How do I modify an existing modifiable spousal maintenance Order?

Unless the parties previously agreed that the spousal maintenance award was non-modifiable, a parent may attempt to modify and/or terminate an award of spousal maintenance for a variety of reasons. One of the more common reasons spouses seek to modify spousal maintenance occurs when a spouse experiences a substantial and continuing change of income and/or living expenses.

The court understands that 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 affecting 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.

A spouse seeking to modify and/or terminate a spousal maintenance order must file a petition for modification and attend a hearing at which time evidence is presented in support of the requested modification and/or termination. Discount Divorce & Bankruptcy is very experianced at handling just such documents and can manage all court processing and filing.

Bad Behavior Makes for Large Bill

Wife appealed from a trial court order requiring her to pay $552,000 as sanctions and fees to her former husband with respect to two post-dissolution matters. However, she found that her endless and reckless pursuit to achieve her desired result was not a view shared by the Court of Appeals.

At trial, Wife had assets of at least $6 million, though Husband claimed that she had over $30 million in assets. Wife’s ‘war’ on Husband, included not following the court's orders, not appearing in court, and failing to even accept the court's authority to make orders. The Court found her conduct “reckless”, saying that Husband had met his burden of showing that Wife dilatory and uncooperative conduct frustrated the policy of the law to promote settlement of litigation and cooperation among litigants. Further, the Court of Appeals stated that portions of the litigation lacked any legitimate legal basis.

The Court of Appeals affirmed the trial court’s orders. In fact, additional sanctions of $15,000 were imposed against the Wife and $10,000 against her appellate counsel on a finding that the appeal was frivolous.

In re Marriage of Wahl and Perkins
California Courts of Appeal, Sixth District
Case Number: H035712
Date Filed: February 2, 2012

Support Changes if You Don’t Visit as Agreed

A mother commenced dissolution of marriage matter, with a minor child, in November, 2007. In March and April, 2008, the trail court entered temporary orders, including an order for child support in the amount of $1,665.00 per month, and an order for temporary parenting time to Father of alternating weekends (First Parenting Plan, or “FPP”).

In September, 2008, the parties entered a Rule 69 Agreement, wherein they agreed to deviate from the Guideline calculation for support of $1,665.00 per month, to $300.00 per month, in recognition that Father incurred significant travel expense to travel from his state of residence, California, to Arizona to exercise parenting time pursuant to the FPP.

Thereafter, Father lodged a decree which purported the child support deviation to be “permanent.”Mother objected to the decree, alleging the Rule 69 Agreement did not include a “permanent” deviation. The trail court ordered the parties to arbitrate the final language of the decree. In October, 2009, the trail court adopted a revised parenting plan (“RPP”), where Father exercised parenting time only on “the second weekend of every second month.” On October 30, 2009, after the arbitrated decree had been finalized, but before the trail court entered arbitrated decree, Mother filed a petition to modify child support, alleging Father’s travel expense to exercise parenting time was reduced by entry of the RPP, and that Father did not exercise any parenting anyway. Thereafter, the trail court entered the decree, held child support modification hearing, denied Mother’s petition to modify support, and denied Mother’s motion for new trial.

As Mother argued to the trail court, Mother argued to the court of appeals that Father’s failure to visit the child and travel to Arizona, combined with the reduced parenting time of the RPP adopted at Father’s request), constituted a material change of circumstances warranting modification of the child support obligation. Father argued to the court of appeals that when the trail court entered the decree, it already adopted the RPP and, thus, the reduced parenting time did not represent a change of circumstances existing at the dissolution.

The court of appeals found settlement agreements do not preclude modification of support, custody, or parenting time: Settlement agreements, such as the parties' Rule 69 Agreement, do not preclude the modification of “terms concerning ... the support, custody or parenting time of children.” Ariz.Rev.Stat. (“A.R.S.”) § 25–317(F) (2001). An “order for child support may be modified or terminated on a showing of changed circumstance that is substantial and continuing.” A.R.S. § 25–503(E) (2009).

The court of appeals further found the difference in the anticipated travel costs associated with exercise of the FPP, and the travel costs actually incurred (or not incurred as a result of Father’s failure to exercise the RPP) is a substantial and continuing change of circumstance, which warranted a modification of the child support order, pursuant to A.R.S. § 25–503(E).

The court of appeals held the trail court abused its discretion by denying Mother’s motion for new trial, reversed the denial, and remanded the case for a new hearing on Mother’s petition to modify child support consistent with the court of appeals decision.

How Parents are Using Child Obesity as a Weapon in Divorces

I was reading the County Bar Associations newsletter and came accross this interesting article that was writen by Tamara Abraham that I found very interesting and would like to share.

Family lawyers have revealed how child obesity is increasingly being used as an argument in divorce court custody battles.

They say separating parents in the U.S. are now regularly accusing one another of allowing children to eat too much junk food, and not encouraging them to do enough exercise.

Risk of bullying and obesity-related diseases, such as diabetes, are often cited as reasons children should live with one parent rather than the other.

Douglas Gardner, a family lawyer in Arizona, told the Wall Street Journal: 'It's come up quite a bit in the last couple of years. 'Typically, one parent is accusing the other of putting a child at risk of developing diabetes or heart disease - or saying that the child is miserable because he's getting made fun of at school.'

While evidence and outcomes vary dramatically, it marks a shift in the nature of arguments employed in custody battles. Jeff Wittenbrink, a family law specialist in Baton Rouge, Louisiana, added: 'It used to be constantly and consistently about smoking. It's only been recently where one parent thinks their kid's not active enough, is gaining weight and eating sugary food.' In a survey by TotalAttourneys.com, lawyers said that the subject was becoming a bigger issue in custody battles because the public is becoming more conscious than ever of the health risks associated with obesity.

'If all things are equal but one person only feeds fatty foods and the children have weight problems... it can become an important distinguishing factor'.

Indeed, the trend follows a series of high-profile cases and debates surrounding the subject.

In 2009, a 555 pound teenage boy in South Carolina was taken into state custody after his mother was arrested and charged with criminal neglect. And just this summer, Boston obesity expert David Ludwig sparked controversy when he wrote in an article that 'in severe cases of childhood obesity, removal from the home may be justifiable.'

But, legal experts warn, the obesity argument is only likely to have impact in severe cases. Chicago lawyer Jonathan Merel explained: 'If one side is scratching to find something wrong with the other person, the courts might not give it the same weight. 'If all things are equal but one person only feeds fatty foods and the children have weight problems, I think it can become an important distinguishing factor.'

Custody Battles: Children in the Vortex

The maelstrom of conflict between parents in a divorce or custody battle often catches up the children and dashes them against the same rocks that brought the marriage to destruction.

Even the mildest custody conflict can damage children and their relationships with one or both parents, but the injury can be severe when the conflict is intense and where one or both parties bring the children into the vortex.

Judge Larry Primeaux, Chancery Court, 12th District of Mississippi has some great advice for parents. He says:


1. A custody dispute is not about winning or losing. Custody is decided on the basis of what is in the best interest of the children. No matter what the judge decides, his or her decision will be based on what is best for the children. Help your client understand [the relevant factors], how they apply in her case, and how to maximize her strong points while minimizing her exposure on the weak points.

2. Hate and revenge do not help. If your client’s motivation for custody is hate and/or revenge, he will be operating under a considerable disadvantage because (1) those are not positive factors under Albright for custody, and (2) they communicate to the children that they are spoils of war to be won instead of children who are to be loved no matter what the controversy is between the parents.

3. Never allow the children to make the custody decision. Children do not know what is best for them. They are subject to all sorts of influences, the strongest of which appeal to what they believe they want. It is appropriate to ask a mature child’s opinion, but only as input, never as a final decision. The parent or lawyer who tells a child “You will get to decide when you reach x age” is doing the child a great disservice because the law never gives the child a right to finally decide; that decision is always up to the judge.

Children who are made to decide often feel that they have betrayed one parent or the other. Making a child decide is putting the child squarely in the middle of the conflict.

4. Children who are placed in the middle learn to manipulate. Parents who put their children in the middle usually find that the children become master manipulators, playing both sides against each other to gain whatever it is that the child wants or thinks he wants.

5. Putting the children in the middle complicates the case. When the parties put the children in the middle, the resulting conflict spawns contempt proceedings, modifications, more discovery about all kinds of peripheral matters, and adds expense, stress, conflict and injured relationships to everyone’s plates.

6. Drop the drama. The only enjoyable thing about a divorce or custody battle for most people is the attention and sympathy they derive from others over the suffering and pain they have to endure. So when they find their friends’ and family’s attention wandering, they will ramp up the drama to regain the spotlight. That’s self-defeating because it usually takes some kind of negative action to stimulate the other side into conflict. The best and most productive policy is to drop the drama and act like an adult and a caring parent.

7. Act like an adult. The best behavior you can model for your children is to act like an adult. Treat the other party with the respect he or she deserves as parent of your child.

Eschew juvenile name-calling. Turn your back on invitations to argue. Avoid sarcasm and profanity. No threats, veiled or otherwise. Your children are watching and learning from your every move.

Do I need a Process Server?

In most Arizona family law cases you must prove to the court that the other party has been given their copy of the legal documents you filed. The faster you can have this proof filed with the court the better. Most family law cases must be completed within 120 days or the court will dismiss the case for "lack of prosecution".

With that being said typically most cases do not need to involve a process server if the other party is willing to sign that they received a copy of the legal documents. If the other party for example signs an "Acceptance of Service" then that can be used as proof of service. Discount Divorce provides the Acceptance of Service in all cases at no additional charge.

However, if the other party proves to be difficult or uncooperative then one alternative is have them severed by a process server.

What is Service of Process?

Service of Process is when court documents are delivered to the individual to whom the legal document is directed. Service of Process must be served by an individual who is not a party to the case. This may mean handing the documents to the defendant personally or sub-serving to someone in the same household. Once the documents are delivered, the process serving agent must provide proof that the papers were served. This is done through a document call an Affidavit of Service, also called a Proof of Service, which must be notarized in some cases and given to the party who requested service. In Arizona and most states, someone who performs service of process is required by law to be licensed.

Even if a process server does not need to be licensed in the state where you need service, you should keep in mind that a process server is someone who is experienced in serving legal documents efficiently. More importantly, professional process servers are knowledgeable of the legislation surrounding service of process in their state or county. There are several requirements and constraints associated with serving legal documents that vary from state to state, or county to county. If the service is not performed in accordance with the law, this can hinder your case from going forward or result in the dismissal of your case.

Discount Divorce has process servers in all 50 states and in 3,140 counties. We can serve your legal documents almost anywhere in the United States.

For more information visit DiscountDivorcePro.com

Difference Between Chapters 7 & 13 Bankruptcies

Going Bankrupt: Repayment of Your Debt

The biggest difference between Chapters 7 and 13 bankruptcies is the repayment of your debt. Chapter 13 bankruptcy involves a court-ordered repayment plan where a portion of your debt back is repaid to your creditors. In a Chapter 7 bankruptcy, there is no repayment plan and certain debts can simply be eliminated.

Length of Chapter 7 and Chapter 13 Bankruptcy Process

The second major difference between the two chapters is the time it takes to complete each chapter’s filing process. While a Chapter 7 bankruptcy filing usually only takes 4-6 months to complete, a Chapter 13 bankruptcy is a much longer procedure and usually lasts 3-5 years.

Protecting Assets v. Possible Liquidation

Your assets are protected in a Chapter 13 bankruptcy and the bankruptcy can even help you save assets that are facing foreclosure or repossession -- such as a house or car. Since a Chapter 13 bankruptcy in not a liquidation bankruptcy, you are able to keep your assets even if your states exemptions do not completely protect them. In a Chapter 7 bankruptcy, although it rarely happens, the Bankruptcy Court can liquidate your assets if they are not protected by your state’s bankruptcy exemptions. Your state probably has a specific exemption to protect a portion of equity in your house or car.

For more information go to DiscountDivorcePro.com