Scott David Stewart 2013-03-06 00:26:15
Concluding Your Case: Arizona Consent Decrees and Life After Divorce Scott David Stewart is a native Arizonan and the founding attorney and principal of the Law Offices of Scott David Stewart, PLLC – an Arizona divorce and family law firm with offices throughout the Valley in Phoenix, Chandler, Scottsdale and Peoria. This law firm has earned the trust and respect of clients in cases ranging from marital dissolution to complex property division, child custody, parental visitation, and child relocation disputes. Every case accepted by the Law Offices of Scott David Stewart receives personal attention, careful meticulous preparation, skilled negotiation, and aggressive litigation. Visit the firm’s website at http://www.sdsfamilylaw.com. In Arizona, there are two types of divorce decrees that are, at least arguably, consensual in nature. The default decree and the consent decree. The default decree is a consequence of an unanswered divorce petition. The spouses can privately agree that one will file for divorce, include their terms in the petition, and the other spouse will simply remain silent, abstaining from response or defense. In that sense, the default decree can be used as a consensual divorce device allowing the court to issue orders consistent with the petitioning spouse’s request for relief. The procedure for seeking a default decree is fairly simple. When there’s no response to the action, the petitioner applies for a default decree to which the other spouse has 10 days to respond. If there’s still no response, then the court will issue the default decree of dissolution of marriage. This, however, is not the same as a consent decree. CONSENT DECREES Family lawyers place divorce cases into two basic categories: contested and uncontested. • Contested Divorce. With a contested divorce, the disputed issues will be litigated with the trial judge deciding and ordering child custody, child support, spousal maintenance, property division, and so on, rendering a final Decree of Dissolution. • Uncontested Divorce. With an uncontested divorce – when the spouses agree on everything – the decree naturally follows by the consent of the parties. By agreeing to all the terms in a Consent Decree of Dissolution, the parties waive their right to trial. Not all negotiations begin amicably; sometimes couples need to work through their disagreements with patience and persistence. But when the negotiating, mediating, and conferencing is over, many will have reached agreement on all marital issues – from parenting plan to pension division. With separation agreement in hand, the parties submit the fruits of their labors to the court. When the judge signs the consent decree, the divorce is final. Benefits of the Consent Decree Every couple should be encouraged by their respective attorneys at each stage of the divorce to strive for reasonable agreement on every single issue. A consent decree incorporating the couple’s separation agreement and parenting plan should always be the objective. Some clear benefits of the consensual divorce include: • Less Family Conflict. Divorce and legal separation are frequently emotionally driven and stressful for both spouses and their children. With less conflict, it’s easier for the parties to move forward with their new lives. Certainly, the children’s best interests are often better served when parents avoid protracted child custody disputes. • Reduced Costs. Whenever spouses avoid litigation, they almost always save money. Attorneys should respect the family’s need to be conservative with their legal expenses. When one household is being divided into two new households, reducing cost is important to the parties’ future financial stability. • Parties Retain Control. The spouses retain control over the outcome of their case by making tough decisions and compromising. Knowing that the judge will decide any unresolved issues for them should be sufficient motivation for most parties to reach agreement on all pertinent family matters. Requirements of the Consent Decree To pass judicial muster, the consent decree must be fair and reasonable with an equitable division of property. When there are minor children, the custody, child support, and parenting time agreements must be in the children’s best interests. Here are some other requirements worth noting: • Child Custody. The decree must include a parenting plan or provision for legal decision making, parenting time, medical insurance coverage, how parents will pay for non-covered healthcare expenses, and the like. The parent to claim the children as dependents for income tax purposes would also be included. Parents must submit certificates of completion of parent information program classes before the court will sign the decree. • Child Support. Minimally, the parents must follow the Arizona Child Support Guidelines for an order of child support, although they can agree to an amount above or below what the guidelines mandate. An order of assignment of wages and obligor’s employer information is also required. • Asset and Debt Division. The couple’s community property is listed along with their debts (including responsibility for taxes), all described in detail for division. Separate property is also identified and allocated. • Spousal Maintenance. If spousal support is to be awarded, then details will include who shall pay, how much, when it will terminate, and whether the maintenance order can be modified later. The consent decree ends the couple’s legal process and marks the beginning of a new way of life for both. LIFE AFTER DIVORCE Moving on with life after divorce means letting go of lingering hard feelings aimed at a former spouse (or the former spouse’s attorney). Blame is toxic, serving only to hinder one’s ability to accept change, take on new responsibilities, and move forward with important goals. Always offer your clients a referral list of advisors, counselors, and specialists in various fields who can help them acclimate in positive and healthy ways. Professionals in other fields can help them break free from the cycle of painful emotions, negative thoughts, and fears about the future. Consider referring your clients to a financial advisor, insurance agent, and estate planning attorney. Every newly divorced client needs to establish a budget, reconsider investments, and regain financial control. Similarly, he or she should create or revise an estate plan and reexamine insurance coverage. Although some changes may be made without violating the preliminary injunction, many investment, insurance, and estate plan revisions must wait until the divorce is final. Changing Insurance Coverage When circumstances change significantly – as with divorce – insureds should review their automobile, homeowner’s, life, and disability insurance coverage. Here’s what to expect: • COBRA. If one party is covered by the other’s employer insurance program, then the divorce is a “qualifying event” that gives the nonemployee former spouse COBRA coverage for up to three years (36 months). Although this may represent a cost-savings compared to independently acquired coverage, the premiums must still be paid or coverage lapses. • Disability. For the party paying spousal maintenance or child support, a disability insurance policy can cover expenses if he or she becomes disabled and cannot work. Many people fall into arrears on their support obligations because of illness or injury, so even a few months of disability coverage can protect the obligor from support enforcement actions. • Life Insurance. Whether term life, variable life, or whole life insurance, married couples typically name each other (the surviving spouse) as primary beneficiary, hence the need to change the beneficiary designation. Also, the party obligated to pay support may be ordered to maintain life insurance to ensure payments continue even after the obligor’s death. If the support recipient is worried about a possible lapse in coverage or a secret change of beneficiary designation, then arrangements may be made to pay the life insurance premiums directly. Post-Divorce Estate Planning The client’s legal status and financial circumstances have just undergone a major transformation, so every instrument in their estate plan should be carefully reviewed, amended, or revoked as need be. The wills of married testators, for example, are often reciprocal, naming each other as personal representatives (PR) and primary devisees. A reasonable post-divorce codicil would select a new PR, provide a different plan of distribution, and appoint a guardian for a minor child. In addition to the client’s last will and testament, instruments that will likely need updating include beneficiary deeds, powers of attorney, designation of healthcare advocate, living will, HIPPA authorization, inter vivos trusts, and pay on death accounts (PODs).
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