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Tucson Family Law Blog

What is needed to divide retirement accounts in a divorce?

As with most property in an Arizona divorce, pensions and retirement accounts are often considered part of the marital estate and are divided according to Arizona's community property rules. This often means that part of one spouse's pension or retirement account needs to be distributed to the other spouse.

But wait; when you take money out of a 401(k) or a similar plan before age 59-1/2, you could face tax consequence and even penalties. You can't just withdraw the money and give it to your divorcing spouse without paying the piper.

In a divorce, will my child be asked to decide who to live with?

It depends on the circumstances. For one thing, if you negotiate or mediate your divorce, you will come up with your own parenting plan, which includes assigning legal decision-making authority and parenting time. If you can resolve your divorce by agreement, out of court, there is no need to worry about having your child testify about their wishes.

For another, Arizona courts will only consider the child's opinions if they are of "suitable age and maturity." Moreover, the child's opinion must be an "intelligent preference."

Can you do divorce mediation if there has been family violence?

Research has consistently established the domestic violence rate during the time of separation at between 40% and 80%. If you have experienced intimate partner violence, does that mean you can't undertake divorce mediation?

The issues are trust and control. Can a spouse who engages in violence be trusted to bargain in good faith and uphold their agreements? Will one partner feel coerced by the other into an agreement that is not in their interests?

Unmarried parents? Consider getting a court order of paternity

The Smith Law Offices, P.C. - In Arizona, you can establish a father's paternity by having both parents sign an acknowledgement of paternity form in the presence of a witness or notary. You will generally need a photo ID. You may even have been given this form when your baby was born. You don't even need to have a paternity test done.

Is that enough? It's enough to get child support started, but you should really do more. You should set up a court order of paternity, too. An acknowledgement of paternity does not automatically give the father legal decision-making authority over the child or the right to parenting time with the child. In order to get those rights, you need a court order of paternity with a parenting order.

Are the courts ready to deal with deepfake evidence?

It's your worst nightmare. You are accused of something terrible, and your ex says they have video proof that you did it. You know it can't be true, but what can you do against a video?

This is increasingly becoming a reality in cases around the country and around the world. For example, at a British child custody hearing last year, a woman claimed to have video evidence that her estranged husband was dangerous.

Can you stop your ex from moving away with the kids?

Depending on the circumstances, you may be able to. It depends in part on what your arrangements for legal decision making and parenting time are. Ultimately, the court will decide whether the relocation is in the children's best interest.

Let's assume you share legal decision-making authority and have roughly equal parenting time. In those circumstances, your ex is supposed to provide you with 45 days' notice before moving your children out of state or more than 100 miles away, even if that is still in Arizona. That said, a court can waive this requirement if it finds good cause to do so.

Do you need help with a domestic violence order of protection?

If you are in an intimate, family, romantic or sexual relationship with someone who is abusing you, you have the right to seek an order of protection. Also called a "retraining order," an order of protection can be obtained after an act of domestic violence or a credible threat. You can file for up to a year after the most recent violent act or threat of violence.

What does an order of protection accomplish?

Is military deployment a factor in determining parenting orders?

It can be. In Arizona as in most states, the legal standard for setting up parental decision-making authority and parenting time is that these orders must be in the best interest of the children. When determining what is in the children's best interest, the courts can consider any factor relevant to the children's physical and emotional well-being. 

When can you claim Social Security under your ex spouse's name?

If you divorced after marriage that was 10 years long or longer, you may be entitled to Social Security retirement benefits under your ex-spouse's record. This could occur if you are at least 62 and receiving benefits under your ex-spouse's record would be an advantage over using your own record. You get the larger benefit between the two records, not benefits from both accounts.

Social Security retirement benefits are calculated based on your work history or, if you were a dependent, based on your spouse or ex-spouse's work history. After a long-term marriage, especially one where you were a homemaker or made substantially less than your ex-spouse, it is often the case that the ex-spouse has a longer, more advantageous work history.

How is child support calculated in Arizona?

At least on their wedding day, most couples who get married believe they'll be together forever, but unfortunately, that isn't reality. Many couples will live long and happy lives together. Other married couples will bask in the limelight of marital bliss for a few decades before life takes its toll on their relationship.

Sometimes couples hold on to marriage longer than they feel they should due to the fear of putting their children through the trials of divorce -- or putting themselves through the trials divorce. If you do get divorced and have children under 18, your new budget may include obligated child support payments or court-ordered alimony payments on top of losing assets and property.

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Law Office of Hector A. Montoya, P.L.L.C.

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Tucson, AZ 85719

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