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 modification, some parts are not. Most notably, the division of property is generally not modifiable. However, if you discover—and can prove by 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 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 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 time and legal decision-making are modifiable, but the parent seeking 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 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 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 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 maintenance term expires, then the Court loses 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 Modify, serve the other party, and go through litigation.