By Harry J. Lenaburg, Esq.
Certain retirement plans that may constitute community property in Arizona are creatures of the Employee Retirement Income Security Act of 1974. That law has been added to and changed many times since 1974, and its purpose was to establish minimum standards for pension plans in private industry. Under the terms of the act in order to enjoy favorable tax status the pension plan must be “qualified”.
When a family court judge orders a division of a qualified pension the plan administrator will be unable to take any action without receiving a required Qualified Domestic Relations Order (QDRO). This document, signed by the judge, directs the plan administrator on how to specifically distribute the funds in the plan. This may sound simple enough; however, generally speaking each plan has their own form or format for the information regarding that plan, the member of the plan, and the non-employee recipient of a portion of the plan. Here in the valley there are a handful of attorneys who prepare most of the QDROs. The preparation of a QDRO is seldom included in the dissolution family law fee agreement in the divorce setting.
I am surprised at the number of individuals whom I meet with where their issue is a division of a qualified plan, and no one followed through with the preparation of the QDRO. If a qualified plan is one of the community assets in your dissolution, be certain that a QDRO is prepared, signed by the judge, and properly delivered to the plan administrator.
We are always available to meet with you to discuss your Arizona family law issues. Contact our office for an appointment.
The Law Firm of Jessica M. Cotter, P.L.L.C.
18301 North 79th Avenue, Suite F-168
Glendale, Arizona 85308
602-843-3004
Jmcotterlaw.com
Jessica.Cotter@azbar.org
Monday, August 26, 2013
Monday, August 19, 2013
Steps to take to move with a child, when there is a Family Court order in place
Part 2
By Jessica M. Cotter, Esq.
Once you have sent the notice that you plan to move with the
child and someone filed a Petition to relocate, then it is up to the court to
make the decision if it will allow the relocation. The court looks at the following factors in
determining if they will allow children to move:
·
Whether or not the parents can agree on
joint legal decision making authority
·
If there is no agreement, why? Is the failure to agree reasonable or is
it influenced by another issue that does not involve the
best interest of the child(ren).
·
The past present and future ability of the
parents to cooperate in making decisions regarding the
child(ren)
·
Is the contemplated order logistically possible?
·
What do the parents want?
·
What are the wishes of the child(ren)?
·
The child's relationship with other family
members or other people that may impact the child's best interest.
·
The child's adjustment to home, community
and school.
·
The health of parties, this includes mental
health.
·
Who will
allow frequent and meaningful contact with the other parent?
·
Who has been the primary caregiver?
·
Has there been any coercion of duress
in obtaining an agreement.
·
Have the parties taken the parenting class.
·
Has there
been domestic violence or child abuse as defined in A.R.S.
25-403.03
·
Whether one parent has intentionally mislead the
court to cause a delay or increase the cost of litigation.
·
Whether asking for the child to move is not being
done to stop the other parent from seeing the child or to make it difficult on
the non moving parent to have a relationship with the child.
·
The potential improvements to the child’s
quality of life and the potential improvement for the custodial parent’s
quality of life.
·
Is the parent that the child is ordered to live
with going to comply with the court orders about parenting time?
·
Whether or not the relocation will allow a
realistic opportunity for parenting time with the other parent.
·
Whether or not the relocation will affect the
child’s emotional, physical or developmental needs of the child.
·
The effect on the child’s stability if the child
moves.
·
The motive of the parent who wants to move
including if that parent gets more child support as a result.
These factors can be found at A.R.S. Section 25-403, and at
A.R.S. section 25-408. The state
legislature has been reviewing the relocation statute with an eye on making
changes to it. The information provided
in parts 1 and 2 represent the law at the time these posts were written, but
understand that these statutes are subject to change.
As you can see trying to move with a child is very difficult
to do. Please contact our office for a consultation or arrange one with an
experienced family law attorney in your area.
The Law Firm of Jessica M. Cotter,
P.L.L.C.
18301 North 79th Ave
F-168
Glendale, AZ 85308
602-843-3004
Jessicacotterlaw.com
Jessica.Cotter@azbar.org
Wednesday, August 14, 2013
Steps to take to move with a child, when there is a Family Court order in place
(Part 1)
By Jessica M. Cotter, Esq.
If you have a Family Court Order of Legal Decision Making (Custody)
and parenting time and you want to take the child that is on that order with
you, then look at Arizona Revised Statue 25-408 which gives the necessary steps
to be taken in order to relocate more than 100 miles from the child’s current
location within the state, and for any out of the state relocation.
The first thing to do is to send a written notice to the
other parent with your plans to move, that will be received at least sixty days
prior to the move. This notice needs to be sent by certified mail, return
receipt requested, and the other parent must be the person who signs the
receipt. If this is not done then the
court can impose a penalty for not doing so. The parent that is not moving has
30 days after the notice is given to file a petition with the court to prevent
the relocation of the child. After waiting 30 days then the court may allow a
petition to be filed only with a good reason. The moving parent can always file
a Petition to relocate to determine if the move will adversely affect the
parent who is not moving.
After the Petition has been filed with the court, if the
Parent that is moving has Sole Legal Decision Making (Sole Custody) and the
move is necessary because of health, safety or employment or if the Spouse of
the Parent has to move for the same reasons before the sixty day waiting
period, then you can temporarily relocate with the child. The court could still deny the relocation and
order that the child be returned or modify its earlier order about who the
child will reside with. If there is an
order of Joint legal decision (Joint custody) making then you can only move with
the child before a court hearing if, the other parent agrees in writing. If not, you have to wait for the court to have
a hearing to make a determination if the court will allow the child to
relocate.
In the next blog I will review the factors the court looks
at in order to determine if the child is allowed to relocate out of the state
of Arizona or more than 100 mile radius.
The Law Firm of Jessica M. Cotter,
P.L.L.C.
18301 North 79th Ave
F-168
Glendale, AZ 85308
602-843-3004
Jessicacotterlaw.com
Jessica.Cotter@azbar.org
Monday, August 5, 2013
Third Party (Step-Parent) Rights to Legal Decision -Making Authority in Arizona
By Harry J. Lenaburg, Esq.
The right of a step-parents regarding legal decision- making (custody) with minor children is controlled by A.R.S. section 25-409. A step-parent would be petitioning the court for that right pursuant to an ”in loco parentis” theory. In loco parentis is defined in A.R.S. section 25-401(1) as “a person who has been treated as a parent by a child and who has formed a meaningful parental relationship with a child for a substantial period of time.”
The step-parent must stand “in loco parentis’, and the court must find that it would be significantly detrimental to the child to remain or be placed in the care of either legal parent who wishes to keep or acquire legal decision-making. There also must not have been a court order regarding legal decision-making or parenting time within one year, absent reason to believe the child’s present environment would seriously endanger the child’s physical, mental, moral or emotional health. At least one other factor must apply; either one of the legal parents must be deceased, the child’s legal parents are not married at the time the petition is filed or a proceeding for dissolution of marriage or for legal separation of the legal parents is pending.
As a step-parent you should be certain to discuss these issues and your concerns with an experienced family law attorney.
The Law Firm of Jessica M. Cotter, P.L.L.C.
18301 North 79th Avenue, Suite F-168
Glendale, Arizona 85308
602-843-3004
Jmcotterlaw.com
Jessica.Cotter@azbar.org
The right of a step-parents regarding legal decision- making (custody) with minor children is controlled by A.R.S. section 25-409. A step-parent would be petitioning the court for that right pursuant to an ”in loco parentis” theory. In loco parentis is defined in A.R.S. section 25-401(1) as “a person who has been treated as a parent by a child and who has formed a meaningful parental relationship with a child for a substantial period of time.”
The step-parent must stand “in loco parentis’, and the court must find that it would be significantly detrimental to the child to remain or be placed in the care of either legal parent who wishes to keep or acquire legal decision-making. There also must not have been a court order regarding legal decision-making or parenting time within one year, absent reason to believe the child’s present environment would seriously endanger the child’s physical, mental, moral or emotional health. At least one other factor must apply; either one of the legal parents must be deceased, the child’s legal parents are not married at the time the petition is filed or a proceeding for dissolution of marriage or for legal separation of the legal parents is pending.
As a step-parent you should be certain to discuss these issues and your concerns with an experienced family law attorney.
The Law Firm of Jessica M. Cotter, P.L.L.C.
18301 North 79th Avenue, Suite F-168
Glendale, Arizona 85308
602-843-3004
Jmcotterlaw.com
Jessica.Cotter@azbar.org
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