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Phoenix Divorce Law Blog

Work with an experienced attorney in garnishment proceedings

Child support and spousal support can be challenging financial responsibilities to deal with for those who have gone through a divorce. In some cases, financial strain can lead to the inability to meet one's financial responsibilities to a former spouse and one's children, which can then result in a court issuing an order for garnishment of earnings.

Garnishment is the legal process under which a party is able to collect payments from another party who owes them money under a court judgment. This includes payments for spousal support and child support. In order to pursue garnishment in Arizona, the money one seeks to obtain must be located in Arizona rather than another state. Those who want to pursue payments from an out-of-state party need to do so under the laws of the state in which that individual is located.

Default property division rules can be trumped by effective premarital agreements

In recent posts, we've been speaking quite a bit about prenuptial agreements, particularly about their usefulness in divorce, provided they are wisely negotiated and properly executed. To understand the usefulness of prenuptial agreements in divorce, it is helpful to have a basic understanding of the default rules for property division in the state of Arizona, since these are the rules that apply in the absence of an agreement to the contrary.

Generally speaking, there are two approaches states take to property division. One is called equitable distribution, which involves a fair division of property and debts deemed to be marital. The other approach-which Arizona uses-is community property, an approach which generally involves equal distribution of marital assets and debts. That being said, Arizona is a bit different than other community property states in that courts are supposed to divide marital assets equitably.

What can a prenuptial agreement not deal with?

In a previous post on this blog, we wrote a post dealing with the topic of when prenuptial agreements can be set aside in the state of Arizona. As we mentioned there are two primary situations where this can happen: when a party to the agreement did not voluntarily sign the agreement; and when a party to the agreement didn't have sufficient knowledge about the other party's assets and liabilities. A prenup can also be set aside when it is not executed validly, which is more of a technicality.

Another important issue to be aware of with prenuptial agreements is that parties may not contract with respect to certain issues. Under Arizona law, the major one listed is the right of a child to support. This means that couples may not agree in advance that child support will be reduced or denied to the custodial party should the couple obtain a divorce down the road. The reason for this is obvious: child support is for the good of children and parents may not negatively harm the child's right to support.

Even the rich sometimes need child support modifications

Child support is a real burden for many divorced parents in the United States. This is particularly the case among low-income families. Unfortunately, failure to pay child support can lead to serious consequences of the delinquent parent. Fortunately, some noncustodial parents are able to obtain relief through a modification of the child support order when circumstances have changed enough to warrant a modification.

Even the richest among us can feel burdened by child support payments. Halle Berry, for instance, recently filed a motion to reduce her monthly support payments. Under the current support order, Berry reportedly owes $16,000 per month to Gabriel Aubry for the care of their six-year-old daughter Nahla. The couple reportedly has joint custody.

Prenuptial agreements useful even for those of modest wealth

When many people think of prenuptial agreements, they assume they are only useful to those who are wealthy and stand to lose a lot in divorce. While it is certainly true that prenuptial agreements are in greater use among the wealthy, such agreements can certainly benefit those of more modest wealth.

There are a variety of circumstances, other than being very wealthy, in which it may be wise for couples to consider a prenuptial agreement. One common situation is when one or both parties are professionals who own businesses, such as a law practice or a medical clinic. Because divorce can leave ownership interests in a business exposed, it is critical to prepare for the possibility before marriage.

When can a premarital agreement be set aside in Arizona?

Prenuptial agreements are an important tool couples can use to protect themselves from financial loss in the event of divorce. As we've mentioned previously on this blog, though, it is important to take care when negotiating and drafting these agreements to ensure everything is done correctly. A careless prenuptial agreement won't do a couple any good and will only result in unnecessary costs and court appearances.

Under Arizona law, there are two general conditions under which a prenuptial agreement will not be enforced by a court. One of these is when a court determines that the agreement was not executed voluntarily. An agreement executed under duress or coercion does not represent a real agreement, and courts will not recognize them.

Tip: make sure your prenup says what you think it says

In our last post, we spoke about the grounds on which prenuptial agreements can be invalidated in the state of Arizona. As we mentioned, there are two basic grounds for a finding of invalidity. One is when a party did not voluntarily enter into the agreement. The other is when the agreement is fundamentally unfair and a party was not provided adequate information about the other party's assets and debts.

A recent article in Forbes looked at another issue related to prenuptial agreement: getting the language right. The article mentioned a recent New York divorce case to highlight the way in which minor details in the wording of a prenuptial agreement can have a significant outcome on how things turn out in divorce. We will not repeat the details of that case, but suffice it to say that getting the wording correct is important.

Dividing the family pet in divorce not always an easy issue

In divorce, there can be disputes over many things, including the family home, specific items shared by the couple, child custody, spousal support, and so on. One of the items that is becoming more and more an object of dispute are family pets. This makes sense, being that family pets often involve deep sentiments.

Traditionally considered to be property, pets have generally been subject to division in the same way other property was. Increasingly, though, couples are asking courts to treat pets more like children than property, in some cases changing their treatment in property division to a quasi-custody issue. Family law courts, of course, are not bound to treat pets the same way children have to be treated under the law-best interests of the child and so on-but couples are sometimes able to convince courts to incorporate custody aspects such as joint custody and parenting plans.

Griffin requests that court uphold prenuptial agreement

In a recent post, we wrote about the ongoing divorce case of Ken Griffin, founder of the hedge fund Citadel. One of the big issues in the divorce is a prenuptial agreement between Ken Griffin and his wife. She, as we noted, has asked that the agreement be thrown out because she was coerced into signing it and because it is unfair.

New information has reportedly come forward about the agreement from Mr. Griffin's side. In particular, his attorneys have requested a declaratory judgment that the prenuptial agreement is valid in order to avoid litigation. His lawyers have also requested a judgment that the agreement does not cause Ms. Griffin undue hardship, which would be a circumstance allowing it to be set aside under Illinois law.

Court of appeals approves enforcing out-of-state child support orders

Under a new ruling from an Arizona Court of Appeals gives judges the ability to enforce child support orders from other states, reversing a previous ruling that Arizona law doesn't allow for modification of child support orders from other states.

The case involved a woman who argued that a North Carolina child support order against her former husband should be enforced. Opposing her efforts, he argued that Arizona law would not permit enforcement of the order. The purpose of the Arizona law in question was to ensure there is only one child support order for judges to go by at any given time.

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