A substantial amount of family law litigation revolves around post-Decree orders: cases in which parties already have orders for Legal Decision-Making authority, Parenting Time, Child Support, or Spousal Maintenance, but there needs to be some revision made to one or more of those orders. It is often the case that modifications of original orders are even more conflictual and high-stress than the procedure involved in getting the original orders.
Generally speaking, most family court orders with respect to support obligations and children can be changed by “stipulation,” or an agreement of the parties. In the event the parties do not agree to a change, such orders can be changed based upon proving a “substantial and continuing change of circumstances” to the Court. That phrase is a term of art that is found in several statutes, procedural rules, and case law governing the issues. Essentially, it means a change that has occurred since the last orders were entered that significantly impacts the continued usefulness or fairness those orders, or that calls into question whether the orders remain in “the best interests” of the minor children at issue.
When it comes to Child Support, there is a modification procedure known as the “Simplified Process” for changing an existing child support order. It is a procedure by which the requesting party tells the Court what they think the child support amount “should be” and, after serving the other party, and that other party failing to file a response/objection to the requested amount within 20 days, the Court will enter the requested amount as an automatic order. The process happens very quickly. In the event the other party does respond and has an objection, the Court generally refers the matter to a Conference and Hearing where the parties are asked to meet with a Court staff member to try and mediate the issue and, if they are unable to do so, the parties have a hearing on the contested issues.
With respect to Legal Decision-Making and Parenting Time, there is generally no “quick” or “simple” process if the modification is contested. However, generally speaking, both of these types of orders can only be brought before a judge after the parties have participated in some form of mediation – either privately or through the Court. A modification action that is filed before required mediation is conducted risks being dismissed. It is imperative to review the current orders to find out if such a mediation requirement exists. Also, there may be time limits applicable to when a legal decision-making or parenting time order may first be modified, absent some emergency situation.
Both Spousal Maintenance and Child Support modification actions can be double-edged swords. Circumstances may have changed for the requesting party – but they may have also changed for the non-requesting party. One way that a person thinking of modifying these orders can be guided in their decision is to request the financial records of the other party. In all cases involving children, there is a requirement under the Arizona Child Support Guidelines that the parties exchange their financial information (tax returns, W2 forms, paystubs, etc.) every 24 months. This requirement appears in nearly all Decrees, Judgments and Child Support Orders, but it is, at least anecdotally, one of the least followed or remembered provisions. Exchanging this information can assist in the determination of whether a modification action should be pursued under the circumstances.
Given the multiple procedural and substantive rules governing modification actions, and the need to evaluate whether such actions are advisable, it is highly recommended that anyone considering modifying their current orders speak with a qualified attorney prior to beginning the process and/or immediately upon being served with a request for modification from the other party.
This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice, please feel free to contact family law attorney Lindsay A. M. Olivarez at www.udallshumway.com or contact an attorney in your community.