FindLaw Wins Five WebAwards!

Congratulations to FindLaw as they won five webawards for law firm web site design and development. These 2009 awards brings FindLaw's total webaward count to 22. What a great honor and achievement to be recognized by the Web Marketing Association so many times.

To read more about this years awards and view the web sites that were awarded please follow this link, http://company.findlaw.com/pr/2009/092109.awards.html.

Congratulations!

STATE BANKRUPTCY EXEMPTIONS ARE MANDATORY IN ARIZONA

Arizona Bankruptcy Attorneys

This article is provide by the Gilbert Bankruptcy Lawyers at Wilson-Goodman & Fong, P.C.

Many practitioners may be surprised to find that Arizona debtors are legally precluded from electing to use federal bankruptcy exemptions when they file. While the lingering effects of your old ConLaw class may induce an immediate “preemption!” argument, federal bankruptcy code actually allows for this.

11 U.S.C. § 522(b) allows states that have adopted their own exemption laws to “opt-out” of the federal bankruptcy exemptions. This means that, depending on the state, a debtor may have to use the federal bankruptcy exemptions, may have to use the bankruptcy exemptions of their state, or may be permitted by the state to choose which they prefer.

Arizona, for whatever reason, has decided to prevent its debtors from using the federal bankruptcy exemptions. Ariz. Rev. Stat. § 33-1133 provides that “residents of this state are not entitled to the federal exemptions provided in 11 U.S.C. 522(d).” Note that this only applies to debtors that qualify for using Arizona's set of exemptions. The debtor must have continuously lived in Arizona for the two years immediately preceding filing. If the debtor hasn't, then the applicable state law will be of the state in which the debtor resided for the greater part of the six months prior to the two year period before filing.

Presuming it is Arizona that applies, the United States Bankruptcy Court for the District of Arizona has explained the restriction: “Arizona is an “opt-out” state and has taken advantage of a provision in the bankruptcy law that permits each state to adopt its own exemption law, in place of the federal exemptions. Thus, those debtors filing bankruptcy in Arizona are allowed the exemptions as set forth in the Arizona statutes and federal non-bankruptcy statutes. Check the second box on the top of Schedule C, because Arizona law does not allow debtors to claim the exemptions provided by 11 U.S.C. § 522(d).”

The upside to this restriction? Arizona’s exemptions are generally much more generous than the federal exemptions and, while § 33-1133 prohibits the use of federal bankruptcy exemptions, it does not prevent Arizona debtors from claiming exemptions under other federal law. This includes Veterans’ benefits, Social Security benefits, and other proceeds for government or military employees. For more information, visit the Court’s website at http://www.azb.uscourts.gov/.

Arizona Criminal Defense Attorney - Ray Kimble

Arizona Criminal Defense Attorney

Congratualtions to Tempe criminal defense lawyer Ray Kimble on the release of his new website www.kimblelaw.com.

With an office centrally located in Tempe, AZ Ray is able to effectively defend individuals in the entire Phoenix metro area.

Scoresby Family Law - Mesa, AZ

Mesa, AZ Divorce Lawyer

Congratulations to Kyle Scoresby on the release of his new website, http://www.scoresbyfamilylaw.com/.

Kyle has been practicing law for almost 20 years with the last 15 almost exclusively on divorce and other family law cases. His firm is located in Mesa, AZ and he serves clients throughout the East and Southeast Valley's of the Phoenix metro area.

A BROKEN ENGAGEMENT: WHO GETS TO KEEP THE RING?

Surely there is nothing more romantic than two people falling in love and getting engaged. In fact, tradition usually dictates that the husband-to-be flourishingly present a sparkly engagement ring to his wife-to-be at the moment that he proposes to spend the rest of their lives together.

But let’s not jump the gun here. Sometimes forever is not, in fact, forever, and occasionally there are couples who don’t even get a chance to walk down the aisle. The pre-marriage split may be amicable but, as you can imagine, sometimes it can be far from it. One possible legal question: what can a gentleman do to get back his investment?

In Arizona, the answer isn’t exactly clear. Surprisingly, there is no Arizona statute or case law on the question of whether an ex-fiancé is entitled to have an engagement ring returned to him. Many other jurisdictions, however, have ruled on the subject and the general answer is a resounding ‘yes.’

For example, in Salens v. Tubbs, 2008 U.S. App. LEXIS 19102 (6th Cir. 2008), the decedent and the defendant became engaged and the decedent, naturally, gave the defendant an engagement ring. Subsequently, the defendant ended the relationship and rejected the decedent's demands to return the ring. Nevertheless, the court held that, because the engagement ring was a conditional gift, when the condition was not fulfilled the ring or its value should be returned regardless of fault. The court reasoned that a gift of property made in contemplation of marriage can be enforced as a “conditional gift” that will be returned to the donor upon proof of an express or implied-in-fact contract.
The “conditional gift contract” rationale of Salens is the most common avenue – it has been employed by states like Iowa, Ohio, and California, for example – but other theories include unjust enrichment, pledge, and fault, whereby the court decides whether the ring is returnable based upon who is to blame for the aborted marriage.

In any event, despite the silence of Arizona courts, there is a substantial amount of case law in many other jurisdictions that could be cited to in a cause of action. Of course, the plaintiff will have to weigh the costs and benefits of pursing litigation, but it is worth keeping in mind that there is indeed a chance that he will be successful in recouping his loss. Well, at least a financial one.

This article was provided by the Gilbert family law attorneys at Wilson Goodman & Fong, P.C.

Immigration Issues Complicate Efforts to Stop Kidnappings in Arizona

Article provided by the Phoenix drug crime defense lawyers at The Baker Law Firm LLC.

Phoenix, Arizona, has been dubbed the "kidnapping capital" of the United States. The state ranks second only to Mexico City in the number of annual kidnappings in the world.

While it may be technically true that the state has surged to the top of the kidnapping list with 366 kidnappings reported in 2008, what many fail to appreciate is that these kidnappings are not the result of random violence, and the majority of people living in Arizona are not potential victims of this crime wave.

Phoenix has become ground zero for the United States' battle against illegal immigration and Mexican drug cartel violence. The main reason for this is geography: Arizona has a 370-mile shared border with Mexico. This makes Arizona, and Phoenix in particular, a prime location for smuggling illegal drugs and illegal immigrants into the country. In fact, Phoenix is one of the main central distribution hubs for illegal drugs in the U.S. As a result, the city also has become a hub for cartel-related violence.

Cartels and Coyotes Profit From the Kidnappings

The vast majority of the kidnappings for ransom reported in Phoenix and throughout the rest of the state are related to the drug cartels and illegal immigrants. There are several different scenarios in which the kidnappings may occur.

When a person wants to enter the U.S. illegally, the person normally will pay cash to a "coyote" who agrees to get him or her into the country. If the individual already has family living in the U.S., the family also may approach a coyote about securing passage for loved ones. The coyote may be involved with the drug cartels or may operate independently. Sometimes the coyote may demand more money than originally agreed upon before releasing the person in the U.S., especially if the person has family in the country that can pay the ransom.

Other times a coyote — either the one who transported the person into the country or another coyote with no previous connection to the individual — may kidnap a person after he or she has settled down in the United States. The coyotes like to target those who have become successful, either by starting up their own business or by other employment, since they know the person has the means to pay the ransom.

The drug cartels also are responsible for many of the kidnappings in Phoenix and other Arizona cities. The usual victims of cartel kidnappings are those who owe the cartels money, either dealers for the cartel or drug users. They also kidnap members of rival cartels. However, cartel members also act as coyotes and can be involved in kidnapping illegal immigrants they have helped smuggled over the border.

Once the individual has been taken, the family will be notified that the loved one has been kidnapped and a ransom will be demanded for safe return. The ransom often starts as high as $50,000, but it decreases when the family refuses to pay or cannot pay such a large amount.

Victims Fear Deportation

The true number of kidnappings in Arizona each year is unknown. According to one report, it is estimated that there are twice as many kidnappings as are actually reported. Since many of the victims of the kidnappings are in the country illegally, their families fear the legal repercussions of reporting the crimes to the local police. The families worry that once law enforcement officials learn they are illegal immigrants, they will be taken into custody by federal immigration officials and deported. They also worry that because they are illegal immigrants, no one will care that their loved ones have been taken and the police will do little or nothing to help find them.

Those who have been involved with the drug cartels fear reporting the kidnapping will raise questions not only about their own immigration status, but also about their loved one's involvement with drugs and the cartels. They do not want to run the risk of their loved ones' being recovered only to be deported or charged with state and federal drug crimes. Thus, many families decide to pay the ransom and deal with the kidnappers on their own.

Arizona police and federal immigration officers, however, do have an interest in stopping the number of kidnappings happening across the state. In many instances, families and victims who are willing to cooperate with the police and testify against the kidnappers will not be deported or brought up on immigration violations.

Regardless, there is a real fear among the victims of the kidnappings, and their families, that seeking any help from outside authorities will result in criminal charges against them. Even those who are in the U.S. legally are subject to mandatory deportation for violating certain U.S. laws, including immigration laws and drug laws. For example, if a legal resident (or "green card" holder) pays a coyote money to help a family member enter the U.S. illegally, both the legal immigrant and the illegal immigrant may be deported for violating U.S. immigration laws.

Conclusion

Kidnappings for ransom have become a very profitable industry for the coyotes and drug cartels. The practice has long been used in Mexico and Central and South America as a means to make extra money and intimidate rivals, law enforcement officials and the public.
The immigration issues, particularly the fear of deportation, seriously complicate the reporting of these crimes and handicap the efforts of local police to arrest those responsible. Without cooperation between Arizona police, federal officials and the victims and their families, kidnappings for ransom could become a way of life in Arizona and other states.

MOVING FORWARD: A SUMMARY OF ARIZONA RELOCATION LAW

This article is provided by the Gilbert Relocation Lawyers at Wilson-Goodman & Fong, P.C.

When a relocation dispute arises between the joint custodians of a minor child, a reviewing court is controlled by the provisions of Ariz. Rev. Stat. § 25-408 and the parents’ decree of dissolution, to the extent that it addresses the issue. Note that it is common for a decree to forbid either parent from taking the child out of the state of Arizona for more than a short duration of time and/or will typically prohibit either parent from relocating out of state with the child absent consent from the other parent or a court order.

This is where Ariz. Rev. Stat. § 25-408(H) comes into play. It states, in pertinent part, that “The court shall not deviate from a provision of any parenting plan or other written agreement by which the parents specifically have agreed to allow or prohibit relocation of the child unless the court finds that the provision is no longer in the child's best interests. There is a rebuttable presumption that a provision from any parenting plan or other written agreement is in the child's best interests.” This is the relocating parent’s first hurdle: rebut the legal presumption that the parties’ prohibition on relocation is in the child’s best interests.

Ariz. Rev. Stat. § 25-408(G) presents the next hurdle: “The burden of proving what is in the child's best interests is on the parent who is seeking to relocate the child.” The common thread in both statutory sections is clear: relocation must be in the best interests of the child. Indeed, “The court shall determine whether to allow the parent to relocate the child in accordance with the child's best interests.” Ariz. Rev. Stat. § 25-408(G). Again, although the court must ultimately make a decision that is in the best interests of the child, it is the relocating parent who has the burden of not only demonstrating that the proposed relocation is such, but also overcoming the statutory presumption that a decree prohibiting relocation is what in the child’s best interests.

For the relocating parent to meet their burden, they must demonstrate that the relocation is in the child’s best interests according to, first, the factors enumerated in Ariz. Rev. Stat. § 25-408(I):

1. The factors prescribed under section 25-403.

2. Whether the relocation is being made or opposed in good faith and not to interfere with or to frustrate the relationship between the child and the other parent or the other parent's right of access to the child.

3. The prospective advantage of the move for improving the general quality of life for the custodial parent or for the child.

4. The likelihood that the parent with whom the child will reside after the relocation will comply with parenting time orders.

5. Whether the relocation will allow a realistic opportunity for parenting time with each parent.

6. The extent to which moving or not moving will affect the emotional, physical or developmental needs of the child.

7. The motives of the parents and the validity of the reasons given for moving or opposing the move including the extent to which either parent may intend to gain a financial advantage regarding continuing child support obligations.

8. The potential effect of relocation on the child's stability.

Excluding factor (1), which will be addressed shortly, Ariz. Rev. Stat. § 25-408(I) presents seven distinct factors that must be weighed in arriving at a conclusion about a proposed relocation. None of these factors are individually controlling; all of them should be weighed collectively. Pollock v. Pollock, 181 Ariz. 275 (Ariz. Ct. App. 1995).

Ariz. Rev. Stat. § 25-408(I)(1), in applying “The factors prescribed under section 25-403,” also adds an additional burden on the parent seeking relocation. Ariz. Rev. Stat. § 25-403(A) prescribes ten additional factors that must be weighed:

1. The wishes of the child's parent or parents as to custody.

2. The wishes of the child as to the custodian.

3. The interaction and interrelationship of the child with the child's parent or parents, the child's siblings and any other person who may significantly affect the child's best interest.

4. The child's adjustment to home, school and community.

5. The mental and physical health of all individuals involved.

6. Which parent is more likely to allow the child frequent and meaningful continuing contact with the other parent.

7. Whether one parent, both parents or neither parent has provided primary care of the child.

8. The nature and extent of coercion or duress used by a parent in obtaining an agreement regarding custody.

9. Whether a parent has complied with chapter 3, article 5 of this title.

10. Whether either parent was convicted of an act of false reporting of child abuse or neglect under section 13-2907.02.

Combining § 25-408(I) with § 25-403(A), the parent seeking relocation has an exhaustive list of seventeen (17) factors that must addressed and weighed in proving to the court that the relocation is in their child’s best interests; this is an even more substantial burden than must be met in a typical custody case. A parent seeking relocation would be wise to keep that in mind when making the personal choice about whether they intend to move out of Arizona with a child that also has another joint custodian.

If you have any additional questions regarding relocations or any other divorce or family law issue please visit our website at www.wgandf-law.com.