Post Decree Modifications

Relocation Hearings:  If one of the parties desires to move more than 100 miles from where they were living during the divorce, or decides to relocate outside of the State of Arizona, then the provisions of A.R.S. 25-408 are triggered.  This statute mandates that the moving parent give the non-moving parent 60 days of advance written notice of the proposed move by certified mail, return receipt requested.  The notice should state where and when the party and the child are moving and the reasons for the move.  The non-moving party then has 30 days within which to file a Petition to oppose the move.  These hearings are typically called Relocation Hearings and are among the more difficult decisions that a court is called upon to make because there is generally little, if any, room for compromise.  The relocation with the child either will or will not take place.  It is important to realize that a court cannot prevent a parent from relocating, but can prevent a parent from relocating with a child if the court decides that such a relocation will not be in the child’s best interest because it will take substantial time away from the other, non-relocating, parent. Acceptable reasons for moving a long distance with a child may include a change of job for a parent or his or her new spouse, return to a family of origin or domestic violence.  Each case is judged on its own merits after a full trial on the merits, including testimony and the admission of exhibits. *

Modification of Custody:  If one of the parties desires to change either legal or physical custody, or both, a hearing under
A.R.S. 25-411 must be held.  Unless there is an emergency, these hearings cannot be held for six months after the entry of the Decree in cases of Joint Legal and Physical Custody and for one year after entry of the Decree in the case of Sole and Separate Legal and/or Physical Custody.  This hearing begins with a Petition for Modification of Custody.  The Petition may be accompanied by Affidavits or verified.  The Petition must clearly state the reasons for the requested changes, the suggested new parenting time schedule, if applicable, and the substantial and continuing changes in circumstances that lead to the filing. The Petition, Notification of Filing and Affidavit of Minor Children are then served on the opposing party who has 20 days to answer.  If an Answer is filed, the matter is presented to the Presiding Domestic Judge for acceptance.  If the Petition is accepted, a Judge is assigned and the matter is set for a full trial on the merits.  If the Petition is rejected, the matter is dismissed.  These types of changes are serious and are only made if good cause is shown, meaning that they must be in the best interests of the child or children.  If only minor changes to the parenting time schedule are needed, then they can be accomplished with a Post-Decree Petition for Order to Appear, a less expensive and involved proceeding.  Under most parenting plans, mediation is required before a modification proceeding can be initiated.*

Modification of Parenting Time:  If one of the parties desires to modify parenting time, and post decree mediation has been unsuccessful, then a Post Decree Order to Appear (Modification of Parenting Time) can be filed.  The Petition should state the current parenting time schedule, the desired changes and the reasons for the desired changes.  If the changes are huge changes, i.e., going from every other weekend to every other week, then this would be considered to be a change in custody and the provisions of A.R.S. 25-411 as described above would apply.  But if the changes involve an extra day here or there, a change in hours because of a change in work or school schedules, a change in transportation or pickup or dropoff points, usually a Post Decree Order to Appear will suffice.

The Petition is prepared and served on the opposing party who generally has at least 20 days to respond. The matter then goes to an evidentiary hearing on the merits where testimony is taken from the parties and witnesses and exhibits are admitted into evidence.*

Modification of Spousal Maintenance:  Most spousal maintenance, or alimony, in Arizona in modifiable as to term and amount unless the parties agree prior to the entry of the Dissolution Decree that it is nonmodifiable.  If the spousal maintenance is modifiable, it can be changed by the filing of a Post Decree Petition for Order to Appear (Modification of Spousal Maintenance).  The Petition must be filed prior to the expiration of the current spousal maintenance order or it will be deemed untimely and dismissed.  The Petitioner may be the payor who is seeking to limit the amount paid or the term or both.  Or the Petitioner in the Post Decree proceeding may be the Payee who is seeking to increase the amount or duration of the payments.  The Petition is filed and served on the opposing party, together with Financial Affidavits accurate as of the date of the last order and current Financial Affidavits.  An evidentiary hearing, including testimony from the parties and witnesses, as well as the admission of exhibits, is then held.*

Modification of Child Support:  Child support may be modified pursuant to the Simplified Guidelines or pursuant to a Post Decree Petition for Order to Appear (Modification of Child Support).  The parties must submit Financial Affidavits, including an old one from the time of the last order and a current one.  The court looks at whether there has been an increase or decrease in income of over 10%.  If there has, then that party has proven a substantial and continuing change in circumstances sufficient for a modification.  In the simplified procedure, paperwork is submitted to the court showing the amount owed under the old order, the changes that have occurred and what the new order should be.  If there is no objection, the new order goes into effect after service and the time for response has passed.  If there is an objection, the matter goes to a hearing.  In the Post Decree Petition, the matter is set for hearing immediately, the Petition is served and the parties present testimony and exhibits.  Assuming that a substantial and continuing change in circumstance has occurred, the Judge then sets the new child support figure after application of the Child Support Guidelines.  The new child support is applicable from the first day of the first month following the filing and service of the Petition for Order to Appear.*

Enforcement of Property and/or Debt Divisions:  Sometimes one of the parties does not comply with the orders in the Dissolution Decree.  If the matter cannot be resolved, the compliant party can bring a Petition for Order to Appear (Enforcement of Decree) against the noncompliant party.  The orders which have not been followed should be clearly set forth in the Petition, together with the requested relief.  Usually, the Judge will uphold the orders in the original Decree unless extraordinary circumstances exist which would make following these orders unfeasible or impossible.  The noncompliant party may be held in contempt of court if the noncompliance is aggregious, resulting in fines, jail time or both.  In any event, the compliant party may be able to recover his/her court costs and attorney’s fees if it can be shown that the noncomplying party acted in bad faith, thereby necessitating the hearing.*

*The information in this message is general and should not substitute for the advice and counsel of a licensed attorney.