In issuing decrees in family law cases, courts will typically divide property and debt, establish legal decision-making and parenting time with the children, set child support and spousal maintenance, and make orders regarding responsibility for payment for fees generated by the case. For the most part, property and debt divisions are fixed. But while the decisions that courts make regarding the children and ongoing payments may be the best possible resolution at the time of the decree, circumstances can change with time. What may have been objectively best at the time the case was concluded may no longer be the best solution.
Unlike marital property and marital debt that are in fixed values and typically get divided or apportioned only once, other matters involve the ongoing lives of individuals and may change with time. Children get older, mature and may feel differently about any number of issues as the years go by. Parents’ personalities, conduct and interactions with their children may be different. The incomes and other financial circumstances of the parties may change over time as they may get raises and promotions, or layoffs, or embark on new careers, retire or sustain injuries that render them disabled.
When a party’s life brings change in one of these regards, the law recognizes that because children’s issues and ongoing financial obligations of one party to the other are ongoing, it must recognize that major changes in a person’s life may require significant changes to those issues and obligations. It is for this reason that the law provides for modification procedures.
There is not an unlimited right to modification. Minor changes will usually not warrant it. In order to consider modification, the court must be convinced that there has been a substantial and continuing change of material issues, and the party seeking modification has the burden of proof to convince the court both that the substantial and continuing has occurred and that the proposed changes to the prevailing court orders is the right way to deal with that change.
In addition, there are strict procedures by which claims for modification must be brought. In most cases, there is at least a year’s waiting period before a party can seek to change legal decision-making or parenting time unless that party can convince the court that the issue must be addressed sooner because the child’s physical, mental, moral or emotional health is at serious risk. With regard to financial issues, they must be significant in order to warrant modification. Child support may be modified by both simplified and standards methods. The simplified procedure requires a change of at least 15% in the child support amount to support a change.
Modification actions may generate a jurisdictional analysis.
Usually, the same court that made an order is the court that has authority to modify that order. But that is not always the case. For example, if a child who is the subject of a legal decision-making or parenting time order has been relocated to another state, the courts of the new state of residence may assume jurisdiction to modify those orders if neither parent has a significant connection with this state. Similarly, if parties relocate from another state to Arizona, the Arizona court may be able to assume modification jurisdiction of orders emanating from the other state if neither of the parties maintains a significant connection with that former state of residence.
Victor Garnice welcomes your inquiries on questions concerning potential modification proceedings and has successfully represented clients in numerous such proceedings over the years.