COVID-19 News and How it May Relate to Your Case – Parenting Time, Business Valuations, Property Valuations, Spousal Maintenance and Child Support
As you may be aware, COVID-19 has effected the Arizona family law courts and it’s abilities to handle trials and other in person hearings. The judges are still doing telephonic hearings, emergency in-person hearings and orders of protection. Many evidentiary hearings are either being continued or held by video conference.
Parenting time orders are still enforceable. Some parents are not allowing the other parent their Court ordered parenting time citing COVID-19 as the reason. Both Maricopa and Pima county courts have issued statements that parenting time is still enforceable. If you do not allow the other parent his or her Court ordered parenting time you may be held in contempt and/or sanctioned. This may include having to pay the other parent’s attorney fees and costs. There may be some cases where the Court may eventually agree that withholding parenting time was reasonable but you should think very carefully before you take that risk. For example, if the other parent is sick, has traveled illegally and recently, or has otherwise flaunted the regulations and advisories the court “may” find that you acted reasonably under the circumstances. However, you are still taking a risk. Fortunately most of our clients have been able to work out agreements with the other parent including: only changing the parenting time for the self-quarantine recommended number of days; allowing make-up time; allowing frequent video access; allowing outdoor parenting time with social distancing between the parent and children, etc. If the other parent has not engaged in risky behaviors and is not sick, there simply is no basis to withhold parenting time.
Another big issue is vacation time. With recommendations against flying, this is a sticky subject to require the children to fly out of state. Again, if you can work this out with the other parent you should do so.
Generally business valuations are initially done as of the date of service of process of the divorce proceedings. However, Arizona cases allow courts to determine a different date depending upon the circumstances and what achieves “substantial justice”. Because of COVID-19 Arizona divorce cases regarding business valuations may become more complicated. One one hand a business value may have decreased during the COVID-19 situation (at least until businesses are allowed to recommence without restrictions). At the same time, we do not know how long business restrictions will be in place and how long it will take businesses to bounce back. Some businesses may have very little drop off it they do not depend upon walk-in traffic etc. It can be argued that the COVID-19 impact may be short term or at least speculative.
The same issues involve valuation of other assets such as homes and other real estate. We have not yet seen a material decline in real estate values, but at the same time the number of home and property sales have clearly declined during the last month. The possibility of retaining an appraiser to provide input on the issue may be in one or both parties’ best interests.
Child Support and Spousal Maintenance.
Some people have been laid off. Others have had their hours reduced. Some business owners have seen substantial decreases in their income during the COVID-19 situation. You cannot stop paying support just because you do not earn the same income or were laid off. Your remedy is to seek a modification or termination of the Court order. In order to modify child support or spousal maintenance one must establish a substantial and continuing change of circumstances. This can be based upon things such as changes in parenting time, changes in income, changes in health care insurance, changes in child care costs, etc. If a party just lost their job or only recently experienced a change in income it is questionable how the Court will treat such situation – i.e. does one or two months rise to the level of a “continuing” change of circumstances. We would generally recommend seeking a modification as early as possible as it may take months to obtain an evidentiary hearing. By that time, if the party has been re-employed at a similar wage or his or her income has increased the party can request to dismiss their own petition. If the decreased income has continued and the Court finds that such is substantial and continuing, then the modification should be retroactive to the date it is filed. Remember you cannot modify child support or spousal maintenance to a period before you file your petition with the Court. Also, if you previously agreed that the spousal maintenance award is “non-modifiable” you cannot modify such award despite your circumstances.
If the parties are seeking their first order of child support or spousal maintenance, the Court may apply the current circumstances (i.e. the lower income). However, such orders are modifiable and can be addressed when the party is re-employed or his or her income (hopefully) returns to normal.
There are many divorce and family law issues that may arise during this difficult time. Bishop Law Office is willing to answer any of your questions.