Top 5 Things to Know About Family Law Modifications in Arizona
1. Some parts of a Court’s ruling are not modifiable, including the division of property and an award of attorney’s fees.
While many parts of the Court’s order are subject to ModificationAn action made to change a current court order. Modifications commonly involve parenting time, legal decision-making, child support, or spousal maintenance.Read more about Modification, some parts are not. Most notably, the Division of PropertyA general term referring to how the parties’ debts and assets will be allocated (divided) in a divorce decree.Read more about Division of Property is generally not modifiable. However, if you discover—and can prove by Clear and Convincing EvidenceCertain issues in family law require clear and convincing evidence. Clear and convincing evidence is generally defined as evidence that is highly probable or reasonably certain. Kent K. v. Bobby M., 210 Ariz. 279 (2005). This is a step up from the preponderance of evidence that…Read more about Clear and Convincing Evidence—that your ex-spouse hid assets, then you can ask for those assets be divided.
2. A legal decision-making or parenting time order cannot be modified for at least one year unless an emergency arises.
Under Arizona law, a Parenting PlanThis is the Court order that contains the legal decision-making and parenting time orders. It sets forth the parenting time schedule and includes the other custody orders.Read more about Parenting Plan has to remain in effect for one year. The only exception is if an emergency arises. In that case, a parent can file an emergency PetitionThis is a court document that someone files to start a case.Read more about Petition for modification. The standard for an emergency is that a parent has to show irreparable harm will happen to the child if there is not immediate Court intervention. There is one other way you can modify prior to a year, and that’s by an agreement between the parents. Otherwise, parents must wait out a year. Once a year is up, Parenting TimeThis is what it sounds like—this is when it’s the parent’s time with the child(ren). See A.R.S § 25-401(5). Prior to 2012, it was known as physical custody.Read more about Parenting Time and Legal Decision-MakingThis is the right to make decisions on behalf of the child when it comes to decisions involving the child’s health, education, religion, or personal care. It does not include the right to dictate the child’s parenting time schedule or place conditions on the other parent’s time.…Read more about Legal Decision-Making are modifiable, but the parent seeking ModificationAn action made to change a current court order. Modifications commonly involve parenting time, legal decision-making, child support, or spousal maintenance.Read more about Modification must show a change of circumstances since the last orders that affect the child’s well-being, and that their proposed change is in the child’s best interest.
3. Children generally do not have much of say of where they live until they are in high school.
We frequently hear from parents wanting to modify that the child does not want to go to the other parent’s house. We agree that a child’s unwillingness to visit the other parent is concerning. Although one of the Best Interest FactorsThese are a set of factors that a Court must consider whenever determining legal decision-making or parenting time. The Court must make written findings. The factors are found in A.R.S. § 25-403.Read more about Best Interest Factors a Court must consider where a child who is “of suitable age and maturity” wants to live, Courts usually do not much put weight on the child’s OpinionThis is a ruling by the Court of Appeals that resolves the case and creates case law that other courts must follow in similar circumstances.Read more about Opinion until the child is high school age. Even then, you should know that it is extremely rare for a child to testify in a family court proceeding. That is not to say the child does not have a voice. You can request someone from the Court interview your child. And if a Court-appointed Advisor or Best Interest Attorney is appointed, they will likely interview your child as part of their duties. They will prepare a report that, among other things, summarizes your child’s interview, and that is usually the way your child’s voice will be heard by the Court.
4. A spousal maintenance award is generally modifiable, but if the parties made an agreement to make it non-modifiable, the Court cannot modify it.
When Spousal MaintenanceThese are payments made from one spouse to another when one spouse cannot financially meet their reasonable needs on their own. The law permits spousal maintenance (or alimony as it’s called in other states) for several reasons—to help maintain the lifestyle the parties enjoyed…Read more about Spousal Maintenance can be modified, the person seeking modification must show changed circumstances that justify modification. Spousal maintenance only becomes non-modifiable if the parties agree to make it non-modifiable. But for it be modifiable, it has to be awarded in the first place. If spousal maintenance is not awarded as part of the divorce decree or if the Spousal MaintenanceThese are payments made from one spouse to another when one spouse cannot financially meet their reasonable needs on their own. The law permits spousal maintenance (or alimony as it’s called in other states) for several reasons—to help maintain the lifestyle the parties enjoyed…Read more about Spousal Maintenance term expires, then the Court loses JurisdictionThe authority of a Court to hear and decide a certain issue. Each court’s ability to hear cases are defined either by a Constitutional provision, or, more commonly, by an Act of Congress (for Federal courts) or the state legislature (for state courts).Read more about Jurisdiction to modify spousal maintenance. Additionally, the Court cannot order someone to pay a nominal amount of spousal maintenance in order to keep jurisdiction for a future modification.
5. You can always modify by agreement; if you modify by agreement, you submit an updated order for the Court to sign.
The process of modifying by Agreement is simple and quick and far preferable to litigation: You write the Agreement up, submit it to the Court, and wait for the judge to sign it. For this reason, the Court will sometimes require parties to mediate before seeking a modification. But many times an agreement is not possible. If an agreement is not possible, you can file a Petition to ModifyA document that starts a case to change a current court order. This can include legal decision-making, parenting time, child support, and spousal maintenance.Read more about Petition to Modify, serve the other PartyAn individual, entity, or the state that either brings the lawsuit or is required to respond to the lawsuit. See ARFLP Rule 3(f).Read more about Party, and go through litigation.
Read more about Modifications.
