Table of Contents – Divorce Modification with Children
Need to speak with a lawyer? Call our offices at (602) 254-8880, phones answered 24 hours a day.
It is possible to obtain a change in the “Final Judgment” or “Decree of Dissolution” after it has been finalized by a Judge. Many times this can be accomplished by directly attacking the Judge’s ruling or by seeking to work with the Judge in order to achieve a Modification of the “Decree” which has been in effect for quite some time. Although this website will provide some general information as how to obtain Relief or Modification within the State of Arizona, it is always recommended that you contact The Cantor Law Group immediately to set an appointment for a free initial consultation to discuss divorce modification with children.
Motion for New Trial
Once the Judge’s “Decree of Dissolution” is filed, then certain time limits begin to run with respect to a “Motions for New Trial”. A Motion for New Trial must be filed within 15 days after the Decree of Dissolution is filed by the Judge; otherwise, this remedy will no longer be available. Motions for New Trial are very rarely granted due to the fact that they can only be supported by very specific grounds. If the specific grounds do not exist under the rules regarding a Motion for New Trial, then it is wiser to file an Appeal.
Once the Judge’s “Decree of Dissolution” is filed, then certain time limits begin to run with respect to an Appeal. The Appellate process starts with a “Notice of Appeal” that must be filed within 30 days after the Decree of Dissolution is filed. The grounds for Appeal can be based on many more factors than allowed for by the Motion for New Trial. The most common Appeal is based on the admission or exclusion of evidence over a Trial Attorney’s objection. These Appeals must be filed with the Arizona Court of Appeals. Many times the Court of Appeals will find that the Trial Judge committed an error, yet it did not rise to a sufficient level allowing them to overturn the “Final Judgment”.
If the Court of Appeals does determine there was “harmful error”, then the case will be remanded back to the Superior Court for a New Trial. At The Cantor Law Group, we have extensive Appellate Court knowledge. Not only have some of our attorneys’ more significant cases been published in the Arizona case law reporters, but members of the firm have also argued various issues in front of the Arizona Supreme Court on numerous occasions.
Modification and Enforcement
Once a “Final Judgment” has been issued by way of a “Marital Settlement Agreement”, “Trial Judgment” or “Appeal”, then the parties are obligated under the terms of the “Decree of Dissolution”. In regards to “Enforcement,” if either of the spouses fail to abide by their terms, then the Judge can issue an “Order to Show Cause” as to why the Court should not hold that party in “Contempt”. It is at this point that the Judge can issue sanctions ranging from simple monitary amounts, all the way to imprisonment. Another enforcement tool the Judge possesses are garnishments of one spouse’s wages to collect on past due “Child Support” payments. The Judge also has the power, in some cases, to revoke a party’s driver’s license or begin proceedings that would result in the loss of a professional license or certification. If you have retained us in order to seek Enforcement of a previously existing Decree, please provide our paralegals with a copy of the most recent Decree of Dissolution and copies of all canceled checks of payments made to date.
In regards to “divorce modification with children”, on many occasions one spouse’s circumstance will change over time and it is necessary to ask for a Modification of the prior “Decree of Dissolution”. This could be due to the loss of a job or reduction in income of one spouse, or health issues and medical bills which may arise due to illness of a child. It is especially important to Modify the Decree of Dissolution if circumstances have changed and they are effecting the “best interest” of any of the children involved. It is important to put together all documentation and witnesses who could support your claim that a Modification is immediately necessary. At The Cantor Law Group, we are familiar with all Post Judgment Enforcement and Modification issues and can help you immediately!
Modification normally falls into three specific areas of divorce modification with children: Modification of Spousal Maintenance; Modification of Child Custody; and Modification of Child Support. The following three categories are addressed:
Spousal Maintenance (i.e. Alimony)
In the State of Arizona, “Spousal Maintenance” is not designed to be punitive in nature. It’s overall purpose is to assist a spouse in maintaining the standard of living enjoyed during the marriage, and to assist in the transition from living together as a unit to being two independent people. Numerous factors are considered under Arizona law in determining if Spousal Maintenance should be Modified. Many of these factors are the exact same factors which were examined at the time the original Decree of Dissolution was awarded. The following is a partial list of reasons for Modifying Spousal Maintenance:
- The ability of the spouse seeking Maintenance to independently meet their needs (either through separate property or other factors)
- Inability to support oneself through employment
- Inability of the spouse to work due to the young age of the child/ children
- Whether one spouse contributed either financially or through time to the educational opportunities of the other spouse
- Length of the marriage coupled with older age which now precludes the possibility of gaining sufficient employment
- Length of time it would take for a spouse to acquire sufficient education for proper employment
- Both spouses future earning capacities
- Standard of living during the marriage
- Length of the marriage
- The ability of the spouse providing the support to maintain their standard of living while paying out spousal maintenance
- Whether either spouse destroyed, wasted, concealed, or gave away any Community Property
- The comparative earning abilities of each spouse
- The ages of the spouses
- The physical and emotional condition of each spouse
- Jobs held by either spouse during their marriage
- The educational/ vocational skills possessed by the spouse seeking Maintenance
It is important that you prepare a list of all relevant information regarding Spousal Maintenance and provide it to our office as soon as possible. The above list is not all inclusive, and can include any other items which you believe are relevant.
Child Support Modification
The Judge can order either spouse to pay “Child Support”. (This is money to be used to house, feed, and educate the child). Determination of Child Support is based upon numbers, and not who was the “better parent”. The following factors are considered:
- The financial resources of the child
- he standard living the children were enjoying at the time before the marriage dissolved
- Any medical, educational, or mental health needs of the child
- The financial resources and debts of both parents
- Whether any jointly held property had been destroyed, concealed, fraudulently disposed of, or whether any excessive expenditures were made
- The amount of time the child spends at each parent’s house (if there is Joint Custody) and any related expenses
It is important that you prepare a list of all relevant information regarding Child Support and provide it to our office as soon as possible. The above list is not all inclusive, and can include any other items which you believe are relevant.
Child Support is normally determined by specific Arizona Supreme Court Guidelines. These guidelines are based upon mathematical formulas that look at numerous factors. These factors can include the incomes of the parties, the amount of time spent at each parent’s residence, who pays for the children’s health insurance, and other Child Support obligations or support of other natural children living with a spouse. At The Cantor Law Group, we use a specially designed computer program known as “Cassandra”® which can quickly and accurately determine the amount of Child Support due to, or from, each spouse.
When determining the amount of Child Support owed, income is normally the most important factor. This not only includes standard paycheck wages, but also bonuses, commission payments, overtime, disability payments, social security income, income from rental properties, and income from intellectual property such as royalties. The Court can also view stock option plans (which are non-retirement) as income. If one spouse is not working, the Judge can still assume that this non-custodial parent is capable of obtaining a job at minimum wage for 40 hours a week. Exceptions include if the parent is under the age of 18 years of age and is currently enrolled in high school, or if there is other evidence that is presented to the Court as to why an individual cannot work.
If one of the spouses is self-employed, then normally very extensive “Discovery” is required to determine their true income. This is due to the fact that cash receipts are normally involved, and many personal expenses are covered as business expenses. It is important to have a knowledgeable law firm such as The Cantor Law Group to examine all aspects in order to determine “true income”. Many times tax returns will not match the true income and a simple examination of a prior loan application (or other financial documents) will pin down a spouse as to what they were truly earning.
All Child Support orders must assign one or both spouses the responsibility of paying for medical insurance coverage, and for payment of all non-covered medical expenses. In addition, any income of a new spouse or new significant other will not be considered as to whether one parent should be paying their obligation. In other words, it is irrelevant if your new spouse is a multi-millionaire, your old spouse still needs to pay for their Child’s Support.
Child Custody Modification
When Modifying “Child Custody”, the Court considers numerous factors as to what is in the “best interests of the child”. These factors are as follows:
- The preference of the child
- The ability and wishes of each parent to provide a frequent and loving relationship between the child and the other spouse
- The preference of the parents
- The child’s attachment to his/her home and school
- Physical and mental well-being of the child and the parents
- The relationship between the parents and child and between the child and siblings
- Whether or not there has been evidence of child abuse in the past
- Whether or not there has been evidence of domestic violence in the past
- Any duress, coercion or unfair methods used to obtain a custody agreement
- Which spouse was the primary childcare provider
- Any criminal convictions for sex crimes or drug/alcohol abuse
In many cases, the spouses will agree to have their attorneys’ file a written agreement providing for “Joint Custody”. This is normally determined to be in the best interests of the child. This written agreement is usually called a “Joint Parenting Plan”. This plan helps to determine Custody issues and visitation schedules (i.e. for holidays, weekends, birthdays, etc.). The Judge will also determine whether Joint Custody is feasible (i.e. with regards to the distances in which the parents live apart, works schedules and things of that nature). In certain cases, the Court will order Joint Custody over the objection of one of the parents (this is not uncommon). In addition, the Court can order visitation rights to the grandparents if they have filed the proper paperwork with the Court.
Courts generally wish to hear testimony by an expert witness when deciding Child Custody issues. In many cases, it is wise to do a “Custody Evaluation” or “Dispute Assessment” which includes a “Request for Appointment of Mental Health Expert”. The Mental Health Expert will conduct a variety of tests on not only the children, but also the parents. They will then interview the parents, children, and any other witnesses which may assist the expert on preparing his recommendation for the Judge. They are also allowed to use information from confidential sources when preparing their Report and providing their opinion. These Reports can either be agreed upon by the parties or the Judge can order the Custody Evaluation over both parties’ objections. At The Cantor Law Group, we have access to numerous expert witnesses who are available to best serve our clients and assist the Judge in making a determination regarding what is in the “best interests of the child”.
When one spouse wishes to move out of the area, or out of Arizona, and they wish to take the children with them, then very specific steps need to be undertaken. The Court will always look to the standard issues as to what is in the “best interest of the child”. All of the same issues will be explored as in any other “Child Custody” case plus some additional issues. The judge will normally look to see if there is Sole or Joint Custody, and whether the purposes of the move is to frustrate the visitation rights of the remaining party. Obviously, Sole Custody moves are normally granted, whereas Joint Custody cases are normally litigated extensively. When litigation is necessary, the entire Child Custody issue will be re-examined as if the case were in its initial stages. Normally, the moving party must show a “substantial change in circumstances” which would justify the move (such as obtaining a new job which pays substantially more than the prior job; living with a terminally ill parent; being transferred for their job, or things of that nature). Simply moving in and of itself will not qualify as a “substantial change in circumstances”.
Many Courts will appoint attorneys for children (i.e. Guardian Ad Litem) if the Judge finds that the parent’s position may be in conflict with the “best interests of the child”. Sometimes this will occur if the child is insisting on being with one parent, although a Judge may feel that it conflicts with their best interest. This also helps prevent the parties from playing “tug-of-war” with their child. The Guardian Ad Litem may agree with 90% of what each attorney wants, but may disagree adamantly with the other 10%. He will then give his honest opinion and fight for what he believes to be in the “best interests of the child”. Many times this will result in a compromised position that satisfies not only the child’s best interest, but also the parents’ and the Court’s general wishes.
Remember, the most important determination in awarding Child Custody (either Sole or Joint Custody) is what is in the “best interests of the child”. This is the way it should be! At The Cantor Law Group, we are familiar with all Post Judgment Enforcement and Modification issues and we can help assure that all information that you wish to present to the Court regarding you “child’s best interests” are fully taken into consideration.