Domestic Violence Lethality Assessment

Domestic Violence Lethality Assessments

            In our practice, it is sadly all too common for our clients to be involved a relationship where domestic violence has been present.  Domestic violence is commonly misunderstood to be merely physical encounters caused by an anger management problems.  In fact, domestic violence is instead the control a partner or other members of the family unit through different methods of coercion.  Physical violence or the threat of such actions can certainly play a role in the perpetrator maintaining that control, but more subtle and invidious methods are also common.  This can include financial control, emotional belittlement, isolation from other loved ones, and psychological conditioning to believe that the domestic violence is the victim’s fault.

            Leaving a relationship characterized by domestic violence can be dangerous, as the choice to leave is the ultimate rebellion against the control exerted by the partner.  It is essential to assess the risk and put safeguards in place to provide protection during this dangerous time.  One tool that is becoming more prevalent across the country to assess the risk of leaving a relationship the Domestic Violence Screening Questionnaire.  The Questionnaire was originally developed by first responders in Maryland but has since spread nationwide.  It is recognized by law enforcement, mental health professionals, and attorneys as a useful aid in evaluating the level of risk faced by the client in leaving the relationship.

Domestic Violence Screening Questions

1.  Has he/she ever used a weapon against you or threatened you with a weapon?

2.  Has he/she threatened to kill you or your children? 

3.  Do you think he/she might try to kill you?

4.  Does he/she have a run or can he/she get one easily

5.  Has he/she ever tried to choke you?

6.  Is he/she violently or constantly jealous, or does he/she try to control most of your daily activities?

7.  Have you left or separated from him/her after living together or being married?

8.  Is he/she unemployed?

9.  Has he/she ever tried to kill himself/herself?

10.  Do you have a child living with you that is not his/hers?

11.  Does he/she follow or spy on you or leave threatening messages?

12.  Has he/she ever avoided arrest for domestic violence?

13.  Is he/she an alcoholic or problem drinker, or does he.she use illegal drugs?  Specific drugs that tend to be more problematic are stimulants, including amphetamines, methamphetamines, cocaine, speed, and crack.

14.  Is there anything else that worries you about your safety?

15.  Have you immigrated to this country?

            A.  Do you not have any children living with you in your home?

            B.        Do you have any children in common with him/her living?

            The more “yes” answers that a client has in this questionnaire, the greater the concern about lethality.  Additionally, the highest risk for homicide is when “yes” answers are given to certain sets of questions, including where the partner has both gun access/ownership and is also abusing a substance; if there is a recent separation and also stalking behavior; and where stalking and threats are combined.

            Take these behaviors and threats seriously and work with your attorney to formulate a plan to leave the relationship while simultaneously taking steps to ensure your safety and that of your children and pets.

Mitton Child Support Ramifications

              In most family law cases where there is more than one child, the children share the same parenting time schedule and move back and forth between their parents’ households together.  However, occasionally a situation arises where a shared parenting time arrangement is not best for the children.  For example, a child may be estranged from a parent.  Separate parenting time schedules may also be necessary if one child has special needs, and it is sometimes appropriate if there is a significant difference between the ages and developmental stages of the children.

            One of the thorniest issues for a family law practitioner on how to address a split parenting time arrangement is how to calculate child support under this circumstance.  Surprisingly, the child support calculation system used by the courts (and available on the Arizona Supreme Court website) has no mechanism to address a split parenting time arrangement.  Attempting to calculate support in a divided parenting situation is particularly complex where parenting time is being shared by the parents for the children, but in different amounts.  We often have resorted to pretending that one child does not exist or is not a child of both parents to attempt to ballpark an amount of support that is consistent with the Guidelines.  However, this approach often results in an inflation of the child support obligation, because child support does not increase by a set amount per child.  Instead, there are incremental increases for additional children because some of the expenses related to providing for a child (such as paying for housing) do not increase with additional children.  The different approaches tried in litigation never satisfactorily addressed this issue.

            Happily, a recent decision from Division One of the Arizona Court of Appeals now gives instruction on how to address a split parenting time situation.  In Mitton v. Mitton, the parties had three children.  The two youngest children shared equal parenting time with both parents, while the oldest child lived exclusively with the mother.  The trial court calculated child support by preparing a worksheet for support for the oldest child, and then a separate worksheet for support for the younger children.  The child support amounts were then added together to arrive at the father’s support amount.  The father appealed and argued that this approach artificially inflated his support obligation.

            The Court of Appeals agreed with the father and gave family law practitioners throughout the state instructions on how to calculate child support when there is a split parenting time schedule.  The opinion directs the preparation of one child support worksheet for all the children.  The total number of parenting time days exercised by the parent who will be required to pay child support is then calculated by adding together the time spent with each individual child, and then divided by the number of children covered by the support worksheet.  This number is the average amount of parenting time exercised by the obligor parent with all of the children, and it is used as the parenting time credit to calculate the support amount for all of the children.

            The Mitton decision will help us better serve our clients who are in a shared parenting time situation because we can now give specific guidance about what amount of support can be expected for the children.  This in turn will help our clients prepare for their financial future with greater certainty, and it will help reduce the need for litigation in these situations because we can better anticipate the probable outcome of a child support dispute.  

Howell Decision

              The U.S. Supreme Court recently struck down an opinion from the Arizona Supreme Court in the case Howell v. Howell.  This case is important reading for any military members and their spouse who are divorced or considering divorce.

            In the Howell case, Mr. Howell served in the military and earned military retirement benefits as part of his compensation for that service.  Military retirement benefits are community property and divisible in a divorce.  Consequently, when the Howells divorced, Mrs. Howell was awarded a portion of the military retirement in Mr. Howell’s name, and she began collecting her share of the monthly benefit after Mr. Howell’s retirement.

            However, Mr. Howell then qualified to receive military disability benefits due to a service-connected injury.  When a service member qualifies to receive disability benefits, the member is required to waive a corresponding amount of retirement benefits.  Since disability benefits are not taxable income, the service member will generally accept the disability benefits in lieu of retirement benefits.

            Mr. Howell therefore accepted the disability benefits, and he waived his right to receive the corresponding military retirement.  However, his actions created a new problem for Mrs. Howell.  Military disability benefits are not divisible community property.  In fact, the statute A.R.S. §25-318.01 specifically says that military disability benefits cannot be divided between spouses.  Mr. Howell’s unilateral choice to waive the military retirement benefit caused Mrs. Howell’s payments to suddenly go down each month without her consent, even though she had a vested property right and a court order entitling her to receive that money.  As an added complication, A.R.S. §25-318.01 was passed by the legislature after the Howells divorced, so there was a question as to whether the statute should even apply to their case. 

A.R.S. §25-318.01 also prohibits the court from entering an order requiring the service member to indemnify the spouse for the loss of the military retirement benefit waived to obtain a disability benefit, or for the military spouse to be awarded different property as compensation for the lost benefit.  As might be expected, litigation began between the Howells to determine if Mr. Howell could deprive Mrs. Howell of her retirement benefit by selecting disability status.

The Arizona Supreme Court ruled in Mrs. Howell’s favor.  The Court found that Mrs. Howell had a vested property right to receive the military retirement benefit, and that her right to receive that property came before the passage of A.R.S. §25-318.01.  Furthermore, Mr. Howell did not have the right to change her property right without her consent.  Mr. Howell appealed this decision to the United States Supreme Court.

The United States Supreme Court recently ruled in this case, and they reversed the Arizona Supreme Court and found in Mr. Howell’s favor.  The United States Supreme Court found that Mrs. Howell’s right to receive the military retirement was just an expectancy to receive that property that was subject to removal if a disability election was selected.  The U.S. Supreme Court found that A.R.S. §25-318.01 applied in the case and prohibited the Arizona court from finding in Mrs. Howell’s favor.

How will this change how we practice in this office?  This case is a huge red flag and will warrant discussion in every divorce involving a military member.  We have a case right now where we represent a woman who is divorcing a man who served in the military for twenty years.  The man already has a partial disability rating, and it is possible that he could ask for his disability rating to be reviewed and increased in the future.  If he does this and is successful, any military retirement received by my client could suddenly be reduced or eliminated entirely.  We will therefore work to structure a settlement that protects the client by awarding her different property in lieu of the military retirement to make sure that the assets awarded to her cannot be taken away in the future.  This will allow the client to move forward from the divorce with greater financial security and a firm understanding of her financial situation.