3 Divorce Questions

Are you currently going through the divorce process and need answers fast? Check out these 3 divorce questions, then call our office today.

What Happens When I Have to Go to Court for Divorce?

Oftentimes people that come to us for representation in family law are absolutely terrified of going to court.  They’ve never been there.  They don’t like going to jury duty.  They’ve never had a traffic ticket.  Now all of a sudden, this big issue comes up in their lives and their main concern is less with the divorce; it’s more, am I going to have to go to court and stand in front of this judge and jury, this guy with this black robe on and these weird people in court arguing and yelling at each other.

I tell them when someone asks me am I going to have to go to court, believe it or not, I say it depends.  There have been plenty of divorces that have been resolved without making a single court appearance.  Those are the divorces that are more amicable; those non-contested divorces, or things that could be resolved in mediation.  The court appearances are a whole lot less than those appearances that involve multiple petitions for contempt, evidentiary hearings, status hearings, return hearings, all of the various hearings that could be ordered by the court all the way up to trials.  Some divorces go all the way to trial.

You don’t get a jury in a divorce trial; you get a bench trial.  It’s just with the judge because of the sensitive nature of the information that is being shared.  Are you certainly going to have to go to court?  Maybe not, it depends on your divorce, how your divorce proceeds to the court.  Is there a possibility that you will have to go to court?  Absolutely, there’s a possibility, but the beauty of going to court, it’s when you represented.  You’re not representing yourself.  You go in with a skilled lawyer that does the majority of the talking for you, except in cases where you will have to testify.  The lawyer cannot testify on your behalf; you would have to speak – be sworn in and testify, should that become necessary.

Again, in less contentious divorces, or those that are less contested, the probability of that happening is a lot less.  With the highly contestable and contentious divorces, there’s a high probability that you will have to go to court; you will have to testify.  It’s a case-by-case basis.  There’s no definite yes; there’s no definite no.  It depends on your case, but having great representation is necessary either way.  Great representation can alleviate some court appearances, but it also can provide that screen of safety during those court appearances, to make sure that you’re ready when you have to make an appearance before the court.

Are you considering divorce but have questions about whether you will be required to appear in court, schedule a free consultation with our dedicated Phoenix divorce lawyers for guidance.

Should I Stay in the House While the Divorce is Proceeding?

One of the questions that we’re often asked in the context of marriage is should I stay in the house with the other party while the divorce is proceeding.  I believe that out of all of the questions that can be asked of a lawyer in the context of counsel, this is one of the most difficult questions I really believe that can be asked of a lawyer because there are so many moving pieces that have to be considered in answering should I stay in the marital residence or not.  The first thing that you have to look at is safety.  If there is a situation in the home where there is abuse, be it physical abuse, sexual abuse, mental abuse, those are personal considerations that are personal the individual.

I would never tell anyone to stay in a marital residence if they’re being abused in any type of way.  Your personal security and safety is of great importance to us as a law firm.  It should be to any lawyer that would be representing you in a family law matter.  If your safety is at risk, I would advise you to consider being elsewhere while the divorce proceeds.

That doesn’t mean that you lose any interest in the house that is owned or anything.  The interest that you’ve acquired in the house would remain, whether you’re living in the house or not.  Most of the time, vacating the marital residence becomes an issue prior to divorce being filed if someone has vacated the marital residence for some period of time.  That’s the thing first thing, is your safety.

The second thing is that if the marriage involves children. In some states they call it custody; in Arizona, we call it decision-making responsibility, as it relates to the children.  Where the children are; they’re safe if the two parties can live in the house together while going through the divorce, for the sake of the children.  Oftentimes, this looks good in front of the court because there are certain factors that the court is going to look at when it comes down to parenting time and decision-making responsibility.  The children, are they safe?  Is there a lot of bickering going back and forth because the well-being of the children takes priority?

The third area I would certainly advise anyone to look at is the financial resources of the parties, based on the standard of living.  If you’re used to living in a mini mansion in Scottsdale and you’re leaving the marital home and the other party is the sole breadwinner and you have no resources to move, well you’re not used to living in a Motel 6 or an extended stay.  These are all things that you have to consider.  The financial resources, of course, do not outweigh your safety and security.

Some of it can be addressed with temporary orders from the court, should you have to leave the marital residence and one party is the dominant breadwinner.  The court can issue temporary orders, temporary spousal maintenance, temporary child support, to make sure that you have enough resources to provide for yourself, should you have to leave the marital residence.  This is something that you would certainly want to talk with your lawyer about.

It’s important that your lawyer is not only interested in the legal matters and underpinnings of the court, but they have an understanding and a grasp of life, and that this is your life, it’s your family, it’s your children.  This is where you’ve raised your children.  Someone that is empathetic and sympathetic to the entire situation that could counsel you accordingly.  An experienced compassionate attorney that cares about their clients would do just that.

If you are considering divorce and have questions about leaving the marital home, I would urge you to speak with one of our lawyers, or some lawyer that could walk you through that process with a great degree of grace and wisdom, but also representing you as it relates to the law. Call today for a free consultation.

What are Premarital Assets?

We see clients that come in for counsel regarding a dissolution of marriage and as it relates to that marriage, one party, or both parties, had property, be it through an inheritance, or they won the lottery or they were just well off before they got married, it’s property that they accumulated prior to the marriage; that’s their personal property.  Then they’re married for whatever period of time and then they go through a divorce.  While they’re married obviously they have some community property; their job, they may buy another marital residence, a house, a boat, motorcycle or whatnot.  The question becomes when one party states a claim against, or claims to have some interest, if you will, in the personal property of the other party that was owned by them prior to the marriage.

Your personal property prior to the marriage remains your personal property, unless it was transmuted into community property and it was based on that understanding.  Sometimes there’s co-mingling of the personal property and the community property.  This is why I encourage people early on to make sure they trace the property.  If the co-mingled property can be traced back to personal property, then broadly it would be separated out and remain personal property.  It’s without controversy in this jurisdiction that what’s community property remains community property.

You would want to list out and your lawyer will sit down with you, give you a form where you get a chance to list out what is personal, what you believe to be personal property.  If there is an interest that the other party claims in something that you deem to be personal property, then the lawyer would look at that and then they would go through tracing process and trace that property back, to see if it was transmuted into community property, or if it in fact remained personal property.

That, by all means, requires the skill of a lawyer to look at that and determine whether that remains personal property or if it’s been transmuted to community property.  You would want to seek out a skilled family lawyer to help you through that process, to make sure that you don’t lose any interest in property that is actually a personal property and should remain personal property.

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