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What can I do if I have requested items from the opposing part or counsel in my Arizona family law case, but they won’t answer my requests?

If a formal discovery or production request was made on the opposing party or their counsel, but they refuse to turn the items over without proper objection, then a “motion to compel” can be filed with the court.

Rule 65, Arizona Rules of Family Law Procedure, (“ARFLP”) allows for a motion to compel to be filed if a party has failed to make disclosure required by Rule 49, 50, 57, 58, 60, or 61.  If a motion to compel must be sought, then the requesting party may also request that the court order appropriate sanctions against the offending party.

Keep in mind, that no Motion to Compel may be sought or considered unless a separate statement of the requesting party is attached to the motion certifying that, after personal consultation and good faith efforts to do so, the parties have been unable to satisfactorily resolve the matter.

If the requesting party is represented by counsel and/or has incurred attorney fees and costs by filing an appropriate motion to compel, then the court, after affording an opportunity for the other side to be heard on the issue, can require the party whose conduct necessitated the motion to pay the requesting party the reasonable expenses incurred in making the motion, including attorneys’ fees, unless the court determines that the motion was filed without the requesting party first making a good faith effort to obtain the disclosure or discovery without court action, or that the opposing party’s nondisclosure, response, or objection was substantially justified or that other circumstances make an award of expenses unjust.

This is just a basic overview of the relief available. For more specific information regarding this or any other family law issue it is suggested that you contact the discounted, experienced attorneys at the law firm of Ariano & Reppucci, PLLC.

In Maricopa County, Arizona, What is a Family Law Settlement Conference?

A settlement conference is an alternative dispute resolution mechanism that the Court will generally appoint and refer parties to partake in prior to a trial or evidentiary hearing. All pre and post decree dissolution cases, paternity and maternity matters, as well as grandparent visitation matters are eligible for referral for a settlement conference.

A Judge Pro Tempore is appointed by the court to conduct the conference and is likewise provided with the authority to enter stipulated orders pursuant to Rules 66 and 67, Arizona Rules of Family Law Procedure (“ARFLP). A Judge Pro Tempore is a neutral attorney who is court appointed to perform specific duties for the courts based on their experience and qualifications. Unlike a parenting conference, parties are allowed and advised to bring counsel with them to this conference. The experienced family law attorneys at Ariano & Reppucci, PLLC provide reliable, proven, and discounted representation for settlement conferences.

During this pre-trial meeting, the Judge Pro Tempore will act as a neutral facilitator, who will evaluate the strengths and weaknesses of both sides in efforts to assist the parties in reaching agreement(s). At a settlement conference, be prepared to provide a general description of the issues in the case, including your views; explain all previous negotiations and results; discuss the possible consequences if your case proceeds to trial; bring relevant financial, property, debt, and income information; bring any other relevant information for discussion, and communicate your needs fully, honestly, and respectfully with the judge pro tempore and the other party and/or their counsel.

If full or partial agreements are reached during the conference, then the ADR office will alert the assigned judge that the parties participated in a settlement conference and a full or partial agreement was reached. Keep in mind that a trial date may be vacated only if full agreements have been reached, resolving all matters.

This is just a basic overview of the settlement conference process. For more information it is suggested that you meet with an experienced Arizona family law attorney. Our law firm is well versed in settlement conference procedure and can be reached directly at 602-515-0841.

JURISDICTION TO MODIFY CHILD SUPPORT

The following decision is interesting and parties to actions which originally began and Arizona but where all the parties no longer live within the State should take the time to review the following.

State (DES) v. Tazioli, — P.3d. —, 2011 WL 239547 (Ariz. App. Div. 1)

Arizona is the issuing state of the child support order (2000). Mother and Father are each now permanently and separately residing in other states. Child resides with Mother. Father filed in Arizona a motion to modify child support because he does not know where Mother and child reside (she has a protected address). Mother refused to appear at the hearing and “submit to the jurisdiction of Arizona.” The lower court determined that it had continuing, exclusive jurisdiction over the modification of child support issue.

Because Mother and Father are no longer residents of Arizona, does Arizona have continuing, exclusive jurisdiction over the issue of child support modification?

No. Pursuant to A.R.S. Section 25-1225, the trial court lacked jurisdiction to modify the child support order because “neither party currently resides in Arizona and Mother refuses to consent to jurisdiction in Arizona.”

Arizona has no (and has not had for some years) sufficient nexus with the parties or child to assert its jurisdiction.

If your situation is similar to the above case or if you are not exactly sure whether it is or not, please contact the experienced Arizona family law firm of Ariano & Reppucci, PLLC today for your free consultation and discounted legal representation.

What Items Must I Disclose In My Arizona Family Law Case?

First and foremost, today’s Blog post, although highly informative is extremely dense and better described as boring. With this stated, if you are a party to a Family Law matter in Arizona and your case requires disclosure, then I would recommend the following as a must read.

Rule 49, Arizona Rules of Family Law Procedure (“ARFLP”) govern disclosure and discovery practice in Arizona Family court matters.  Rule 49 sets forth that the requirements of the Rule are minimum disclosure requirements for every family law case. Unless otherwise provided for in the Rule or agreed to by the parties, within forty (40) days after the filing of a response to an initial petition, each party shall disclose in writing to every other party the information set forth below:

A. Resolution Statement. Each party shall disclose a written Resolution Statement in a form that substantially complies with Rule 97, Form 4 or 5, as applicable, setting forth any agreements and a specific, detailed position the party proposes to resolve all issues in the case, without argument in support of the position.

B. Child Support. In a case in which child support is an issue, each party shall disclose the following information:

1. a fully completed Affidavit of Financial Information on a form substantially in compliance with Rule 97, Form 2;

2. proof of income of the party from all sources, specifically including complete tax returns, W-2 forms, 1099 forms, and K-1 forms, for the past two (2) completed calendar years, and year-to-date income information for the current calendar year, including, but not limited to, year-to-date pay stub, salaries, wages, commissions, bonuses, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, social security benefits, worker’s compensation benefits, unemployment insurance benefits, disability insurance benefits, recurring gifts, prizes, and spousal maintenance;

3. proof of court-ordered child support and spousal maintenance actually paid by the party in any case other than the one in which disclosure is being provided;

4. proof of all medical, dental, and vision insurance premiums paid by the party for any child listed or referenced in the petition; 

5. proof of any child care expenses paid by the party for any child listed or referenced in the petition;

6. proof of any expenses paid by the party for private or special schools or other particular education needs of a child listed or referenced in the petition; and

7. proof of any expenses paid by the party for the special needs of a gifted or handicapped child listed or referenced in the petition.

C. Spousal Maintenance and Attorneys’ Fees and Costs. If either party has requested an award of spousal maintenance or an award of attorneys’ fees and costs, each party shall disclose the following information:

1. a fully completed Affidavit of Financial Information on a form substantially in compliance with Rule 97, Form 2; and

2. those documents set forth in subdivision B(2) above.

D. Property. Unless the parties have entered into a written agreement disposing of all property issues in the case, or no property is at issue in the case, each party shall provide to the other the following information in every action for dissolution of marriage or for legal separation:

1. copies of all deeds, deeds of trust, purchase agreements, escrow documents, settlement sheets, and all other documents that disclose the ownership, legal description, purchase price and encumbrances of all real property owned by any party;

2.copies of all monthly or periodic bank, checking, savings, brokerage and security account statements in which any party has or had an interest for the period commencing six (6) months prior to the filing of the petition and through the date of the disclosure;

3. copies of all monthly or periodic statements and documents showing the value of all pension, retirement, stock option, and annuity balances, including Individual Retirement Accounts, 401(k) accounts, and all other retirement and employee benefits and accounts in which any party has or had an interest for the period commencing six (6) months prior to the filing of the petition and through the date of the disclosure, or if no monthly or quarterly statements are available during this time period, the most recent statements or documents that disclose the information;

4. copies of all monthly or periodic statements and documents showing the cash surrender value, face value, and premiums charged for all life insurance policies in which any party has an interest for the period commencing six (6) months prior to the filing of the petition and through the date of the disclosure, or if no monthly or quarterly statements are available for this time period, the most recent statements or documents that disclose the information;

5. copies of all documents that may assist in identifying or valuing any item of real or personal property in which any party has or had an interest for the period commencing six (6) months prior to the filing of the petition, including any documents that the party may rely upon in placing a value on any item of real or personal property;

6. copies of all business tax returns, balance sheets, profit and loss statements, and all documents that may assist in identifying or valuing any business or business interest for the last two (2) completed calendar or fiscal years with respect to any business or entity in which any party has or had an interest; and

7. a list of all items of personal property, including, but not limited to, household furniture, furnishings, antiques, artwork, vehicles, jewelry and similar items in which any party has an interest, together with the party’s estimate of current fair market value (not replacement value) for each item.

E. Debts. Unless the parties have entered into a written agreement disposing of all debt issues in the case, each party shall provide to the other the following information in every action for dissolution of marriage or for legal separation:

1. copies of all monthly or periodic statements and documents showing the balances owing on all mortgages, notes, liens, and encumbrances outstanding against all real property and personal property in which the party has or had an interest for the period commencing six (6) months prior to the filing of the petition and through the date of the disclosure, or if no monthly or quarterly statements are available during this time period, the most recent statements or documents that disclose the information; and

2. copies of credit card statements and debt statements for all months for the period commencing six (6) months prior to the filing of the petition and through the date of the disclosure.

F. Disclosure of Witnesses. Each party shall disclose names, addresses, and telephone numbers of any witness whom the disclosing party expects to call at trial, along with a statement fairly describing the substance of each witness’s expected testimony. A party shall not be allowed to call a witness who has not been disclosed at least sixty (60) days before trial, or such different period as may be ordered by the court.

G. Disclosure of Expert Witnesses. Each party shall disclose the name and address of each person whom the disclosing party expects to call as an expert witness at trial, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which  the expert is expected to testify, a summary of the grounds for each opinion, the qualifications of the witness, and the name and address of the custodian of copies of any reports prepared by the expert. A party shall not be allowed to call an expert witness who has not been disclosed at least sixty (60) days before trial or such different period as may be ordered by the court.

H. Continuing Duty to Disclose. The duty described in this rule shall be a continuing duty, and each party shall make additional or amended disclosures whenever new or different information is discovered or revealed. Such additional or amended disclosures shall be made not more than thirty (30) days after the information is revealed to or discovered by the disclosing party.

I. Additional Discovery. Nothing in the minimum requirements of this rule shall preclude relevant additional discovery on request by a party in a family law case, in which case further discovery may proceed as set forth in Rule 51.

For help with preparation of disclosure items listed above or for further clarification of the items listed above or for questions regarding any other Arizona Family Law matter please contact Attorney Ryan M. Reppucci of the Discount Law Firm of Ariano & Reppucci, PLLC at 602-515-0841.  

Alternative Dispute Resolution (ADR) and Arizona Family Law Cases.

If you are or have been recently involved in a Domestic Relations case in Arizona, then chances are you have experienced firsthand some variation of ADR. The purpose of ADR is to encourage resolution of family law cases using non-adversarial means to the greatest extent possible, whether through a program overseen, administered, or authorized by the court, or by a person or agency independent of the court. See Rule 66, ARFLP.

They court may provide or authorize ADR processes, that may include, but are not necessarily limited to, the following:

 1. “Arbitration” means a process in which parties agree to submit the issue(s) in the dispute to a neutral third party or parties retained by the parties for a binding decision, in accordance with the Arizona Arbitration Act, A.R.S. §§ 12-1501 to 1518.

2. “Parenting Coordinator” is a person appointed by the court to assist with implementation of court orders by making recommendations to the court regarding implementation, clarification, modification, and enforcement of custody and parenting time orders.

3. “Family Law Master” is a person appointed by the court, including a family law conference officer, to take evidence on one or more disputed issues and submit a report to the court containing findings of fact and conclusions of law.

4. “Mediation” means a voluntary confidential process in which parties enter into one or more private discussions with a neutral third party to resolve the dispute. Mediation can be conducted by a conciliation court counselor, a mediator assigned by the court from a court roster of mediators, or a private mediator retained by the parties.

5. “Open Negotiation” means a process of non-confidential negotiations between the parties conducted by a neutral third party (the negotiator) to attempt to resolve their dispute. In the event the parties are unable to resolve some or all of the issues in the dispute, the negotiator reports the disputed issues to the court.

6. “Settlement Conference” means a confidential process in which parties to a dispute meet with a judge, commissioner, or judge pro tempore acting as a neutral third party to engage in settlement discussions.

7. “Other ADR Processes.” The court may create, administer, approve, or authorize other ADR processes designed to provide the parties, who are or have been involved in, or are contemplating the filing of a family law matter, with an opportunity to resolve their dispute without court litigation.

Upon motion of the court or motion of either party to the action, the court may direct the parties to participate in one or more ADR processes listed above or to an otherwise private dispute resolution process agreed upon by the parties.

ADR generally affords parties an opportunity to negotiate and settle differences without intervention from the court. If ADR processes fail, then ultimately the court will be left with the daunting task of deciding the merits of a family law case. Under the latter, generally one party is left feeling as if they have “lost” the case, where with ADR, although concessions may be made, the parties generally both leave feeling as if they have gained something.

For more information on specific ADR processes, or to speak with an attorney versed in the area regarding any other family law issue, it is suggested that you contact the experienced, discounted, affordable family law attorneys at Ariano & Reppucci, PLLC.

Can Overtime Be Factored Into Gross Income For Arizona Child Support Calculations?

In Arizona, child support amount(s) are determined by the Arizona Child Support Guidelines (“Guidelines”), effective January 1, 2005. The purpose of the guidelines “are to establish a standard of support for children consistent with the reasonable needs of children and the ability of parents to pay.” See Guidelines ¶ 1.

In factoring child support, among other considerations, the Guidelines look to each parties gross income coupled with the amount of court awarded parenting time. ¶ 5 of the Guidelines lays out a rather lengthy definition and calculation for determining “Gross Income.” Parties often want to know, in addition to the standard definition for Gross Income, can income from overtime and/or a second job be added to a parties Gross Income total?

In answer to this question, the Guidelines make clear that “[g]enerally, the court should not attribute income greater than what would have been earned from full-time employment.” The idea seems to be then that each parent should have the choice of working additional hours through overtime or at a second job without increasing the child support award. However, as explained below, sometimes this is not the case.

A clever and somewhat promising argument for attributing overtime and second job income into a parties gross total is that if that or those overtime and/or second job income is or has been historically earned from a regular schedule and is anticipated to continue much the same in the future, then the court may consider those amounts as actual income earned even though the adjusted amount would be greater than would have been earned by standard full time employment.

If you find yourself in a child support case in Arizona and overtime and/or second job income is apparent, it is strongly suggested that you meet with an experienced family law attorney. By meeting with an experienced family law attorney versed on the subject you may be able to better present reasons to the court why a standard income figure should be increased to include monies received from overtime and/or a second job.

For more information on this or any other Arizona Family Law matter, contact Ryan M. Reppucci at the discount Family Law Firm of Ariano & Reppucci, PLLC at 602-515-0841.

Legal Overview Regarding Arizona Jurisdictional Requirements, Grounds for Dissolution of Marriage (Divorce), and Expected Issues Which May Arise.

In Arizona, Dissolution of Marriage (“Divorce”) is governed by relevant sections of Title 25, Arizona Revised Statutes (“A.R.S.”). In particular, A.R.S. § 25-311 states that Arizona Superior Court’s are vested with original jurisdiction to hear and decide all matters pertaining to Divorce actions. In order for a Divorce action to be brought in a Superior Court, A.R.S. § 25-312 expresses that at the time the Divorce action is commenced, one of the parties to that action must have been domiciled in the State of Arizona for at least ninety (90) days prior to commencement of the action. “Domicile” is considered to mean that of being a permanent resident in a particular jurisdiction. For instance, a party to a Divorce action that is domiciled in Maricopa County, Arizona would have to commence the Divorce action in a Superior Court located within that county. The Domicile requirement is without regard to where the parties marriage occurred.

Arizona is considered a “no fault” State with regard to Divorce actions. For example, in Arizona, pursuant to A.R.S. § 25-316 one party to a Divorce must only demonstrate to the Court that the marriage is “irretrievably broken with no reasonable prospect of reconciliation.”

Parties to a Divorce action in Arizona must also be aware that Arizona is a community property jurisdiction. This means, that but for few exceptions, all property and/or debts acquired by the parties during the course of their marriage are subject to equitable division and allocation. Equitable is known to mean as close to 50/50 as possible. It should also be noted that property and/or debt acquired outside of the State of Arizona during the marriage is likewise subject to community property principals. Meaning that in determining equitable apportionment of marital property and/or debts, Arizona courts will characterize any assets and/or liabilities as if they were incurred in the State of Arizona. By doing this, Arizona courts can adhere to community property principals in equitably diving otherwise community property and/or liabilities equitably or as close to 50/50 as possible.

There are many other issues that may arise during the course of a Divorce action in Arizona. For instance, if the parties have children, then custody will be determined by the Court through application of the “best interest” factors listed in A.R.S. §§ 25-103, 25-403, and 25-403.03. Without too much explanation, it is the public policy of the State of Arizona, that absent evidence to the contrary, that it is in a child’s best interest to have substantial, frequent, meaningful and continuing parenting time with both parents. That both parents participate in decision-making about the child. Simply put, there is a presumption of joint custody in Arizona as related to child custody issues.

When children are involved in a Divorce action, in addition to child custody, the parties must be aware of Arizona child support laws. In calculating child support, Arizona courts must comply with the Arizona Child Support Guidelines. Without too much detail on this subject, child support will be factored using each parties gross monthly income(s), parenting time awarded, and other relevant and/or authorized deductions. There is an online calculator that can be used by parties to a Divorce action in Arizona to determine a preliminary child support amount.  

As a final consideration to Divorce actions in Arizona, parties must be aware of and consider the possibility of spousal maintenance or alimony. A.R.S. § 25-319 governs the issue of spousal maintenance and set forth several factors for the Court to consider in making a finding for or against such award. Unlike child support however, there is no spousal maintenance calculator and therefore judges are often left with the task of subjectively identifying an appropriate amount and duration based upon the relevant factors listed in A.R.S. § 25-319.

The above listed items should in no way be construed as an exclusive list of all issues and/or matters that can be expected to arise in a divorce action in Arizona. However, the above content is meant to provide a basic overview of the main issues that generally arise in Divorce actions in Arizona. In addition to these general issues, there are many procedural requirements and/or paths that parties can employ throughout a Divorce action in Arizona. For more information on Divorce procedure, please contact me direct.  

For more detailed answers, it is suggested that you contact an experienced Arizona family law attorney to discuss the specifics of your unique and individual matter prior to commencing a Divorce action in Arizona.

After reading this legal opinion / overview if you are left with unanswered questions or concerns, it is strongly suggested that you contact me direct so that we can speak at further length about your particular matter.

Why is my Arizona family court case being dismissed?

Rule 46 (B) of the Arizona Rules of Family Law Procedure (“ARFLP”) governs the dismissal of family court cases within Arizona. In particular, pro se (self represented) litigants in family matters, must remain aware that one hundred and twenty (120) days after filing of a petition, if no Motion to Set has been filed by either party, or if the court has not set the matter for trial, hearing, or conference, the court may issue a notice that the matter will be dismissed by the court after sixty (60) days without further notice.

It should be noted that if you have received a notice of dismissal from the court, you may file a motion seeking court permission for extension of the period described in your notice letter. Such requests are generally freely given, although the Rules state the period may be extended by the court for “good cause shown.”

If you have received a dismissal notice, but have yet to serve the Respondent, it is strongly suggested that you make arrangements to meet with an experienced Arizona Family Lawyer.  

In addition to the 120 days, a case may also be involuntarily dismissed for several other reasons. A non exclusive example demonstrating why one’s case may be involuntarily dismissed is for failure of the Petitioner to prosecute or to comply with the Rules of ARFLP or any court order.

Again, for more information on this or any other Arizona family law matter, contact attorney Ryan M. Reppucci, or Ariano & Reppucci, PLLC at www.familyattorneys-arizona.com or by calling 602-515-0841. Ariano & Reppucci, PLLC strives to be Arizona’s top 24 hour, discount, cheap, and affordable family law firm.

What Can I Do In Arizona If Someone Is Violating The Terms Of A Parenting Agreement?

In Arizona, if a party to a valid parenting agreement ordered by the court or through a Rule 69 Agreement is, has, or continues to violate the terms of a parenting plan agreement, then the non breaching party may be entitled to intervention from the court.

In particular, A.R.S. § 25-414 provides:

If the court, based on a verified petition and after it gives reasonable notice to an alleged violating parent and an opportunity for that person to be heard, finds that a parent has refused without good cause to comply with a visitation or parenting time order, the court shall do at least one of the following:

  1. Find the violating parent in contempt of court.
  2. Order visitation or parenting time to make up for the missed sessions.
  3. Order parent education at the violating parent’s expense.
  4. Order family counseling at the violating parent’s expense.
  5. Order civil penalties of not to exceed one hundred dollars for each violation. The court shall transmit monies collected pursuant to this paragraph each month to the county treasurer. The county treasurer shall transmit these monies monthly to the state treasurer for deposit into the alternative dispute resolution fund established by section 12-135.
  6. Order both parents to participate in mediation or some other appropriate form of alternative dispute resolution at the violating parent’s expense.
  7. Make any other order that may promote the best interests of the child or children involved.

Within twenty-five days of service of the petition the court shall hold a hearing or conference before a judge, commissioner or person appointed by the court to review noncompliance with a visitation or parenting time order.

In addition to any hearing that may be held by the Court, court costs and attorney fees incurred by the nonviolating parent associated with the review of noncompliance with a visitation or parenting time order shall be paid by the violating parent. In the event the custodial parent prevails, the court in its discretion may award court costs and attorney fees to the custodial parent.

It is strongly suggested that you meet with an experienced Arizona Family Law Attorney prior to filing your Petition with the Court pursuant to 25-414 so that the attorney can better determine whether you have enough documentary or testimonial evidence to demonstrate that the other party is in fact in breach of the parenting agreement. I say this because if such claim is brought and you ultimately cannot demonstrate with reasonable sufficiency to the Court that the other party is in fact in breach, then you may be ordered to reimburse to the other party their reasonably attorney fees and costs pursuant to A.R.S. §§ 25-324 and 25-414.

The experienced Arizona family law attorneys at the Law Firm of Ariano & Reppucci, PLLC can guide you through this or any other family law process. Ariano & Reppucci, PLLC is a discount boutique law firm that provides free consultations and many payment options to both potential and current clients. For more information please contact attorney Ryan M. Reppucci at 602-515-0841.

In Arizona Custody Cases, Can The Court Interview My Children?

The short answer is yes depending upon the age and development of the child requested to be interviewed. Rule 12, Arizona Rules of Family Law Procedure, (“ARFLP”), states:

[o]n motion of any party, or its own motion, the court may, in its discretion, conduct an in camera interview with a minor child who is the subject of a custody or parenting time dispute, to ascertain the child’s wishes as to the child’s custodian and as to parenting time. The interview may be conducted at any stage of the proceeding and shall be recorded by a court reporter or any electronic medium that is retrievable in perceivable form. The record of the interview may be sealed, in whole or in part, based upon good cause and after considering the best interests of the child. The parties may stipulate that the record of the interview shall not be provided to the parties or that the interview may be conducted off the record.

In addition to the ARFLP provision set forth above:

Arizona Revised Statutes § 25-405 allows for an in camera interview of a child to ascertain the child’s wishes as to the child’s custodian and as to parenting time. A record of the proceeding will be kept to ensure the integrity of the process, to allow for rebuttal information in appropriate cases, and to provide for appropriate appellate review. The definition of “record” is derived from A.R.S. § 25-1010(E).

It must be noted that an interview of child can go a long way in determining the child’s wishes, but that is just one factor the court will consider of many when making a determination regarding child custody. For a complete list of factors the court will consider in rendering a child custody decision review A.R.S. § 25-403.

It is sometimes a risky proposition in a custody battle to insist that a child be interviewed. For this reason it is strongly suggested that you meet with an experienced Arizona family attorney who can better provide you pros and cons prior to motioning the court. The law firm of Ariano & Reppucci, PLLC is a discount Phoenix based family law firm that can assist you in this process. Please contact at 602-515-0841 to schedule your free consultation today. Remember, we are open on the weekends and take phone calls 24 hours a day.

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