Post-Decree Modification

Some Court orders can be easily modified. Other types of Court orders may be difficult to modify, or may not be modifiable at all. As a general rule, legal decision making, child support, and spousal maintenance are generally modifiable so long as one can establish a substantial and continuing change in circumstances. Parenting time can be modified if such is in the child’s best interests.

MODIFICATION OF PARENTING TIME ORDER

Unlike legal decision making, one is not statutorily required to show a substantial and continuing change of circumstances to modify parenting time. Parenting time orders are generally modifiable so long as you can establish that such modification is in the children’s best interests. This may simply be that the children are getting older. The best interests of the children may change over time.

The first things to look for when modifying a parenting time order is the date the last order was entered by the Court, and whether your parenting plan has a mandatory mediation provision – i.e. that says that you must attempt mediation before filing court proceedings to modify parenting time. Under ARS 25-411, one cannot modify legal decision making or parenting time earlier than one year from the entry of the last court order unless there is reason to believe that parenting time may “seriously endanger” a child’s physical, mental, moral or emotional health, or if one parent engages in domestic violence. If one of the parents violates the parenting plan, the statute provides that the other parent can file a petition to modify six months after entry of the last order (the parent can still file a motion to enforce an order entered less than six months ago). If your parenting plan has a mediation requirement, you must at least attempt to participate in private or mediation through the Court prior to filing for modification. If the other party refuses to participate in mediation, the Court may allow you to file your petition without participating in mediation.

Although the children do not have the final say in Arizona regarding parenting time, they do have a voice so long as they have valid reasons for their desires. There is no specific age that the children have a say, but their desires are usually provided more weight as they become older. See ARS Section 25-403(4) (the wishes of the child are relevant “if the child is of suitable age and maturity”). Often a Court appointed professional does not ask the children specifically what parent they want to live with, but rather asks other questions in order to determine the child’s desires and other best interest factors.

One of the most common topics that may require a modification to parenting time occurs when one of the parties desires to relocate with the children. The issue of relocations is addressed specifically in other sections of our website. See Relocation.

Common reasons for modifying a parenting time order, include but are not limited to the following:

  1. The parent with less parenting time desires additional time. This may be prompted by the children getting older or other reasons.
  2. One of the parents may have engaged in behavior contrary to the best interests of the children, for example: domestic violence, substance abuse, alcohol dependency, and inappropriate discipline of the children.
  3. The children desire to spend more time with one of the parents.
  4. The children may desire to reside primarily with one of the parents. This may be for valid reasons, such as one of the parents failing to spend quality time with the children during his / her parenting time, or is verbally or emotionally abusive toward the children.

MODIFICATION OF LEGAL DECISION MAKING (LEGAL CUSTODY) ORDERS

INCLUDING SCHOOL CHOICE ISSUES

It is generally more difficult to modify legal decision making since Arizona now presumes that joint legal decision making is in the best interests of the children. As noted in the section of this website dealing with legal decision making, the term “custody” is no longer part of the Arizona Statutes. Legal decision making includes educational decisions, health care decisions, and major personal care decisions.

To modify legal decision making, one again must show a substantial and continuing change of circumstances. The children’s desires have less impact on legal decision making. One of the most common grounds to modify legal decision making is where one of the parents is essentially impossible to deal with. Other reasons often include substance abuse and domestic violence.

Choice of schools is often a hotly contested issue within the legal decision making arena. Courts are reluctant to decide what school the children attend, and thus often rule that one parent should have legal decision making responsibilities over education, while maintaining joint legal decision making regarding non-educational issues.

MODIFICATION OF CHILD SUPPORT ORDERS

To modify a child support order, one must show a substantial and continuing change of circumstances that leads to a different child support amount. (See Section 24, Child Support Guidelines). A change of circumstances that results in a 15% difference in the child support amount is presumed to qualify as a substantial change of circumstances. The term “continuing” means that it is not a temporary change of circumstances. Changed circumstances that can lead to a different child support amount may include either party’s change in income, the termination or modification of spousal maintenance, a change in the parenting schedule that affects the child support guidelines calculations, a change in the number of children that are subject to the child support order (i.e. one or more of the children graduate from high school or reach 18 years old), or the change or termination of certain child related costs such as health insurance, child care expenses, etc.

When modifying a child support order, other child support related orders may change as well, such as the division of the tax dependency exemptions, the percentage each party pays for uncovered medical expenses, and other expenses that are divided between the parties proportionate to income.

To modify child support, you must first file a petition to modify with the Court unless both parties agree to the modification. If both parties agree to the modification, a stipulation regarding the new amount should be submitted to the Court. Child support modifications do not happen automatically. For example, just because one of the children graduates, child support remains the same for the remaining children unless you file a petition to modify child support or stipulate with the other parent to a new amount. The only automatic modification / termination is when there are no remaining children subject to the child support order. However, in such event, you will want to make sure that the Court discontinues your Order Of Assignment so that your wages do not continued to be garnished after child support terminates.

It is important to note that a child support modification cannot be made retroactive before the date that the petition is filed. Sometimes a parent is disheartened to find out that even though the child lived with him or her, child support continues to accrue because no petition was filed. In the event that there are changed circumstances, it is always a good idea to at least consult with a qualified attorney to explore whether you should file for a modification of child support.

Similar to the establishment of a child support order, there may be complex factors in your child support modification case, such as attributing income to an underemployed or unemployed parent, whether a parent is truthful regarding the amount of income they earn (especially self employed parents), whether an upward or downward deviation in the child support guidelines amount should be ordered based upon the children’s respective standard of living in each household, and other factors.

MODIFICATION OF SPOUSAL MAINTENANCE ORDERS

A prior spousal maintenance order that states that it is “non-modifiable” cannot be modified. Otherwise, a spousal maintenance order is potentially subject to modification if one of the parties can establish “changed circumstances that are substantial and continuing.” ARS Section 25-327(A).

Changed circumstances in many modification cases regard a change in income to either or both parties. However, even though there are changed circumstances, there is no guarantee that the Court will modify the spousal maintenance amount or duration. For example, the Court could find that a payor is still able to afford paying the same spousal maintenance amount even though his or her income has decreased. In the same regard, the Court could find that somebody is not entitled to more spousal maintenance based solely upon the fact that the paying party makes more money if the recipient’s reasonable needs have not materially changed.

In addition, there are Arizona cases that state that such changed circumstances must not be foreseeable at the time of the spousal maintenance award. Case law is somewhat ambiguous with regard to what this means as any circumstance could be argued as foreseeable, i.e. losing one’s job, incurring a disability, etc.

One of the more common reasons to request a modification or termination of a spousal maintenance award is the retirement of the paying party. If the party has reached social security maximum retirement age, this is generally an adequate reason to seek such a modification or termination. However, such is not guaranteed if the payor can still afford to pay spousal maintenance even though retired, and if the recipient cannot meet his / her reasonable needs absent such spousal maintenance award.

In some cases, a party may desire to extend the duration of spousal maintenance. Such petition must be filed prior to the expiration of the spousal maintenance term. In such event, one still must show a substantial and continuing change of circumstances. For example, a recipient’s continued inability to meet his or her reasonable needs without spousal maintenance may not be grounds to continue a spousal maintenance award if he or she has not made good faith efforts to obtain employment or maximize his / her income potential, and if there have not been changed circumstances that suggest that the award should be extended beyond the present period.

There is a difference between the modification of a spousal maintenance award, and the termination of such award. A spousal maintenance award automatically terminates upon the death of either party, or the remarriage of the recipient. A spousal maintenance award also terminates when the duration has been completed so long as it is not extended by the Court.

The case law regarding whether a spousal maintenance award can be modified is very technical. It is always a good idea to at least consult with a qualified family law attorney before filing a motion to modify a spousal maintenance award.

CAN THE DIVISION OF PROPERTY & DEBT IN A DIVORCE DECREE BE MODIFIED?

We occasionally get calls from a divorced party that does not feel that the agreement they entered into was fair. The problem with such “buyer’s remorse” is that it may be too late to do anything about it.

Absent a stipulation between the parties, a Court’s divorce decree which divides property and debts, or a property settlement agreement incorporated into a divorce decree, cannot be modified. ARS 25-317(F).

Prior to the entry of a divorce decree, it may be possible to ask that a property settlement agreement be modified or disregarded if it is unfair. ARS Section 25-317(B)-(D). However, once the decree of dissolution is entered, orders regarding property and debt become essentially non-modifiable.

That being said, there may be other avenues to set aside a property or debt division pursuant to a post-decree motion so long as adequate grounds apply, and so long as such is filed timely (generally within six months of the Court’s Decree). See the section of the website regarding Challenging Court Decisions and Orders. There may be other avenues for relief in some cases, such as the division of property and debts that were not mentioned in the divorce decree.

It is always smart to consult with an experienced family law attorney if you are not happy with the division of property and debts in your case. You will want to do this as soon as possible in order to avoid missing any deadlines.

We encourage you to call our office to schedule a consultation with one of our very experienced family law attorneys to see if it makes sense to file a petition to modify a Court order in your case.