Be consistent for your children

By Harry J. Lenaburg, Esq.

We are all familiar with how our children will attempt to play mom against dad when the child wants something.  At our house one of the first questions was “what did mom say?” or “what did dad tell you?”.  Children learn early to try to get around the rules, and they refine their attempts as they get older.
What this means for a couple with children who have divorced is that the parents should continue to be consistent in their dealings with their children.  So many tears have been shed, forests cut down to become paper, and dollars spent on attorney fees, counseling fees, court advisor fees, family assessment fees, parenting conference fees and the other costs involved in post dissolution family law matters because the estranged parents do not follow that simple rule.
Certainly there is a place in the system for all of these resources, particularly in abusive situations, or when a parent is unfit, though addictions or other emotional problems.  Every child has the right to be safe.  But let’s not allow the children to manipulate the situation in a way that causes court action and expense when it is the result of children pushing parent’s buttons to get something they want.




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

Terminations of Parental Rights in Arizona

By Harry J. Lenaburg, Esq.

Questions often arise in our practice about a biological parent “giving up custody” as a way to avoid any future responsibility for the payment of child support for their minor child or children.  Another question is “how do I terminate the biological father’s/mother’s parental rights so that my new spouse may adopt the child or children?”.

The bases and method of termination of parental rights is, not surprisingly, set out by statute in A.R.S. section 8-533.  The test is always the best interests of the child.  Grounds include, but are not limited to, abandonment, neglect or abuse of the child, mental health issues or chronic use of dangerous drugs or alcohol by the parent, that the parent is deprived of civil liberties and convicted of a felony as to prove that parent’s unfitness to parent.

A petition to terminate parental rights would be filed in the Juvenile Division of the county superior court.  Parental rights may also be terminated by the execution of consent to adoption by the parent.   A hearing will be scheduled, and a copy of the termination petition and notice of hearing must be served upon that parent.  A social study by an approved agency must be prepared and submitted to the court in order to obtain a termination in most cases.

Importantly A.R.S. section 8-539 describes the effect of the termination order.  The order “. . . shall divest the parent and child of all legal rights, privileges, duties and obligations . . . except . .  support from the parent.  This right of . . . support shall only terminate by a final order of adoption.”  This means that “giving up custody’ or “giving up parental rights” will not terminate the obligation to pay child support.

If you wish to attempt to terminate the rights of a biological parent, of if you have been served with a petition to terminate your parental rights, you should consult with an experienced termination/adoption attorney in your area to discuss your rights, obligations and how to proceed.

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

18301 North 79^th Avenue, Suite F-168

Glendale, Arizona 85308

602-843-3004

Jmcotterlaw.com

Jessica.Cotter@azbar.org

Revocable Trusts versus Irrevocable Trusts

By Harry J. Lenaburg, Esq.

Many clients choose to include a Living Trust in their Estate Plan.  One reason to do so is to avoid the necessity of the filing of a probate action to transfer property when the client dies.  Many of these trusts are revocable however some clients choose to declare their trust irrevocable.  There are estate tax implications to trust planning, so a discussion with your CPA or tax accountant is in order.

If the trust is revocable, that means that the settler/trustor (the client or clients who establish the trust) have reserved to themselves the ability to amend their trust, and of transferring property to and from the trust as it suits their purpose.

If the trust is irrevocable, then once the settler/trustor transfers property to the trust, that property may not be removed and returned to the settler/trustor’s name.

Most clients prefer the freedom to transfer property to and from their trusts, so most trusts are the revocable variety.  However, as a general rule, once any settler/trustor of a trust dies, the trust become irrevocable under the terms of the trust.

Estate planning is important for all, so you should consult with an experienced estate planning attorney in your area to discuss the best options for you and your family.

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

18301 North 79^th Avenue, Suite F-168

Glendale, Arizona 85308

602-843-3004

Jmcotterlaw.com

Jessica.Cotter@azbar.org

What do you do if you have a covenant marriage and you want a divorce but you do not meet the requirements?

By Jessica M. Cotter, Esq.

If you no longer want to be married to a person and you have a covenant marriage and you do not meet the requirements to get a divorce you can at least protect yourself and get a legal separation.  In order to obtain a legal separation the court has to find that one of the following is true:

1. The person being served with the petition for dissolution (the Respondent) has committed adultery;

2. The Respondent has committed a felony and sentenced to death or imprisonment in any jail;

3. The Respondent has not lived in the marital home for over a year before the filing for legal separation;

4. The Respondent has physically, sexually or emotionally abused you, a child or relative of yours as defined in A.R.S. 13-3601; 

5. You have lived apart for two years before you filed the petition for  dissolution;

6. The Respondents’ constant bad behavior or bad treatment of the person filing the petition for legal separation is so bad that you cannot live together anymore because it is not tolerable; or

7. The Respondent is abusing drugs or alcohol.  

It is not a simple process to get a Legal Separation when you have a covenant marriage. I would consult an experienced family law attorney in your area to assist you with this process. 

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

18301 North 79th avenue 

Suite F-186

Glendale, Arizona 85308

Jmcotterlaw.com

Jessica.Cotter@azbar.org

602-843-3004

What do you do if you have a covenant marriage and you want a divorce?

By Jessica M. Cotter, Esq.


I have only assisted with 2 divorces that involved a Covenant marriage in my 10 plus years of practice.  Many attorneys have never come across the dissolution of a Covenant marriage.  If you want to get a divorce with this type of marriage the court has to find that one of the following is true:

1. Both parties agree to the divorce;
2. The person being served with the petition for dissolution (the respondent) has committed adultery;
3. The respondent has committed a felony and sentenced to death or imprisonment in any form of jail;
4. The respondent has not lived in the marital home for over a year before the filing for divorce;
5. The respondent has physically, sexually or emotionally abused you, a child or relative of yours as defined in A.R.S. 13-3601;
6. You have  lived apart for two years before you filed the petition for  dissolution;
7. You have lived separate and apart for a year after you were legally separated through the court; or
8. The respondent is abusing  drugs or alcohol.


It is not a simple process to get a divorce when you have a covenant marriage. I would consult an experienced family law attorney in your area to assist you with this process.

The Law Firm of Jessica M. Cotter, P.L.L.C.
18301 North 79th avenue
Suite F-186
Glendale, Arizona 85308
Jmcotterlaw.com
Jessica.Cotter@azbar.org
602-843-3004

If situations change after you are divorced, what do you do?

By Jessica M. Cotter, Esq.


Child custody/decision making

If there has been some difficulty co-parenting with the other parent or the other parent has had some personal issues that demonstrate their inability to parent, you may feel that action must taken to correct or change the situation.  The changes must be substantial and ongoing. The standard to be met is set out in Arizona  Revised Statues section 25-411.  If you want to file for a modification, then you need to make sure that you are in compliance with Rule 91(D) of the Arizona  Rules of Family Procedure. The rule requires you to file and serve the following:

1. A Petition to Modify Legal Decision making that states what the changes are and how drastic the changes are and that they will not improve. This needs to be notarized or if it is not then you need a sworn statement regarding the changes.

2. A Notice of Filling Petition for Modification of Legal Decision making.

This is just to get the process started. After the filing and service on the opposing party you must wait 25 days after the documents are served in Arizona (35 days if the service is out of state). Then you may provide a Request for Order Granting or Denying Custody Hearing to the Judge. If the court grants your hearing then you have to present your evidence to the court and there are no guarantees. I would highly recommend that you review your case with an experienced family law attorney before you file anything with the court.

Please check out next week’s blog about how to change parenting time.

The Law Firm of Jessica M. Cotter, P.L.L.C.
18301 North 79th avenue
Suite F-186
Glendale, Arizona 85308
Jmcotterlaw.com
Jessica.Cotter@azbar.org
602-843-3004

Keep Estate Planning Documents Current

By Harry J. Lenaburg, Esq.

Sometimes it takes a near tragedy to remind one how important it is to maintain your Estate Planning documents, with the most current information.  Suppose you had named your son as executor of your Will or as the individual with decision making authority under your Medical Power of Attorney.  On active duty in the military, that son is honorably serving us all overseas.

In a medical emergency your appointed agent is unavailable.  The remedy for this dilemma is to appoint an alternate executor or agent.  The language is simple, “In the event X is unable or unwilling to act as my (attorney in fact/agent/executor for example) I hereby appoint Y as my . . .

It is essential that you plan for contingencies.  If your estate planning documents are old, or the situation has changed (for example children were minors when you prepared your Will, and are now in their 20’s or 30’s)  I urge you to speak with an experienced Estate Planning Attorney to discuss your options, and modify any Estate Planning documents that should be updated.


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