Child Support Modification Time!

April is almost over, which means that the month of May and high school graduations are rapidly approaching!  This is the time for most parents with a senior in high school to file to modify or terminate a child support obligation.

            Arizona law defines the emancipation of a child for child support purposes as generally taking place when the child is both eighteen years of age and has graduated from or is no longer attending high school.  This means that most parents of high school seniors will need to modify or terminate child support effective May 31 so that the high school senior is no longer covered by the support order.  May 31 is also the appropriate end date for the support obligation if your child is still under the age of eighteen but is graduating from high school in May. 

            Modification is the appropriate process if there is another minor child common to the relationship that is covered under the support order.  Termination of the support order should be requested if the child in question is the only child or the youngest child covered by a Child Support Order.

            In the event that child support arrears are owed, and a termination of the support order is requested, the Court will terminate the ongoing child support amount but will require payments on the arrears until they are satisfied in full.

            It is important to note that the Court does not track when your children are emancipating, and the Court will not take any steps to terminate or modify your support order for you.  It is your responsibility to prepare and file the appropriate paperwork in a timely manner to address these issues.  Contact McNorton Fox PLLC for guidance if you are interested in pursuing a change to your Child Support Order! 

-Erin Fox

Updates on Retirement Division

Retirement division is often a thorny subject in a divorce proceeding, and it is at its most complicated when a defined benefit plan is in question.  A defined benefit plan is a retirement benefit that does not have a savings account component.  Instead, the benefit is usually determined by the employer after considering factors such as the length of employment and the highest or most recently earned wages of the employee.  A pension is a defined benefit plan.  So is military retirement, Arizona State Retirement System benefits, Public Safety Personnel System benefits, and more.  Defined benefit plans are often the most valuable asset of the marriage, and they are difficult to value.  Even if a financial expert is able to quantify a present day cash value for a defined benefit plan, sometimes there are not enough other assets to be divided for the employee spouse to buy out the other spouse’s interest.  One of the hardest issues to address then becomes how to address the plan division if the employee spouse continues to work after the marriage ends. 

            The seminal case in this area is Koelsch v. Koelsch, which was decided by the Arizona Supreme Court in 1986.  The primary issue addressed in this decision was how to handle a situation where the employee spouse voluntarily decided to continue working past the date when he was eligible to retire, which in turn postponed the date when his former spouse could receive her share of his pension.  The Arizona Supreme Court ruled that the employee spouse did not have the right to deprive his former wife of her property interest in his pension.  The Court required the employee spouse to pay his ex-wife the amount she was entitled to receive from the pension out of his own pocket each month to compensate her for the delay of her receipt of the pension money.

            In the two-plus decades since Koelsch was decided, it has played a significant role for employee spouses in determining when they will retire.  It has also spawned litigation where the non-employee spouse has wanted to recover pension payments that he or she would have been entitled to receive if the employee spouse delays retirement past the eligibility date.

            However, over the past several months we have seen two cases that have pushed back at the Koelsch precedent.  The first is the Barron v. Barron decision out of Division One of the Arizona Court of Appeals.  This case found that 10 U.S.C. §1408 prohibits the courts from requiring a military member to indemnify a former spouse if the servicemember chooses to continue to serve in the military after becoming eligible to retire.  The holding in Barron essentially means that Koelsch no longer applies to military pensions.

            The second decision that has narrowed Koelsch is also from Division One of the Arizona Court of Appeals.  It is called Quijada v. Quijada and was issued in February 2019.  In this decision, the Court found that the non-employee spouse must explicitly reserve the right to pursue Koelsch payments of retirement at the time of the divorce to obtain compensation from the employee spouse if the employee spouse postpones retirement and continues to work.   The Court of Appeals found that if the right to these payments is not reserved, and the non-employee spouse pursues Koelsch payments after entry of the divorce decree, the request for the payments is an impermissible request to modify the property distribution in the divorce decree.

            These two decisions have significantly narrowed the scope of Koelsch v. Koelsch.  It remains to be seen if further changes to the division of defined benefit plans will be forthcoming.

-Erin Fox

What’s in a Name?

            Changing a child’s name is an issue that comes up frequently in paternity actions.  Sometimes one parent will not have had any input in selecting a child’s name and will want changes to the entire name.  More frequently the dispute will be on what last name the child should have. 

            A.R.S. §12-601 governs changing a name in Arizona.  This statute requires the party requesting a change of name for a child to avow that he or she has not been convicted of a felony or convicted of a crime involving false statements or misrepresentations about another person’s identity.  The movant must also affirm that the name change is not requested for the purpose of furthering or committing a crime, to release the child or the parent from financial obligations, or to harm a property right in the child’s original name.

            Additionally, when a name change is requested on behalf of a child, and the parents are not in agreement on the name, the family law judge must also consider the factors outlined in Pizziconi v. Yarborough, 868 P.2d 1005 (1993).  Division One of the Arizona Court of Appeals directed the court to consider the following:

            A.        The child’s preference

B.         The effect of the change on the preservation and development of the child’s relationship with each parent

            C.         The length of time the child has borne a given name

D.        The difficulties, harassment, or embarrassment that the child may experience from bearing the present or proposed name

            E.         The motive of the parents

F.         The possibility that the use of a different name will cause insecurity or lack of identity

            The court will utilize these factors and any other relevant information to determine what name is in the best interests of the child.

-Erin Fox