. Section 28-3166, Arizona Revised Statutes, is amended to read:
28-3166. Driver license content and application; marked licenses; emancipated minors
A. The department shall issue a driver license to a qualified applicant. The driver license shall contain a distinguishing number assigned to the licensee, the license class, any endorsements, the licensee's full name, date of birth and residence address, a brief description of the licensee and either a facsimile of the signature of the licensee or a space on which the licensee is required to write the licensee's usual signature with pen and ink. A driver license is not valid until it is signed by the licensee. On request of an applicant, the department shall allow the applicant to provide on the driver license a post office box address that is regularly used by the applicant and that is located in the county in which the applicant resides.
B. An application for a driver license and the driver license issued shall contain the photo image of the applicant or licensee. The department shall use a process in the issuance of driver licenses that prohibits as nearly as possible the ability to alter or reproduce the license or that prohibits the ability to superimpose a photo image on the license without ready detection. The department shall process driver licenses and photo images in color. This subsection does not apply to a driver license that is renewed by mail pursuant to section 28-3172.
C. An applicant who is sixteen or older but under twenty-four years of age shall provide the department with satisfactory proof of the applicant's legal name and date of birth.
D. If a person is qualified for a driver license and is under the legal drinking age, the department shall issue a license that is marked by color, code or design to immediately distinguish it from a license issued to a person of legal drinking age. The department shall indicate on the driver license issued pursuant to this subsection the year in which the person will attain the legal drinking age.
E. The department shall not include information in the magnetic stripe and bar code of a driver license other than information that the department is authorized to obtain and place on a driver license pursuant to this article.
F. IF A MINOR HAS BEEN EMANCIPATED PURSUANT TO TITLE 12, CHAPTER 15, ON APPLICATION AND PROOF OF EMANCIPATION, THE DEPARTMENT SHALL ISSUE A DRIVER LICENSE THAT CONTAINS THE WORDS "EMANCIPATED MINOR".
Sec. 6. Petitions for emancipation orders; statistics; report
For the period October 1, 2005 through September 30, 2007, the administrative office of the courts shall collect and report the number and percentage of petitions granted by categories pursuant to section 12-2451, subsection B, paragraph 3, subdivision (g), Arizona Revised Statutes, as added by this act, in the judicial department annual report.
APPROVED BY THE GOVERNOR APRIL 18, 2005.
FILED IN THE OFFICE OF THE SECRETARY OF STATE APRIL 18, 2005.

Wilcox & Wilcox, P.C.
Trent Wilcox
For the Firm

Phoenix office:
3030 N. Central Ave., Ste. 705
Phoenix, Arizona 85012
Ph: 602-631-9555
Fx: 602-631-4004

Goodyear office:
1616 N. Litchfield Rd., Ste. 240
Goodyear, Arizona 85338
Ph: 623-344-7880
Fx: 602-631-4004

Visit our website: www.wilcoxlegal.com

Disclaimer: Providing the above information does not establish an
attorney-client relationship. To create such a relationship, both the
attorney and potential client must sign a written fee agreement. The
information contained herein is meant only as general information and is not meant to be relied upon for the purpose of taking legal action. You should contact an attorney in person for further and specific information. Wilcox & Wilcox, P.C. attorneys are licensed in Arizona only except for personal injury attorney Robert N. Edwards, who is licensed in Arizona and Minnesota.

What Parental Access is Appropriate for Very Young Children?

2005-05-17T22:06:00.000-07:00

This child visitation issue is a very emotional issue for both parents to an Arizona divorce, paternity or other family court proceeding and there are various factors the Arizona family court considers. Will the court order overnight visits? How long should visitation be with an infant? Where should visitation take place? Add into those variables the fact that a father often times is at a disadvantage in parental access proceedings because a child may still be nursing. Both the parties to a family court proceeding and judge him/herself often must engage in a balancing act to protect a child's best interest and avoid alienating either parent.

As with other family law issues, judges' opinions on this family law issue vary to some degree. There is, however, some guidance on the subject. I am familiar with two sets of parental access guidelines that can affect these decisions.

One set of parental access guidelines is the Superior Court of Maricopa County Parenting Time Guidelines found at http://www.superiorcourt.maricopa.gov/ssc/forms/word/drcvg11h.doc. On the issue of very young children, the Maricopa County Superior Court's Parenting Time Guidelines state as follows:

Infant up to Age Six Months Basic Access: Ideally, access should be brief but frequent throughout the week. For those parents whose schedules permit, access is recommended three times a week at two hours each for the early months. As the child progresses to the age of six months, an additional four hours should be added during the day on the weekend. For those parents unable to have the frequent access, which is recommended, the alternative would be a four-hour access on the weekend. Optional Access: Optional access includes one or more of the following: One access each week following birth and progressing to a total of three to four access times per week at four hours each with a weekend overnight suggested. Six Months to Three Years Basic Access: Provided regular access between parents and child(ren) has been maintained, access from six to twelve months should include the day of Saturday, and starting from twelve months to three years, access should progress up to alternate weekends (Saturday a.m. to Sunday p.m.) and one mid-week (not overnight). Optional Access: Optional access includes one or more of the following: extending the weekend so that it begins on either Friday or Thursday; allowing additional weekday access; allowing a mid-week overnight access.

The other oft-referred parental access guideline is the Model Parenting Time Plans for Parent/Child Access found on the Arizona Supreme Court's website at http://www.supreme.state.az.us/dr/Pdf/Parenting_Time_Plan_Final.pdf. The Model Parenting Time Plan found on the Arizona Supreme Court's website addresses very young children as follows:

At this young age, it is important to maintain the infant’s basic sleep, feeding and waking cycles. Schedules should be adjusted so that disruption does not occur. For example, in creating access plans for this age group, parents should consider the special needs of breastfeeding infants.
Plan A (1): Three periods of three to six hours spaced throughout each week.
Comment: Frequent contact helps the parent and child bond.
Plan A (2): Two six-hour periods spaced throughout each week.
Comment: This plan is helpful when the parents’ work schedules or their levels of conflict make more frequent exchanges difficult. Because in this plan there are only birth to twelve months two visits each week, bonding between the parent and child may proceed more slowly and the child may experience some difficulty going from one parent to the other.
Vacation: Time blocks that vary significantly from the above are not recommended.
Holidays: When holidays or special occasions like Father’s Day, Mother’s Day and birthdays do not fall on a parent’s access day, parents should consider dividing them consistent with the time blocks noted above.
Plan B: Two three-hour periods and one eight-hour period spaced throughout each week.
See Plan A above for Vacation and Holidays.
Plan C: Two periods of three to six hours and one overnight each week.
Vacation: Presuming that Plan C overnights have been ongoing, parents may have three consecutive overnights, weekend or midweek, twice each year. Each parent shall give the other parent thirty days written notice of vacation plans and an itinerary of travel dates, destination and places where the child or parent can be reached.
Holidays: When holidays or special occasions like Father’s Day, Mother’s Day and birthdays do not fall on a parent’s access day, parents should consider dividing them consistent with the time blocks noted above.
One to two year-olds are becoming more aware of the world around them and the people who are frequently in contact with them. A baby at this age can be attached to many caregivers including grandparents, other extended family members, daycare providers, babysitters and family friends who are frequently in contact with the child.
One to two year-olds are also becoming independent and are developing the ability to comfort themselves by thumb sucking or holding onto favorite blankets or toys. Their sleeping and eating schedules are also becoming regular. They continue to respond
to the different (but equally valuable) types of parenting mothers and fathers provide. Two year-olds commonly test parental limits ("terrible twos") and appropriate parental responses can build the child’s self-esteem for years to come.
Transitions between homes may become difficult for some one to two year-olds and they may become upset at these times. Some resistance to exchanges is normal for some children. This behavior does not necessarily mean that the other parent is not a good parent or that the child does not want to be with the other parent. Parents can make exchanges easier for the child by following predictable schedules and by supporting the child’s relationship with the other parent.
Plan A(1): Three periods of three to six hours spaced throughout each week.
Comment: Frequent contact helps the parent and child bond.
Plan A(2): Two six-hour periods spaced throughout each week.
Comment: This plan is helpful when the parents’ work schedules or their levels of conflict make more frequent exchanges difficult. Because in this plan there are only two twelve to twenty-four months visits each week, bonding between the parent and child may proceed more slowly and the child may experience some difficulty going from one parent to the other.
Vacation: Time blocks that vary significantly from the above are not recommended.
Holidays: When holidays or special occasions like Father’s Day, Mother’s Day and birthdays do not fall on a parent’s access day, parents should consider dividing them consistent with the time blocks noted above.
Plan B: Two four-hour periods and one eight-hour period spaced throughout each week.
See Plan A above for Vacation and Holidays.
Plan C: One daytime period of three to six hours and two non-consecutive overnights each week.
Vacation: Presuming that Plan C overnights have been ongoing, parents may have one period of three consecutive overnights, midweek or weekend, with children 12 to 18 months old. After the age of 18 months, parents may have two one-week periods separated by at least four weeks. Each parent shall give the other parent thirty days written notice of his/her vacation plans and an itinerary of travel dates, destination and places where the child or parent can be reached.
Holidays: When holidays or special occasions like Father’s Day, Mother’s Day and birthdays do not fall on a parent’s access day, parents should consider dividing them consistent with thetime blocks noted above.

Keep in mind that these are only guidelines and that each case and judge are different.

Wilcox & Wilcox, P.C.
Trent Wilcox
For the Firm

Phoenix office:
3030 N. Central Ave., Ste. 705
Phoenix, Arizona 85012
Ph: 602-631-9555
Fx: 602-631-4004

Goodyear office:
1616 N. Litchfield Rd., Ste. 240
Goodyear, Arizona 85338
Ph: 623-344-7880
Fx: 602-631-4004

Visit our website: www.wilcoxlegal.com

Disclaimer: Providing the above information does not establish an
attorney-client relationship. To create such a relationship, both the
attorney and potential client must sign a written fee agreement. The
information contained herein is meant only as general information and is not meant to be relied upon for the purpose of taking legal action. You should contact an attorney in person for further and specific information. Wilcox & Wilcox, P.C. attorneys are licensed in Arizona only except for personal injury attorney Robert N. Edwards, who is licensed in Arizona and Minnesota.

What State's Family Court has Jurisdiction Over My Divorce and Custody Issues?

2005-04-24T10:20:00.000-07:00

Answer: Jurisdiction over a divorce (or other family court proceeding) and jurisdiction over children who may be part of an anticipated/ongoing/previous divorce/modification are often different. For example, under Arizona's family law statutes, Arizona family courts may assume jurisdiction over a divorce when one party to the divorce has been domiciled in Arizona for 90 days. However, except under limited circumstances, including certain emergencies, the Arizona family court will not have jurisdiction over children until they have resided in Arizona for 6 months. Arizona statute provides the 90-day domicile requirement in the case of divorce jurisdiction. The Uniform Child Custody Jurisdiction & Enforcement Act (UCCJEA) controls the issue of jurisdiction over children. The UCCJEA is a "uniform law," meaning that a national committee wrote it with the expectation that each state would add it to its own family law statutes, which Arizona did. The UCCJEA sets forth various factors that a family court must use in determining child custody jurisdiction, the strongest factor of which is the six month residency requirement. The reason behind creating the UCCJEA and its predecessor laws is to prevent what is known in the courts as "forum shopping." Forum shopping simply means trying to find a court that has a more favorable set of rules, statutes or judges than another. In times past, it was not unusual for the non-custodial parent of a child to take the child to another state without permission, make up outrageous allegations and thus convince the new state to order custody to the abducting parent. This created multiple problems including encouraging child abductions and having two contradictory court orders, also known as a big mess. The UCCJEA and its federal counterpart, the Parental Kidnapping Prevention Act (PKPA), are attempts to address these common issues of family law.

As a practical or perhaps impractical matter, the above information makes it possible for one court to have jurisdiction over a divorce based on Arizona's 90-day family law domicile rule and another state's family court to have jurisdiction over the children of that same divorce. Thus, a couple could be divorced by one state's courts and another state could have jurisdiction over child custody and visitation. Who should have jurisdiction over the child support? Usually the state in which the parent paying child support resides.

Keep in mind that once an Arizona divorce is filed and served, a court order called a Preliminary Injunction goes into effect. (Under Arizona family law, the Preliminary Injunction is effective upon the initial petitioner upon filing and upon the other spouse (the "Respondent") upon service). Among other things, this Injunction states that neither party may remove the children from Arizona without permission. However, if the children are removed prior to the divorce being filed, a number of factors come into play. Usually the strongest factor is the length of time that the children have resided in each place. Each situation is different, however, which is why we have family court judges and Arizona famliy lawyers to help sort things out. Always consult an attorney on these issues because a bad decision can result in a criminal penalty!

Wilcox & Wilcox, P.C.
Trent Wilcox
For the Firm

Phoenix office:
3030 N. Central Ave., Ste. 705
Phoenix, Arizona 85012
Ph: 602-631-9555
Fx: 602-631-4004

Goodyear office:
1616 N. Litchfield Rd., Ste. 240
Goodyear, Arizona 85338
Ph: 623-344-7880
Fx: 602-631-4004

Visit our website: www.wilcoxlegal.com

Disclaimer: Providing the above information does not establish an
attorney-client relationship. To create such a relationship, both the
attorney and potential client must sign a written fee agreement. The
information contained herein is meant only as general information and is not meant to be relied upon for the purpose of taking legal action. You should contact an attorney in person for further and specific information. Wilcox & Wilcox, P.C. attorneys are licensed in Arizona only except for personal injury attorney Robert N. Edwards, who is licensed in Arizona and Minnesota.

Can Child Support be Retroactively Modified After It Becomes Due?

2005-04-20T00:41:00.000-07:00

Answer: Normally not and, since passage of the Bradley Amendment by the U.S. Congress in 1986, it seems difficult indeed. The Bradley Amendment, 42 U.S.C. § 666(a)(9)(c), basically says that child support cannot be modified after the fact.

The Bradley Amendment, part of a very lengthy federal law, reads as follows:

TITLE 42. CHAPTER 7. SUBCHAPTER IV. Part D. § 666

§ 666. Requirement of Statutorily Prescribed Procedures to Improve Effectiveness of Child Support Enforcement

(a) Types of procedures required

In order to satisfy section 654 (20)(A) of this title, each State must have in effect laws requiring the use of the following procedures, consistent with this section and with regulations of the Secretary, to increase the effectiveness of the program which the State administers under this part:

(9) Procedures which require that any payment or installment of support under any child support order, whether ordered through the State judicial system or through the expedited processes required by paragraph (2), is (on and after the date it is due)—

(C) not subject to retroactive modification by such State or by any other State; except that such procedures may permit modification with respect to any period during which there is pending a petition for modification, but only from the date that notice of such petition has been given, either directly or through the appropriate agent, to the obligee or (where the obligee is the petitioner) to the obligor.

Many people, groups and even judges have come out against the law as having unintended consequences and being grossly unfair. The law does not allow for exceptions even in extreme circumstances. For example, a man was mistakenly put on death row for 10 years and, when his innocence was proven, he was so far in arrears on his child support upon his release ($50,000) that he runs the risk of being thrown in jail, if that has not already occurred. Thus, I understand that there are lawsuits pending regarding the Amendment.

Wilcox & Wilcox, P.C.
Trent Wilcox
For the Firm

Phoenix office:
3030 N. Central Ave., Ste. 705
Phoenix, Arizona 85012
Ph: 602-631-9555
Fx: 602-631-4004

Goodyear office:
1616 N. Litchfield Rd., Ste. 240
Goodyear, Arizona 85338
Ph: 623-344-7880
Fx: 602-631-4004

Visit our website: www.wilcoxlegal.com

Disclaimer: Providing the above information does not establish an
attorney-client relationship. To create such a relationship, both the
attorney and potential client must sign a written fee agreement. The
information contained herein is meant only as general information and is not meant to be relied upon for the purpose of taking legal action. You should contact an attorney in person for further and specific information. Wilcox & Wilcox, P.C. attorneys are licensed in Arizona only except for personal injury attorney Robert N. Edwards, who is licensed in Arizona and Minnesota.

Does Arizona Family Law Require a Parent to Pay for a Child's College Education?

2005-04-08T11:54:00.000-07:00

Answer: Normally not. Unless a parent agrees to pay for a child's college education and formally obligates him/herself to do so, a parent is not so required. In other words, there is no Arizona family law requiring a parent to pay for his or her child's college education.

However, state laws on this subject vary and it is possible that Arizona could enforce a court order for a parent to pay for college costs entered in another state's family court. This could happen because the parent ordered to pay moved to Arizona and the divorce decree was domesticated in Arizona (meaning the divorce decree was officially transferred to Arizona for purposes of enforcement in our family courts).

Wilcox & Wilcox, P.C.
Trent Wilcox
For the Firm

Phoenix office:
3030 N. Central Ave., Ste. 705
Phoenix, Arizona 85012
Ph: 602-631-9555
Fx: 602-631-4004

Goodyear office:
1616 N. Litchfield Rd., Ste. 240
Goodyear, Arizona 85338
Ph: 623-344-7880
Fx: 602-631-4004

Visit our website: www.wilcoxlegal.com

Disclaimer: Providing the above information does not establish an
attorney-client relationship. To create such a relationship, both the
attorney and potential client must sign a written fee agreement. The
information contained herein is meant only as general information and is not meant to be relied upon for the purpose of taking legal action. You should contact an attorney in person for further and specific information. Wilcox & Wilcox, P.C. attorneys are licensed in Arizona only except for personal injury attorney Robert N. Edwards, who is licensed in Arizona and Minnesota.

Is the Final Month of Child Support Prorated or is the Full Amount Due?

2005-04-08T10:38:00.000-07:00

Answer: Section 4 of the Arizona Child Support Guidelines, adopted by the Arizona Supreme Court and effective January 1, 2005, addresses this issue. Under Section 4 of the Arizona Child Support Guidelines, child support ends as of the last day of the month in which the final child support payment is due. Thus, under the Arizona Child Support Guidelines, a full monthly payment is due for the final month, even if the child who is the subject of the order meets the emancipation requirements earlier in the month.

Section 4 of the Arizona Child Support Guidelines is reprinted below for your information:

4. DURATION OF CHILD SUPPORT

Duration of child support is governed by Arizona Revised Statutes, Sections 25-320 and 25-
501, except as provided in Arizona Revised Statutes, Section 25-1304.
Upon entry of an initial or modified child support order, the court shall, or in any subsequent
action relating to the child support order, the court may, establish a presumptive date for the
termination of the current child support obligation. The presumptive termination date shall
be the last day of the month of the 18th birthday of the youngest child included in the order
unless the court finds that it is projected that the youngest child will not complete high
school by age 18. In that event, the presumptive termination date shall be the last day of the
month of the anticipated graduation date or age 19, whichever occurs first. The
administrative income withholding order issued by the department or its agent in Title IV-D
cases and an Order of Assignment issued by the court shall include the presumptive
termination date. The presumptive date may be modified upon changed circumstances.
An employer or other payor of funds honoring an Order of Assignment or an administrative
income withholding order that includes the presumptive termination date and is for current
child support only, shall discontinue withholding monies after the last pay period of the
month of the presumptive termination date. If the Order of Assignment or administrative
income withholding order includes current child support and arrearage payment, the
employer or other payor of funds shall continue withholding the entire amount listed on the
Order of Assignment or administrative income withholding order until further order.
For purposes of determining the presumptive termination date, it is further presumed:
A. That a child not yet in school will enter 1st grade if the child reaches age 6 on or before
September 1 of the year in which the child reaches age 6; otherwise, it is presumed that
the child will enter 1st grade the following year; and,
B. That a child will graduate in the month of May after completing the 12 th grade.

Wilcox & Wilcox, P.C.
Trent Wilcox
For the Firm

Phoenix office:
3030 N. Central Ave., Ste. 705
Phoenix, Arizona 85012
Ph: 602-631-9555
Fx: 602-631-4004

Goodyear office:
1616 N. Litchfield Rd., Ste. 240
Goodyear, Arizona 85338
Ph: 623-344-7880
Fx: 602-631-4004

Visit our website: www.wilcoxlegal.com

Disclaimer: Providing the above information does not establish an
attorney-client relationship. To create such a relationship, both the
attorney and potential client must sign a written fee agreement. The
information contained herein is meant only as general information and is not meant to be relied upon for the purpose of taking legal action. You should contact an attorney in person for further and specific information. Wilcox & Wilcox, P.C. attorneys are licensed in Arizona only except for personal injury attorney Robert N. Edwards, who is licensed in Arizona and Minnesota.

What is a Retainer versus a Fee Advance?

2005-03-18T22:57:00.000-07:00

Answer: Retainers and fee advances are often confused and often are mistakenly used interchangeably. Technically, they are different and serve slightly different purposes. Retainers are amounts given to a lawyer to keep that lawyer on a client's payroll for a set period of time. For example, a client could give a lawyer $5000 per month to maintain that lawyer as the client's representative. The retainer, therefore, is kept by the lawyer regardless of whether there is work done. The client may receive a bill for services over and above the $5000, depending on the fee arrangement.

A fee advance, on the other hand, is simply an amount given to a lawyer to pay for some or all of the lawyer's anticipated fees for future work. Thus, if a lawyer works at $200 per hour and he receives a $5000 fee advance, the fee advance would cover 25 hours of the lawyer's time. Keep in mind that the general movement these days is for any amounts that are not actually earned to be refunded to the client. In other words, if a client provides a fee advance of $5000 but the client's case only takes 20 hours to completely finish, the client may be entitled to a refund of $1000. Of course, there may be costs associated with a client's case that might be paid from the fee advance, such as filing and subpoena fees, deposition costs, service of process, etc. and these would affect the total amount the client owes the attorney and vice versa.

Wilcox & Wilcox, P.C.
Trent Wilcox
For the Firm

Phoenix office:
3030 N. Central Ave., Ste. 705
Phoenix, Arizona 85012
Ph: 602-631-9555
Fx: 602-631-4004

Goodyear office:
1616 N. Litchfield Rd., Ste. 240
Goodyear, Arizona 85338
Ph: 623-344-7880
Fx: 602-631-4004

Visit our website: www.wilcoxlegal.com

Disclaimer: Providing the above information does not establish an
attorney-client relationship. To create such a relationship, both the
attorney and potential client must sign a written fee agreement. The
information contained herein is meant only as general information and is not meant to be relied upon for the purpose of taking legal action. You should contact an attorney in person for further and specific information. Wilcox & Wilcox, P.C. attorneys are licensed in Arizona only except for personal injury attorney Robert N. Edwards, who is licensed in Arizona and Minnesota.

Filing Fees Increase in Maricopa County Superior Court

2005-03-06T22:22:00.000-07:00

Unfortunately, filing fees have gone up as much as $40 for family court filings as of March 1, 2005. New dissolution of marriage petitions, for example, are now $276. The good news, I guess, is that you still do not have to pay every time you file something on a case but mostly only when you either start a new case or file a new post-decree petition, such as a petition to modify custody or child support. It appears that most post-decree filings will remain $61. Certain things, such as Subpoena issuance, are always a little extra during a case.

Wilcox & Wilcox, P.C.
Trent Wilcox
For the Firm

Phoenix office:
3030 N. Central Ave., Ste. 705
Phoenix, Arizona 85012
Ph: 602-631-9555
Fx: 602-631-4004

Goodyear office:
1616 N. Litchfield Rd., Ste. 240
Goodyear, Arizona 85338
Ph: 623-344-7880
Fx: 602-631-4004

Visit our website: www.wilcoxlegal.com

Disclaimer: Providing the above information does not establish an
attorney-client relationship. To create such a relationship, both the
attorney and potential client must sign a written fee agreement. The
information contained herein is meant only as general information and is not meant to be relied upon for the purpose of taking legal action. You should contact an attorney in person for further and specific information. Wilcox & Wilcox, P.C. attorneys are licensed in Arizona only except for personal injury attorney Robert N. Edwards, who is licensed in Arizona and Minnesota.

How Do Social Security Benefits Affect Child Support?

2005-02-28T20:26:00.000-07:00

Answer: Social Security benefits can affect child support in two ways. First, if a either the parent paying child support (the "obligor") or the parent receiving child support (the "obligee") receives Social Security benefits, the Arizona Child Support Guidelines require that the Social Security benefits be included in determining either parents income. Thus, the Social Security benefits help to determine the initial child support obligation.

Second, the Social Security benefits can affect the amount of child support that must be paid out of pocket by the parent paying child support. Section 26 of the Arizona Child Support Guidelines addresses this issue and states verbatim as follows:

A. Income earned or money received by a child from any source other than court-ordered child support shall not be counted toward either parent’s child support obligation except as stated herein. However, income earned or money received by or on behalf of a person for whom child support is ordered to continue past the age of majority pursuant to Arizona Revised Statute Sections 25-320.B and 25-809.F may be credited against any child support obligation.
B. Benefits, such as Social Security Disability or Insurance, received by a custodial parent on behalf of a child, as a result of contributions made by the parent paying child support shall be credited as follows:
1. If the amount of the child's benefit for a given month is equal to or greater than the paying parent's child support obligation, then that parent's obligation is satisfied.
2. Any benefit received by the child for a given month in excess of the child support obligation shall not be treated as an arrearage payment nor as a credit toward future child support payments.
3. If the amount of the child's benefit for a given month is less than the parent's child support obligation, the parent shall pay the difference unless the court, in its discretion, modifies the child support order to equal the benefits being received at that time.
C. Except as otherwise provided in section 5.B, any benefits received directly, and not on behalf of a child, by either the custodial parent or the parent paying child support as a result of his or her own contributions, shall be included as part of that parent’s gross income.

My interpretation of the above, minus some of the legalese, is really pretty simple:

A. If a child receives benefits from a source outside of the parent paying child support, it will not normally diminish the paying parent's child support obligation unless the Arizona Child Support Guidelines provide a specific exception. However, if a mentally or physically disabled child receives child support past the age of majority, those amounts may be credited toward the paying parent's child support obligation. Notice this is a "may" and not a "shall," meaning that the court has discretion in this child support matter.
B. If a child receives benefits, such as social security or insurance, because the paying parent made the child eligible to receive such benefits by paying into the system, those amounts shall be credited toward the paying parent's child support obligation in the manners described. Notice this is a "shall" and not a "may," meaning that the court has no discretion in this child support matter.
C. As I mentioned above, a parent who receives payments directly on his or her behalf must include those amounts in income totals used to calculate child support. However, the exception to this provision is provided by the Child Support Guidelines Section 5(B) which states, "Gross income does not include sums received as child support or benefits received from means-tested public assistance programs including, but not limited to, Temporary Assistance to Needy Families (TANF), Supplemental Security Income (SSI), Food Stamps and General Assistance."

Wilcox & Wilcox, P.C.
Trent Wilcox
For the Firm

Phoenix office:
3030 N. Central Ave., Ste. 705
Phoenix, Arizona 85012
Ph: 602-631-9555
Fx: 602-631-4004

Goodyear office:
1616 N. Litchfield Rd., Ste. 240
Goodyear, Arizona 85338
Ph: 623-344-7880
Fx: 602-631-4004

Visit our website: www.wilcoxlegal.com

Disclaimer: Providing the above information does not establish an attorney-client relationship. To create such a relationship, both the attorney and potential client must sign a written fee agreement. The
information contained herein is meant only as general information and is not meant to be relied upon for the purpose of taking legal action. You should contact an attorney in person for further and specific information. Wilcox & Wilcox, P.C. attorneys are licensed in Arizona only except for personal injury attorney Robert N. Edwards, who is licensed in Arizona and Minnesota.

Can a Married Couple Change the Nature of an Asset from Community Property to Sole and Separate, or Vice Versa?

2005-02-04T21:12:00.000-07:00

Answer: Sure. Intentionally changing the nature of a marital asset is common. For example, one spouse may quit-claim a house to the other for some reason. This written agreement evidences the spouses' intent that the asset be sole and separate property from that point on. Likewise, one spouse could change a sole and separate house to community property by an opposite change in title, to community property. The family court would see that as a “gift” to the community. Many parties also use antenuptial (prenuptial) and postnuptial agreements to alter community property principles. On a different note, it is also possible to make the marital property change unintentionally. This occurs in the case of commingling. Commingling occurs during a marriage when separate assets and community assets become hopelessly mixed such that the family court, during divorce proceedings, cannot tell the difference. This frequently occurs with bank accounts. The burden of tracing the separate asset during a divorce falls on the spouse claiming a sole and separate interest. When an asset changes its nature, the process is called “transmutation.”

Wilcox & Wilcox, P.C.
Trent Wilcox
For the Firm

Phoenix office:
3030 N. Central Ave., Ste. 705
Phoenix, Arizona 85012
Ph: 602-631-9555
Fx: 602-631-4004

Goodyear office:
1616 N. Litchfield Rd., Ste. 240
Goodyear, Arizona 85338
Ph: 623-344-7880
Fx: 602-631-4004

Visit our website: www.wilcoxlegal.com

Disclaimer: Providing the above information does not establish an
attorney-client relationship. To create such a relationship, both the
attorney and potential client must sign a written fee agreement. The
information contained herein is meant only as general information and is not meant to be relied upon for the purpose of taking legal action. You should contact an attorney in person for further and specific information. Wilcox & Wilcox, P.C. attorneys are licensed in Arizona only except for personal injury attorney Robert N. Edwards, who is licensed in Arizona and Minnesota.

I’ve Learned that My Spouse Spent $200,000 of Our Community Funds Gambling Over the Years. Can I Make a Claim for that Amount During the Divorce?

2005-02-02T22:43:00.000-07:00

Answer: Depends on your particular situation. The concept of “waste” could apply in this divorce case, making your spouse liable to you for your portion of the wasted asset, i.e., half during a divorce case. However, waste is not always an easy thing to prove and varies from divorce case to divorce case. For example, if Bill Gates spends $200,000, it might not be considered community waste because it’s such a minor amount for him and his wife. For most people, throwing away that much cash is a serious matter and so a divorce court might be expected to address the $200,000 in the divorce by either offsetting other assets and debts to make up for it or ordering the wasting spouse to pay the other.

Wilcox & Wilcox, P.C.
Trent Wilcox
For the Firm

Phoenix office:
3030 N. Central Ave., Ste. 705
Phoenix, Arizona 85012
Ph: 602-631-9555
Fx: 602-631-4004

Goodyear office:
1616 N. Litchfield Rd., Ste. 240
Goodyear, Arizona 85338
Ph: 623-344-7880
Fx: 602-631-4004

Visit our website: www.wilcoxlegal.com

Disclaimer: Providing the above information does not establish an
attorney-client relationship. To create such a relationship, both the
attorney and potential client must sign a written fee agreement. The
information contained herein is meant only as general information and is not meant to be relied upon for the purpose of taking legal action. You should contact an attorney in person for further and specific information. Wilcox & Wilcox, P.C. attorneys are licensed in Arizona only except for personal injury attorney Robert N. Edwards, who is licensed in Arizona and Minnesota.

What is the Effect of My Divorce Decree on My Creditors?

2005-02-02T22:36:00.000-07:00

Answer: Not that much. Debts the community incurs remain community debts in the eyes of creditors. Although it seems harsh many times, both spouses will remain liable for a community debt even though the family court awards responsibility for that debt to one spouse or the other pursuant to a Decree of Dissolution of Marriage (divorce decree). Therefore, if the spouse ordered to pay in the divorce decree does not do so, creditors have recourse against the other spouse. On occasion (not frequently), a creditor will agree to not pursue a spouse based on the divorce decree; however, they have no legal obligation to do so. The law takes the stance that third party creditors should not suffer as a result of a couple’s bad relationship leading to a divorce.

Wilcox & Wilcox, P.C.
Trent Wilcox
For the Firm

Phoenix office:
3030 N. Central Ave., Ste. 705
Phoenix, Arizona 85012
Ph: 602-631-9555
Fx: 602-631-4004

Goodyear office:
1616 N. Litchfield Rd., Ste. 240
Goodyear, Arizona 85338
Ph: 623-344-7880
Fx: 602-631-4004

Visit our website: www.wilcoxlegal.com

Disclaimer: Providing the above information does not establish an attorney-client relationship. To create such a relationship, both the attorney and potential client must sign a written fee agreement. The
information contained herein is meant only as general information and is not meant to be relied upon for the purpose of taking legal action. You should contact an attorney in person for further and specific information. Wilcox & Wilcox, P.C. attorneys are licensed in Arizona only except for personal injury attorney Robert N. Edwards, who is licensed in Arizona and Minnesota.

Is It Always Necessary/Required to Establish a Primary Physical Custodian for the Children in a Divorce?

2005-01-18T22:47:00.000-07:00

Answer: No. Equal physical custody is a possibility in divorce, legal separation and paternity cases. When the family court orders both joint legal custody and equal parenting time, it is often referred to as shared custody.

Wilcox & Wilcox, P.C.
Trent Wilcox
For the Firm

Phoenix office:
3030 N. Central Ave., Ste. 705
Phoenix, Arizona 85012
Ph: 602-631-9555
Fx: 602-631-4004

Goodyear office:
1616 N. Litchfield Rd., Ste. 240
Goodyear, Arizona 85338
Ph: 623-344-7880
Fx: 602-631-4004

Visit our website: www.wilcoxlegal.com

Disclaimer: Providing the above information does not establish an
attorney-client relationship. To create such a relationship, both the
attorney and potential client must sign a written fee agreement. The
information contained herein is meant only as general information and is not meant to be relied upon for the purpose of taking legal action. You should contact an attorney in person for further and specific information. Wilcox & Wilcox, P.C. attorneys are licensed in Arizona only except for personal injury attorney Robert N. Edwards, who is licensed in Arizona and Minnesota.

Is it Legal to Bug or Tape Record Conversations in Arizona?

2005-01-06T13:38:00.000-07:00

Answer: I get quite a few inquiries at my law office about the legalities of recording phone or other conversations in Arizona. In particular, the issue arises frequently in family law cases where child custody is at issue. Related to the recording issue is the "bugging" issue.

There are a number of variables that affect the answer to the central question, whether it is legal to either record or even bug. First, bugging and recording are two different issues under Arizona law, often related, but also potentially very different under the law. Second, the laws regarding bugging and recording vary by jurisdiction so what is legal in one state may be illegal in another. As well, the federal law may vary from the states' laws.

A. Bugging, otherwise known as wiretapping, typically means placing a device on a phone that allows one to eavesdrop on a conversation or other transmission. Bugging is considered illegal almost all of the time for two reasons primarily: First, it allows someone to listen to a private conversation between two or more unsuspecting parties. Second, bugs are usually placed without permission so you have a number of infractions inherent in such trespass-like activity. If you suspect someone has placed a bug on your phone or other device, you should call the police.

B. In the case of a telephone or in-person conversation, recording simply means making a copy of the conversation between two or more people. Recording is illegal in Arizona if NO party to the conversation knows that the conversation is being recorded. However, in Arizona, and this varies by state, if one party to the conversation knows that the conversation is being recorded, it is not illegal. Thus, if someone tape recorded a phone call or conversation involving him/herself and another person, that's legal in Arizona. If the same person taps into a phone line and records a conversation between two people who are unaware they are being recorded, it is ILLEGAL. Arizona and federal law are similar in this respect; however, recording conversations is illegal in certain other states unless all parties know of the recording and consent. There may be some cross-jurisdictional issues involved when tape recording a conversation across state or national boundaries. Prior to tape recording, I recommend that you consult an attorney in the appropriate jurisdiction.

Wilcox & Wilcox, P.C.
Trent Wilcox
For the Firm

Phoenix office:
3030 N. Central Ave., Ste. 705
Phoenix, Arizona 85012
Ph: 602-631-9555
Fx: 602-631-4004

Goodyear office:
1616 N. Litchfield Rd., Ste. 240
Goodyear, Arizona 85338
Ph: 623-344-7880
Fx: 602-631-4004

Visit our website: www.wilcoxlegal.com

Disclaimer: Providing the above information does not establish an attorney-client relationship. To create such a relationship, both the attorney and potential client must sign a written fee agreement. The information contained herein is meant only as general information and is not meant to be relied upon for the purpose of taking legal action. You should contact an attorney in person for further and specific information. Wilcox & Wilcox, P.C. attorneys are licensed in Arizona only except for personal injury attorney Robert N. Edwards, who is licensed in Arizona and Minnesota.

What is the Biggest Mistake Fathers Make in Paternity Cases?

2005-01-03T09:07:00.000-07:00

Answer: Delaying. Many fathers wait too long to legally establish paternity in the family court. While many fathers do not understand the importance of having the family court declare them the legal father of their child and delay on that basis, other fathers simply wait until the relationship with their child's mother goes south or a process server serves them (the father) with papers for child support, child custody and/or visitation. This results in substantial problems that could have been avoided by dealing with the issue under the applicable Arizona family laws right away.

Some of the problems delay in establishing paternity can cause include decreased chance of primary physical or joint custody, child support arrearages, an appearance of disinterest and the impression that the Arizona courts are not fair to fathers. Let me explain:

Child Custody and Visitation: The courts like consistency in a child's life. Thus, if a father does not does not have a court order declaring him to be the legal father, it is very likely that the mother has been allowed to prevail on disputed issues regarding those entities that require proof of a parent's legal rights to make decisions. Such entities include schools, daycares, medical facilities, the Office of Vital Records and the like. Thus, it is likely that when it comes to making its decision about legal custody, the family courts usually go with the perceived status quo.

Similarly, if a father does not have anything done officially in the courts to solidify his rights, the mother has complete control over visitation and it is very possible that the father will be having access to his child less than he would prefer. So, as with custody, the family court may opt for the status quo, meaning that the father will receive the [possibly minimal] visitation he received up to the time the family court became involved. Thus, establishing legal rights early can help prevent a negative status quo. Of course, many fathers have their children residing with them or while also living with the child's mother and that is a very relevant factor the court considers when determining child custody and visitation, regardless of when the family court officially declares paternity and visitation rights.

Child Support Arrearages (Arrears): At the time the family court establishes legal paternity (via an "Order of Paternity"), the family court almost always also establishes child support. Like it or not, the family court also routinely orders that child support be made retroactive to a certain date. How far back the family court can go in retroactively apply child support varies based on a case's particular facts but the normal rule of law is three years. Thus, if a father either paid nothing or underpaid pursuant to the Arizona Child Support Guidelines, the father will have to pay both his current support and the arrears. In addition, the court can order that the father pay costs associated with the child's birth and the mother's expenses related thereto. Therefore, it is best to legally establish paternity quickly to avoid having large child support arrearages and other amounts owed.

The Appearance of Disinterest: It is possible that when a father waits too long to officially request his legal rights to his child, a family court judge could see it as a sign of disinterest. This varies from situation to situation but in the case where a father does not live with his child, it looks better when the father shows enough interest to study up on his legal rights and initiate court proceedings to officialize custody and visitation (parental access), decision-making rights and child support. In particular, judges may see in negative terms a father's request for visitation and other legal rights done only after a mother brings an action in the family court to establish paternity and child support.

Unfairness to Fathers: There may a number of factors that make some believe that the Arizona family courts are not fair to fathers when it comes to child custody, child support and parenting time. Obviously, that is a big debate. However, my personal experience shows me that the perception is worse for those fathers who delay establishing paternity. As discussed above, delay can mean that mothers have an advantage over fathers.

Wilcox & Wilcox, P.C.
Trent Wilcox
For the Firm

Phoenix office:
3030 N. Central Ave., Ste. 705
Phoenix, Arizona 85012
Ph: 602-631-9555
Fx: 602-631-4004

Goodyear office:
1616 N. Litchfield Rd., Ste. 240
Goodyear, Arizona 85338
Ph: 623-344-7880
Fx: 602-631-4004

Visit our website: www.wilcoxlegal.com

Disclaimer: Providing the above information does not establish an
attorney-client relationship. To create such a relationship, both the
attorney and potential client must sign a written fee agreement. The
information contained herein is meant only as general information and is not meant to be relied upon for the purpose of taking legal action. You should contact an attorney in person for further and specific information. Wilcox & Wilcox, P.C. attorneys are licensed in Arizona only except for personal injury attorney Robert N. Edwards, who is licensed in Arizona and Minnesota.

Who Gets Custody in Arizona - Mothers or Fathers?

2004-12-29T08:55:00.000-07:00

Answer: This is a very controversial family law topic in Arizona and other states but I will share based on my experiences in the family courts and my academic learnings. First, let's define what we mean when we say custody. Most people when they talk about receiving custody really mean the party who the court designates as the primary physical custodian in a family law case, in other words, the parent/person with whom the child or children reside most of the time. Thus, the non-custodial parent in a family law case would be the one who exercises visitation (now commonly called parental access or parenting time) with the children.

Second, as a matter of background, there were at least a couple of national family law studies done some years ago that indicate fathers who contest child custody actually were successful more than half the time, meaning that fathers who fight for custody received the primary physical custodian designation more than 50% of the time. The reasons for this could vary, of course. One explanation could simply be that the fathers who fight for child custody actually have a good reason for doing so, in other words a very clear-cut issue that lends itself to proof in family court. Examples of such things might include illegal drug use, incarceration for a criminal offense or provable abuse. Another explanation could be that the fathers in the studies who fought for child custody have evidence that they were the primary care-givers for the children and thus can argue for continuing the status quo.

An important distinction with the studies is that they addressed only the cases involving fathers who fight for custody, not all cases. Thus, impliedly, it appears that many men do not fight for custody. Again, there could be several factors influencing fathers not to contest custody, including the presence on their part of the factors in the above paragraph and, I believe, an additional one: That many fathers do not argue custody because they are under the impression that the mother almost always wins and, therefore, believe contesting the matter is a waste of time, money, emotions and effort.

Having written the above as background, it appears that the Arizona Superior Courts' family law divisions are changing in two ways. First, the family court appears to be moving toward 50/50 time with the children as a matter of policy. In other words, where two parents appear basically equal, the court is inclined to treat them equally when making custody and access decisions. (There is even a present movement in the Arizona Legislature to make equal time the starting point for all child custody decisions, meaning that a judge would have to justify any variance from equal time in a family law case.) Second, as older family division judges retire and new judges are appointed, the decision-makers tend to have a more egalitarian view of custody and raising children; i.e., the present judges were not brought up to believe that females stay at home with the children and men contributed primarily by earning money to pay the bills. Now, it is important to note, I think, that the courts still consider the status quo or history of each particular family in determining the primary physical custodian. For example, if one parent has dedicated his/her time to the children and the other parent has been uninvolved, the family court will often preserve that status and determine a non-equal parenting schedule. Likewise, it is worth noting that family court judges are individuals with their own perspectives on child-rearing, child custody and related issues that result from from their own experiences and personal beliefs -that's why two different family court judges hearing the same case can come to completely opposite conclusions.

In summary, it appears to me that the most judges in the Arizona Superior Courts these days are giving both parents a fair shake when it comes to child custody. But updated and local child custody studies are needed to benefit both the public and the court system.

Wilcox & Wilcox, P.C.
Trent Wilcox
For the Firm

Phoenix office:
3030 N. Central Ave., Ste. 705
Phoenix, Arizona 85012
Ph: 602-631-9555
Fx: 602-631-4004

Goodyear office:
1616 N. Litchfield Rd., Ste. 240
Goodyear, Arizona 85338
Ph: 623-344-7880
Fx: 602-631-4004

Visit our website: www.wilcoxlegal.com

Disclaimer: Providing the above information does not establish an
attorney-client relationship. To create such a relationship, both the
attorney and potential client must sign a written fee agreement. The
information contained herein is meant only as general information and is not meant to be relied upon for the purpose of taking legal action. You should contact an attorney in person for further and specific information. Wilcox & Wilcox, P.C. attorneys are licensed in Arizona only except for personal injury attorney Robert N. Edwards, who is licensed in Arizona and Minnesota.

What if I Cannot Afford a Lawyer or Prefer Not to Use One?

2004-12-26T08:57:00.000-07:00

Answer: There are numerous divorce and other legal forms available on the Maricopa County website. Topics relevant to Arizona family law issues include divorces with or without children, custody modifications, child support forms and other Arizona family court forms. Other counties may have forms available, too. Go to http://www.superiorcourt.maricopa.gov/ssc/forms/forms_available.asp to check out what is available. Because I have seen errors on legal papers purchased elsewhere, I recommend using the court's own forms rather than buying forms at a bookstore or via the Internet. Plus, the court's forms are available to download for free. Keep in mind that other Arizona counties may have requirements for their divorce and family law documents that differ somewhat from Maricopa County so Maricopa County's legal forms may not work elsewhere. Of course, other states require their own divorce and family law forms as each state's divorce laws and family courts differ from one another.

Wilcox & Wilcox, P.C.
Trent Wilcox
For the Firm

Phoenix office:
3030 N. Central Ave., Ste. 705
Phoenix, Arizona 85012
Ph: 602-631-9555
Fx: 602-631-4004

Goodyear office:
1616 N. Litchfield Rd., Ste. 240
Goodyear, Arizona 85338
Ph: 623-344-7880
Fx: 602-631-4004

Visit our website: www.wilcoxlegal.com

When can a paternity case be commenced?

2004-12-21T13:50:00.000-07:00

Answer: Arizona Revised Statute §25-804 allows either parent to institute paternity proceedings during the pregnancy. Proceedings to establish child support must be started before the child’s 18th birthday, except possibly in the case of a physically or mentally disabled child. Interestingly, an adult may even bring an action to establish the adult's biological parent. A.R.S. §25-803(B).

Wilcox & Wilcox, P.C.
Trent Wilcox
For the Firm

Phoenix office:
3030 N. Central Ave., Ste. 705
Phoenix, Arizona 85012
Ph: 602-631-9555
Fx: 602-631-4004

Goodyear office:
1616 N. Litchfield Rd., Ste. 240
Goodyear, Arizona 85338
Ph: 623-344-7880
Fx: 602-631-4004

Visit our website: www.wilcoxlegal.com

Disclaimer: Providing the above information does not establish an attorney-client relationship. To create such a relationship, both the attorney and potential client must sign a written fee agreement. The information contained herein is meant only as general information and is not meant to be relied upon for the purpose of taking legal action. You should contact an attorney in person for further and specific information. Wilcox & Wilcox, P.C. attorneys are licensed in Arizona only except for personal injury attorney Robert N. Edwards, who is licensed in Arizona and Minnesota.

Just Served: Now What?

2004-12-14T19:26:00.000-07:00

Question: I was just served with Arizona divorce papers; what needs to be done to protect myself?

Answer: You must file a responsive pleading to your spouse's divorce petition, also known as an “Answer” within the applicable timeframe. If you were served in Arizona with the divorce papers, then you must file your Answer within 20 days of the date of service; if served outside Arizona, you have 30 days to file your Answer. Failure to timely file allows the other party in the divorce proceedings to apply for default, meaning that you cannot participate in further divorce proceedings and the court may award your spouse everything for which they ask. Our advice is to file an Answer to the divorce proceeding immediately because you can always attempt to settle your divorce case after you preserve your rights. Keep in mind that you may be served with papers requiring your appearance at a family court hearing well before the 20-day period expires. In that case, you should seek the advice of an attorney but also make sure that you appear in court to avoid the family court entering a negative order without hearing your side of the story.

Wilcox & Wilcox, P.C.
Trent Wilcox
For the Firm

Phoenix office:
3030 N. Central Ave., Ste. 705
Phoenix, Arizona 85012
Ph: 602-631-9555
Fx: 602-631-4004

Goodyear office:
1616 N. Litchfield Rd., Ste. 240
Goodyear, Arizona 85338
Ph: 623-344-7880
Fx: 602-631-4004

Visit our website: www.wilcoxlegal.com

Disclaimer: Providing the above information does not establish an attorney-client relationship. To create such a relationship, both the attorney and potential client must sign a written fee agreement. The information contained herein is meant only as general information and is not meant to be relied upon for the purpose of taking legal action. You should contact an attorney in person for further and specific information. Wilcox & Wilcox, P.C. attorneys are licensed in Arizona only except for personal injury attorney Robert N. Edwards, who is licensed in Arizona and Minnesota.

Preliminary Injunction & Temporary Orders

2004-12-07T16:13:00.000-07:00

Question: If the divorce isn't going to be final for months or more, are there any rules until then?

Answer: Yes. First, under Arizona divorce law, many rules go into effect via the “Preliminary Injunction.” This Injunction is part of every properly filed divorce action in Arizona. Second, many parties to a divorce want more specific rules in place until the divorce becomes final. The court hands down these case-specific rules after one or both parties to a divorce case request temporary orders. A request for temporary orders may require a brief court hearing if the parties cannot agree. These temporary orders may address child support, custody, parental access, spousal maintenance (alimony), payment of debts, use of the marital residence and other issues. The temporary orders are only valid until the court finalizes the divorce.

Wilcox & Wilcox, P.C.
Trent Wilcox
For the Firm

Phoenix office:
3030 N. Central Ave., Ste. 705
Phoenix, Arizona 85012
Ph: 602-631-9555
Fx: 602-631-4004

Goodyear office:
1616 N. Litchfield Rd., Ste. 240
Goodyear, Arizona 85338
Ph: 623-344-7880
Fx: 602-631-4004

Visit our website: www.wilcoxlegal.com

Disclaimer: Providing the above information does not establish an attorney-client relationship. To create such a relationship, both the attorney and potential client must sign a written fee agreement. The information contained herein is meant only as general information and is not meant to be relied upon for the purpose of taking legal action. You should contact an attorney in person for further and specific information. Wilcox & Wilcox, P.C. attorneys are licensed in Arizona only except for personal injury attorney Robert N. Edwards, who is licensed in Arizona and Minnesota.

How long does a divorce in Arizona take?

2004-12-07T13:23:00.000-07:00

Answer: In Arizona, an uncontested divorce, one in which the parties agree on all aspects of the divorce, usually takes about 90 to 120 days. Arizona has a 60-day waiting period following the divorce filing and service of the initial dissolution documents. Sometime after the 60 days, the family court, either pursuant to a hearing or upon submission of documents, will sign the final dissolution documents. If the dissolution is contested, it usually takes substantially longer, typically between six and eighteen months; however, some divorces take years.

Wilcox & Wilcox, P.C.
Trent Wilcox
For the Firm

Phoenix office:
3030 N. Central Ave., Ste. 705
Phoenix, Arizona 85012
Ph: 602-631-9555
Fx: 602-631-4004

Goodyear office:
1616 N. Litchfield Rd., Ste. 240
Goodyear, Arizona 85338
Ph: 623-344-7880
Fx: 602-631-4004

Visit our website: www.wilcoxlegal.com

Disclaimer: Providing the above information does not establish an attorney-client relationship. To create such a relationship, both the attorney and potential client must sign a written fee agreement. The information contained herein is meant only as general information and is not meant to be relied upon for the purpose of taking legal action. You should contact an attorney in person for further and specific information. Wilcox & Wilcox, P.C. attorneys are licensed in Arizona only except for personal injury attorney Robert N. Edwards, who is licensed in Arizona and Minnesota.

Welcome to this new Blawg!

2004-11-27T10:10:00.000-07:00

I created this blog (some lawyers call it a "blawg") to provide some day-to-day information that may be helpful to those dealing with family law issues in Arizona. I'm hopeful that eventually people will be able to find a substantial amount of helpful divorce, child custody, child support, spousal maintenance and other Arizona legal information here. Please feel free to notify me of legal / divorce topics that may be of interest so that I can address them.

Of course, the posted information is my personal opinions, general in nature and may not apply to anyone's particular divorce or other legal circumstance so you should consult an Arizona lawyer in person for information that applies to your particular facts. Please do not take legal action based on what you find here; instead, simply use it as a point at which to start a discussion with a lawyer who might be handling your case. And please be aware that Arizona law changes and so I cannot guarantee the currency of the legal information on here, particularly for older posts as this develops. Since I only practice in Arizona, the information contained herein will apply to Arizona and not to any other state or jurisdiction.

Finally, the spammers found this blog and began their mass postings to sell whatever it is that they sell and so I have blocked posts. However, please email any questions or comments and I will do my best to address them. Thank you for understanding!

Wilcox & Wilcox, P.C.
Trent Wilcox
For the Firm

Phoenix office:
3030 N. Central Ave., Ste. 705
Phoenix, Arizona 85012
Ph: 602-631-9555
Fx: 602-631-4004

Goodyear office:
1616 N. Litchfield Rd., Ste. 240
Goodyear, Arizona 85338
Ph: 623-344-7880
Fx: 602-631-4004

Visit our website: www.wilcoxlegal.com

We also have business and collections departments; for business and collections information, please visit www.arizonacollectionslawyer.com.

Disclaimer: Providing the above information does not establish an attorney-client relationship. To create such a relationship, both the attorney and potential client must sign a written fee agreement. The information contained herein is meant only as general information and is not meant to be relied upon for the purpose of taking legal action. You should contact an attorney in person for further and specific information. Wilcox & Wilcox, P.C. attorneys are licensed in Arizona only except for personal injury attorney Robert N. Edwards, who is licensed in Arizona and Minnesota.