Post-Decree Modifications

Modification of Legal Decision-Making

If one of the parties desires to modify legal decision-making, a hearing under A.R.S. § 25-411 must be held. If a parent fails to comply with a joint legal decision-making order, a hearing modifying joint legal decision-making cannot be held for six months after the entry of the decree unless there is domestic violence, spousal abuse, or child abuse. Otherwise, a petition to change legal decision-making may not be filed for one year after the entry of the decree unless the court finds that there is reason to believe that the child’s present environment may seriously endanger the child’s physical, mental, moral or emotional health.

Modifications of legal decision-making begin with the filing of a petition. The petition must be accompanied by affidavits or verified under oath. 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 led to the filing. The Petition for Modification of Legal Decision-Making, Notification of Filing an Affidavit of Minor Children are then served on the opposing party who may file opposing affidavits.

If an answer or response is filed, the matter is presented to the Presiding Domestic or assigned Judge for acceptance. The court shall deny the petition unless it finds that adequate cause for hearing is established by the pleadings. If the petition is accepted, the matter is set for a full trial on the merits. If the petition is rejected, the matter is dismissed. Under most parenting plans, mediation is required before a modification of legal decision-making 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 Petition for 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 reasons for the desired changes. A substantial and continuing change of circumstances is required. A parent cannot file a petition to modify parenting time earlier than one year after the entry of a decree unless the court permits the filing on the basis of affidavits that there is reason to believe that the child’s present environment may seriously endanger the child’s physical, mental, moral or emotional health.

The petition is prepared and served on the opposing party who may serve a written response. The matter then proceeds 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, is modifiable as to term or amount, or both unless the parties agree 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 payer who is seeking to limit the amount paid or the duration 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 a financial affidavit, accurate as of the date of the last order, and a current financial affidavit. 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 one that was accurate at the time of the last order and a current one. The court looks at whether there has been an increase or decrease in the parties’ total income greater than 15%. If there has been, then that party has proven a substantial and continuing change in circumstances sufficient for a modification.

In the simplified procedure, a pleading is filed with 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. Assuming a substantial and continuing change in circumstances, child support is modified pursuant to the Arizona Child Support Guidelines, as amended. Changes in child support begin on the first day of the first month following the filing of the initial pleading.

In the post-decree petition, the matter is set for hearing shortly after the filing of the petition. The petition is served on the opposing party. The parties present testimony and exhibits at the hearing. Assuming that a substantial and continuing change in circumstances exists, the Judge sets the new child support after application of the Child Support Guidelines. The new child support begins on the first day of the first month following the filing of the Petition for Order to Appear.

Enforcement of Dissolution Decree

When one of the parties does not comply with the orders in the Dissolution Decree, the compliant party can bring a Petition for Order to Appear (Enforcement of Decree) against the non-compliant 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 non-compliant party may be held in contempt of court if the noncompliance is egregious, resulting in fines, incarceration, or both. In any event, the compliant party may be able to recover his or 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.