Guardian and Conservator appointments through your Will

By Harry J. Lenaburg, Esq.  

My wife and I recently spent a weekend caring for our four grandchildren, and the thought came to my mind how unprepared many young parents are for the possibility that something may happen to either or both of them.  Who will care for their children, and who will watch over their finances?

Consideration must be given to who will physically care for the children in the event of the death, or total incapacity of both parents.  Who is it that you believe can best care for and raise your child or children?  Often a sibling will be willing and able to do so.  Grandparents are almost always willing to do so.  Young parents must thoughtfully review their options, and make the choice that in their hearts serves the best interest of their child or children.

A Will is the usual instrument used to state your chosen preference for Guardian and Conservator for your child or children.  In the event of your death or incapacity the probate court, which is the court with jurisdiction, will generally honor your nomination. 

While the Guardian takes care of the physical needs of the child or children the Conservator is responsible for the finances of the child.  Although the same person may be nominated as both Guardian and Conservator, the same person does not necessarily have to be so appointed.  Many of us have friends, or family members who are somewhat challenged when it comes to properly handling their finances.  Likewise we have friends and family members who are strong in financial areas.  Remember, this is your children whose future you are contemplating.  Sometimes the best person to care for a child is different from the one who will best watch the finances.

Young parents should be thoughtfully discussing these matters, and reaching a consensus on whom they wish to nominate as the Guardian and Conservator for their child or children.  It is important that you verify with the people you wish to nominate for these important positions that they are willing and able to accept the honor and the responsibilities that you are proposing.  It is also good practice to propose an alternate Guardian and Conservator, in case for the reason the original nominee or nominees must decline the position due to changes in their circumstances.

The Law Firm of Jessica M. Cotter, P.L.L.C.

18301 N. 79th Ave. Ste f-168

Glendale, AZ 85308

602-843-3004

jmcotterlaw@gmail.com

JessicaCotterlaw.com

How is a parent’s gross income determined for the purposes of calculating child support in Arizona?

By Jessica M. Cotter, Esq and Harry Lenaburg, Esq. 

A key component in calculating child support is determining the parent’s gross monthly income. The court can do this by a review of the parent’s pay check, determining the hourly rate and then multiplying by either a 40 hour work week or the appropriate work week of the parent.   The weekly amount is then multiplied by 4.33 weeks per month to calculate the monthly wage. For example

$10.00 x 40= $400.00 income per week

$400.00 x 4.33= $1,732.00 income per month

The court must also include commissions, bonuses, dividends , pensions ( if you are receiving one) interest or investment income, spousal maintenance, income received from a trust, Workers Compensation  or any other source of funds available to the parent.  Bonuses, commissions and other payments not received on a monthly basis will be annualized.

When dealing with these other sources of income or with a parent who is self employed the calculation is more complicated. Especially when a parent is self employed, as their income is not necessarily the gross monies reported on their federal income tax returns.   Adjustments may be made for business expenses, or other offsets, along with adjustments made due to depreciation reported on the tax return.

The Arizona child support guidelines look at other items that the parent may benefit from which may be considered as income for child support purposes. Some examples are a parent’s car allowance or use of a business vehicle that may also include personal use.   For military personal the court does consider BAH and BAS, as well as a value for base housing, as a portion of a parent’s gross monthly income.

These are merely examples of the factors which may be involved in the determination of gross income when a parent is not paid by a conventional hourly wage.  You are always best served by seeking the advice of an experienced family law attorney, but it is even more essential in those circumstances outlined above.

Source: Arizona Child Support Guidelines June 1, 2011

The Law Firm of Jessica M. Cotter, P.L.L.C.
18301 N. 79th Ave. , Ste 168
Glendale, Az 85308
jessicacotterlaw.com
Jessica.Cotter@azbar.org

How does child support work in Arizona

 By  Jessica M. Cotter, Esq

Calculating child support in Arizona is not always an easy task. It is a complex mathematical formula that is re-evaluated every several years to assure that it is in line with the current cost of living.  The court looks at the following information in order to determine child support to be paid:

              1.     The number of minor children of the relationship;

              2.     The ages of the children;

              3.     Both parents gross monthly incomes;

              4.     If either party is paying spousal maintenance;

              5.     If either party is receiving spousal maintenance;

              6.     If either parent has a child or children from another relationship and if either

                    parent is paying child support;

             7.     The cost of health insurance for the minor child/children only

             8.     The cost of daycare;

             9.     An adjustment of the amount of parenting time;

            10.    If there is any extraordinary ongoing costs for a child with special needs.

Once the court reviews all of the information the Judge or Commissioner inputs the information into a child support calculator which calculates the final collar amount for child support.  The above factors are just the tip of the iceberg when it comes to calculating child support in the state of Arizona.

If you have questions, please contact an attorney in your area.

Source Arizona State Revised Statue §25-320

  

The Law Firm of Jessica M. Cotter, Esq.

602-843-3004

Jessicacotterlaw.com

Jessica.Cotter@azbar.org

Communicate With Caution

     I am often astonished in matters involving legal decision making, and parenting time, to find out that there is a series of text or email exchanges between the parties which contain abusive or derogatory comments about the other parent.  I suppose that people can be thoughtless in their communications, but you must be aware that any such exchange stands a good chance of being presented as evidence in your parenting time evidentiary hearing.

     Once you are before a family court Judge, and any parenting time orders are entered, anticipate that you will be required to communicate by email exchanges, and directed to be civil, and to confine the email to either the particulars of the exchange of the children, or as information to the other parent about the latest parenting time.  The Judge will let you know that he or she anticipates that if difficulties arise, that the email thread will be presented, and the Judge will be looking to determine whether or not you have complied with those orders.

     You should make it a practice to communicate with the other parent by email, so everything is in writing, and thus documented.  Whether it is your initial email to the other parent, or your reply to an email you should always, always, always, draft it, then go away from it for a while, and come back to read it again.  We are all human, and it is easy to write something that you do not really mean, or that should be stated in a different way.  Always assume that what you email to the other parent will someday be presented to the Judge, either by opposing counsel, trying to demonstrate how unreasonable you are being, or by your own attorney, to demonstrate the opposite.

     So, communicate with caution.  Be aware of how your communication will sound weeks or months from now, in the heat of an evidentiary hearing.  Caution now will translate into more positive results in the future.

Posted by Harry J. Lenaburg, Esq.
Law firm of Jessica M. Cotter, P.L.L.C.
602-843-3004
JessicaCotterlaw.com

Something to think about

     Many of the potential clients I meet in the context of the dissolution of their marriage come to me to help them obtain the dissolution.  Unfortunately the potential client is often uninformed, in many cases by the intentional actions of their spouse, about the actual financial condition of the marital community.

     Financial issues often lead to the estrangement of the parties.  It is my experience that too many couples have no concept of how to prepare, and live within, a budget.  The reality of a dissolution of the parties' marriage is that a household already struggling to make ends meet now becomes two households.

     In the current economy and job market it is not unusual for the wife to earn as much or more than her husband, but in many cases wife/mom has stayed at home to raise the children, or worked at part time jobs to supplement the family income.  The reality, however, is that resources are often limited, and child support based upon the Child Support Guidelines (and possibly an award of spousal maintenance) will mean a significant reduction in the quality of life for whichever spouse has been the caregiver of the minor children.

     If you  decide that the time has come to file for a dissolution of your marriage you should work up a realistic budget for your ongoing costs and expenses.  This will assist you, and your attorney, in moving forward with the financial aspect of divorce.  If you have no idea what those costs and expenses may be, it will be impossible for you to plan for the future.

     Posted by Harry J. Lenaburg, Esq.
     Associate with the Law Frim of
     Jessica M. Cotter, PLLC

Jessica M. Cotter Law Firm's Tips: New Year, New Law

Jessica M. Cotter Law Firm's Tips: New Year, New Law: By: Jessica M. Cotter, Esq. There have been some significant revisions to the laws regarding dissolution cases involving children and ...

New Year, New Law

By: Jessica M. Cotter, Esq.

There have been some significant revisions to the laws regarding dissolution cases involving children and in paternity cases. The Court will no longer determine who has custody of the children, as that term has been replaced by the concept of “legal decision making”.  The court will now determine who the “legal parent” is and whether as a couple will they make “legal decisions” jointly or that one parent will make the “legal decisions”.  The “legal decisions” that the Court is focusing on are non-emergency decisions for education, health care, religious training and personal care decisions. At this time the definition of “personal care decisions” is unclear as the law is so new and no definition of “personal care decisions” is included.

The statute also defines the parents’ responsibility during their “parenting time”.  During the time that they exercise “parenting time” parents are responsible for providing food, shelter, clothing and making routine decisions concerning the child’s care.

 The new law will not affect custody and parenting time orders that were entered prior to January 1, 2013, the effective date of the change, however, modifications to existing orders will be subject to the new language and definitions set forth in the new law.

 Arizona Revised Statute §25-401 which contains these new definitions  is set forth below:

In this chapter, unless the context otherwise requires:

1. "In loco parentis" means 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.

2. "Joint legal decision-making" means both parents share decision-making and neither parent's rights or responsibilities are superior except with respect to specified decisions as set forth by the court or the parents in the final judgment or order.

3. "Legal decision-making" means the legal right and responsibility to make all nonemergency legal decisions for a child including those regarding education, health care, religious training and personal care decisions. For the purposes of interpreting or applying any international treaty, federal law, a uniform code or the statutes of other jurisdictions of the United States, legal decision-making means legal custody.

4. "Legal parent" means a biological or adoptive parent whose parental rights have not been terminated. Legal parent does not include a person whose paternity has not been established pursuant to section §25-812 or §25-814.

5. "Parenting time" means the schedule of time during which each parent has access to a child at specified times. Each parent during their scheduled parenting time is responsible for providing the child with food, clothing and shelter and may make routine decisions concerning the child's care.

6. "Sole legal decision-making" means one parent has the legal right and responsibility to make major decisions for a child.

7. "Visitation" means a schedule of time that occurs with a child by someone other than a legal parent.

     Also see the statute at the following link

          http://www.azleg.gov/formatdocument.asp?indoc=/ars/25/00401.htm&title=25&doctype=ARS

This is not intended to be legal advice. Please consult an attorney for legal  advice for your situation and in your state. This information is only valid for the State of Arizona. 

Contact Information:

The Law Firm of Jessica M. Cotter

18301 North 79th Ave

Suite F-168

Peoria, Arizona 85308

jmcotterlaw.com

jmcotterlaw@gmail.com

602-843-3004