Old Pueblo Legal Observer

Use Of Experts At Family Law Mediation

 

By:  Nanette Warner, Esq.

Mediation is frequently used to resolve family law cases, saving the time, expense and uncertainty associated with trial. The Arizona Rules of Family Law Procedure require that before a case goes to trial, the parties must avail themselves to some form of alternative dispute resolution (ADR). Private mediation or a court-ordered settlement conference with a judge or volunteer judge pro tempore are frequently used ADR. Where custody and/ or parenting time issues are unresolved, in Pima County, the parents are required to attend mediation with a Conciliation Court mediator.

A privately retained mediator is often considered a superior means for resolving more complex family law cases. Court-ordered settlement conferences are generally limited to one hour. If a judge’s or judge pro tempore’s schedule permits, additional time may be allotted for settlement conferences. However, the time is never sufficient where there are multiple and complex issues. A private mediator is able to work with the parties and their attorneys to get a complete agreement on all issues at a cost far less than the cost of trial.

In preparing a family law case, an attorney will often consult with experts depending on the issues. If there are property and financial issues, an attorney may consult with an accountant, financial advisor, or appraisers. If the parties own a business or have an interest in a business, a person specially trained in business evaluation may be retained. If custody or parenting time is an issue, a custody evaluator or another mental health expert may be consulted. At times, attorneys will agree to jointly retain one expert in an area. The decision to jointly retain an expert depends on the case issues, the experience and reputation of the expert proposed to be retained, the relationship between the attorneys and the expert and the cost involved of hiring the expert in relationship to the value of property interest at issue. Whether an expert is jointly retained by the parties or an expert retained by one party or each party retains their separate expert, his/her presence at mediation can often be pivotal to resolving the case without trial.

In family law cases, mediation often allows for more flexible and creative means of resolving property and maintenance issues than does a trial. It puts the parties squarely in control. Therefore, when discussing property division, the presence of a knowledgeable expert can be pivotal to resolving the issues. Because the expert charges for his/her time, the decision to have an expert present at the mediation will depend on the issue, the value and complexity of the property at issue, the contributions the expert can make towards resolving the case and the cost of having an expert present. If the expert is needed only on specific inquiries, the attorney should consider having the expert appear by phone for consultation during the mediation.

If each side has retained experts on the same issue, such as the value of a community business or real estate, it is helpful to have both experts present at the mediation, even if they have written reports. If the experts professionally discuss the basis for their opinions and factors considered, it helps to give the mediator, attorneys and parties insight and suggest possible areas of compromise. Credible accountants, business evaluators and appraisers frequently are able to identify ways of resolving issues, particularly where tax consequences are involved. The experts may be able to agree on key points even where it initially appeared that they disagreed. Even where all issues are not resolved at mediation, the parties can gain insight as to how an expert’s opinion might be viewed by the trial judge.

An expert on tax can be helpful to the mediation process by assessing and discussing with the mediator, attorneys and the parties, the tax consequences and suggesting the timing of sales or various distributions of real and personal property, division of retirement assets or the length and amount of spousal maintenance. If an expert has been brought by one party, the mediator should consider asking that party, if the expert could share his/her views and ideas for resolution directly with the other party and attorney and address their concerns.

Although financial experts have been used most often in mediations, when custody and parenting time issues are the subject of mediation, attorneys and parties should consider having any consulting custody evaluators or mental health experts available during mediation. While custody evaluators would be reluctant to attend a mediation, they would probably agree consulted by phone to assist the parties and the mediator in reaching a resolution and to further discuss their conclusions and specific recommendations, concerning custody, parenting time or services for parents or children.

In making a decision on custody and parenting time, the Court must consider the mental and physical health of all individuals involved in the custody decision, including the parents and the children. Input from a treating counselor during the mediation could be helpful to developing a parenting plan that would avoid a difficult and potentially damaging custody trial.

If an expert attends mediation, at the beginning of the mediation, the mediator should clarify the role that the expert will play in the mediation to the parties, the attorneys and the expert. The mediator must clarify if the expert will only assist the retaining party or will communicate with the other side.

In summary, where economically feasible, the presence and contributions of experts at mediation has a positive effect on assisting the parties to understand the benefits and consequences of the potential resolutions and assists the parties and the mediator in drafting agreements that meet the requirements of the law and needs of the parties.

 

Editor's Note

Karp and Weiss is fortunate to enjoy an excellent reputation in family law. With the addition of Nannette Warner, a former Pima County Superior Court Judge, we now provide mediation services in family law matters.  Nannette's first entry in the Old Pueblo Legal Observer addresses the use of expert witnesses in family law mediation.

Twiblings and Arizona Adoption Law

 

By Patrick Lacroix, Esq.

 

Stories of people who have turned to Assisted Reproductive Technologies (ART) to build their families have captivated the media’s attention in recent years. There can be no question that ART is changing the way we see family as a society. Surrogacy, especially, presents exciting new issues of family, law and morality.
Perhaps the best example of the questions raised by ART, and surrogacy, can be found in the story of a couples’ decision to have “Twiblings”: two genetically identical siblings, who were born to two different gestational carriers (i.e., surrogates), and only five days apart.
In the New York Times article, Meet the Twiblings, the children’s mother chronicles her experiences as she and her husband desperately attempted to have twins the old fashioned way – through in vitro fertilization. Ultimately, when her doctors advised against further I.V.F. treatments, she and her husband turned to surrogacy to fulfill their dream of having children. With the raw materials coming from four people (the husband’s sperm, an anonymous egg donor and two separate gestational carriers) they succeed in having twins, or at least Twiblings. To learn more about this amazing family, click on the following link: http://www.nytimes.com/2011/01/02/magazine/02babymaking-t.html?_r=1&scp=1&sq=meet%20the%20twiblings&st=cse
As a nation, our laws on surrogacy vary dramatically from state to state. Some states have laws that are supportive of surrogacy. Other states go so far as to criminalize surrogacy agreements. Still others offer little guidance for the parties involved in these arrangements. Arizona falls into this latter category of states, with laws that can only be described as unclear. By statute, for instance, surrogacy contracts are prohibited in Arizona. Our courts, however, have upheld the parental rights of the intended parents in surrogacy cases and concluded that Arizona’s statute is unconstitutional on several grounds.
With no clarification in Arizona’s law in over a decade, and the public increasingly viewing surrogacy as an exciting new means of creating a family, surrogacy agreements have begun to flourish in Arizona.
Please contact us if you are interested in learning more about the laws concerning ART, surrogacy or adoption.

Deadline Approaching for Qualified Charitable Deductions

 

 

By Elizabeth Spillotro

Among the many aspects of the tax reform compromise President Obama negotiated with Republican leadership in late 2010 is an extension of the qualified charitable distribution from retirement plans for 2010 and 2011. A QCD is a direct transfer of property (up to $100,000 for an individual, $200,000 for a married couple filing jointly) from most conventional IRA accounts to charity. The distribution is not recognized as income taxable to the donor, and does not qualify for a charitable deduction.

Why is this so exciting? For donors over age 70 ½, the QCD can count toward the IRA owner or beneficiary’s required minimum distribution – meaning a donor who does not need the required distribution from her IRA can instead redirect some or all of that distribution to charity and avoid incurring the income tax that results from accepting the distribution herself. It also means the owner of an exceptionally large IRA can reduce its size and taxable implications (estate and income) by redirecting some of its assets directly to charity.

A donor who makes a QCD before January 31, 2011 can elect to have that distribution as made on December 31, 2010 for tax purposes. Accordingly, if it would benefit your 2010 tax bill to make a qualified charitable distribution, act fast!

 

Is Your Home Subject To A Bank Break-In?

Marian Abram, Esq.

According to an article in the Wednesday, December 22, 2010 edition of The New York Times, banks are claiming that a clause in most mortgages allows banks that service the loan to enter an abandoned home and secure the home if the mortgage is in default, i.e., the mortgage payment is 45 to 60 days late. 

In Arizona, residential mortgage liens are secured by a document called a Deed of Trust. It is not unusual for the terms of a Deed of Trust to allow the lender access to the house if it is abandoned or if there is waste (destruction) in process. However, absent such circumstances, any such entry by the lender to secure the house may amount to a trespass and a cause of action against the lender may exist.

The New York Times article can be found by clicking this link: http://www.nytimes.com/2010/12/22/business/22lockout.html?ref=business&pagewanted=al

 

 

The Holidays and DUI Stops

 

By Greg Foster

 

As we reach the height of the holiday season, many of us will find ourselves at an office party, family gathering or New Year's Eve celebration. Invariably, our hosts will select locations miles from our homes and, graciously, serve refreshments that may not be totally free of alcohol.

It is well understood that impaired driving should be strictly avoided. Failure to do so may result in grave physical injury, severe criminal penalties and career-ending public records.

What may not be so well understood is what a driver, returning from a holiday soiree, might do when contacted by an officer.

Have You Had Anything to Drink Tonight?

While a driver is searching for creased and coffee-stained copies of registration and proof of insurance documents requested by an officer and buried under several layers of long-forgotten, expired registration and insurance documents, he might hear the question: "Sir, have you had anything to drink tonight?" In fact, should the investigation proceed, the driver may be asked many other questions including, but not limited to:

~ What have you been drinking?

~ How many drinks have you had?

~ When did you start drinking?

~ When was your last drink?

~ Do you believe the drinks you've had have affected your driving to the slightest degree?

Does the driver have to answer these questions? While it is a good idea to remain courteous throughout this contact, the driver has the right to remain silent and decline to answer questions posed by the officer and is well advised to invoke that right.

Do You Mind If I Look Into Your Eyes?

The officer may ask the driver to exit his car and the driver should do so, keeping in mind that the officer is evaluating his balance, responsiveness, speech, clothing and breath, among other things.

Next, the officer may ask the driver whether he can take a look at the driver's eyes. This is, very often, actually a request that the driver allow an officer to administer a field sobriety exercise called the Horizontal Gaze Nystagmus Test. During this exercise, an officer purportedly generates information about neurologic disfunction, one cause of which may be alcohol. He does so by shifting a pen back and forth in front of the driver's face. I have yet to meet a DUI officer who is also a neurologist.

The officer may also ask the driver to participate in other field sobriety exercises known as the Walk and Turn test and the One Leg Stand test. One exercise involves the driver walking, heel to toe, along a line and the other mandates that the driver balance on one foot for approximately 30 seconds.

In Arizona, a driver may decline to participate in any of these exercises. If the driver participates in the exercises, observations made by the officer are admissible at trial. If the driver refuses to participate in these exercises, an officer may testify that the driver refused to take the tests.

Will You Consent To The Specified Blood or Breath Test?

Although a driver may (and should) decline to answer questions and participate in Field Sobriety Tests, refusal to consent to a blood or breath test requested by an officer following an arrest for DUI will subject the driver to serious consequences. In Arizona, a driver impliedly consents to a blood or breath test when an officer has reasonable grounds to believe that the driver is under the influence of alcohol. Refusal to take the test will result in a 12 month suspension of the driver's license (24 months if there is a prior refusal in the last 84 months). Additionally, an officer will likely obtain a search warrant to draw the driver's blood even if the driver refuses to consent to a blood or breath test. In that case, insult is added to injury; the blood is drawn and the driver's license is suspended for a year.

The driver does have a right to an independent blood test. If the driver is released after an arrest, he may obtain a blood test on his own. If the driver is taken to jail, law enforcement must give the driver an opportunity to obtain an independent blood test. Because blood alcohol levels change over time, it is important to obtain an independent blood test close in time to the arrest.

I Want To Speak To An Attorney.

A driver may request an opportunity to speak with an attorney during a DUI investigation.

Hopefully, the holiday season will bring only good cheer. If it also brings a Court date, please don't hesitate to give us a call. Attorneys at Karp and Weiss have provided aggressive defense of drivers accused of DUI in Courts throughout southern Arizona.

 

The Tax Cut Compromise: Whither the Estate Tax?

 

Elizabeth Spilotro, Esq.

 

Within President Obama’s somewhat surprising tax cut compromise reached with Republican leadership late Monday is an especially surprising proposal regarding the estate tax: a reintroduction of the temporarily-dormant tax with a $5MM per person exemption and a 35% tax rate on estates exceeding that amount.

Under EGTRRA, the Bush-era economic stimulus bill that ushered in our current, controversial reduced income tax structure, the estate tax was also “reformed”, with an exemption that progressively increased to $3.5MM in 2009 (with a 45% tax rate on amounts exceeding this threshold) until temporary full repeal of the estate tax in 2010. In 2011, the estate tax regime is scheduled to return to pre-2001 structure, with a $1MM exemption and a 47% marginal tax rate absent legislative intervention.

Conventional wisdom has held that the revisited estate tax would most likely resume the 2009 structure ($3.5MM exemption; 45% marginal rate), so President Obama’s compromise is a generous surprise clearly designed to placate Republican leadership. The compromise is likely to spark division among Democrats, many of whom support an expanded estate tax while others bitterly oppose it on policy grounds.

In his comments regarding the compromise, President Obama indicated that, like other aspects of the deal, the expanded estate tax package will be in place for a temporary two-year period. It’s not clear whether that period will begin 1/1/11, or be imposed retroactive to 1/1/10 as has been speculated. Quite possibly executors of 2010 estates will be given the choice to apply either the 2010 or 2011 tax law; because the 2010 “repealed” tax code imposes an unwieldy carryover-tax-basis rule to assets being transferred at death, for many estates the 2011 estate tax provisions may in fact be more tax-advantageous in the long run.

Editor's Note

Gregory J. Foster

Welcome to the Old Pueblo Legal Observer. The Observer, published by the attorneys at Karp and Weiss, is designed to provide timely and useful information about legal issues, our attorneys and our involvement in the community. Karp and Weiss attorneys practice in the areas of personal injury, family law, criminal defense / DUI, business law, alternative dispute resolution and estate planing, among others.

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