A divorce decree is the court’s final ruling and judgment order that makes the termination of a marriage official. Each divorce decree will be different, but in general the purpose of the decree is to summarize the rights and duties of each party in connection with the divorce. Divorce decrees normally contain information regarding division of assets and liabilities, spousal maintenance, child support, legal decision-making, parenting-time, and other financial related issues.
What Constitutes A Change in Circumstance?
Divorce decrees are final, so, with some very narrow exceptions, court rulings cannot be re-decided. This does not mean that divorce decrees cannot be modified; however, the required basis for modifying a final divorce decree is generally a finding of substantial and continuing change in circumstances. For example, if your ex-spouse was ordered to pay spousal or child support and gets a substantially higher paying job, this may warrant a recalculation of the support amount. However, there are many factual and legal issues that must be analyzed to determine if a “substantial and continuing” change in circumstances exists. And that is the thresh-hold that must be met before the court may consider modifying most orders within a final decree. Hence, it is very important to properly analyze that issue prior to ever filing such a Motion. Asserting a Motion for Modification without proper basis exposes the filing party to an award of attorney’s fees payable to the other side for fees and costs expended in defending the faulty claim. Generally if the moving party meets his/her burden of proof, the court can modify child support, legal decision-making, parenting time and spousal maintenance orders after a divorce decree. However, the exceptions allowing modifications to orders on assets and liabilities are minimal.
Do I Need a Lawyer?
The court process for obtaining a decree modification can be confusing and stressful, and can often include several visits to court, so it may be in your best interest to meet with a family law attorney who is well versed in this process. Working with a family law attorney can help you understand your options and help make sure that the proper steps are taken to protect your rights and interests. If the former spouses agree to modify terms of the original decree, the agreement must be in writing and submitted to the court. Even if former spouses agree, it is good to have an experienced family law attorney draft the language of the Agreement so that the parties know what they are executing is actually that to which they have agreed. Often, the courts, judges and attorneys employ words and phrases as “terms of art,” which mean the words or phrases mean something different to the courts, judges and attorneys than to the average party or parent. For this reason, it is best to have an attorney draft agreements between parties. The parties can then sign the agreement and file it, etc. If one of the former spouses wants a modification but the other does not, the process of modifying the original divorce decree begins with a Motion for Modification. The Motion is filed with the court that issued the original decree. The Motion must then be served on the other spouse. After the motion is served, the other spouse typically has a matter of “court days” to file a response, after which a hearing is held. If you want a modification, it’s up to you to present proof of the continuing change in circumstances that warrant the modification. If the motion is to modify custody, child support or visitation, you must also present evidence to show the court why the modification is in the best interest of the child[ren].
This narrative is not intended as a comprehensive explanation of divorce decree modifications in all cases and under all circumstances in Arizona. The law must be applied to the specific facts of each case. Our Judges interpret these laws and the cases interpreting these laws in fluctuating manners depending on a number of factors, giving varying weight to the different factors sighted in our statutes, rules and case precedence. If you are interested in a comprehensive consultation on your rights in the state of Arizona as they pertain to divorce decree modifications Kent Lee Law can provide you with the answers you need. Please feel free to call (623) 889-7760 to schedule an appointment and discuss your options.
