After the Final Judgment has been entered on a parenting plan, alimony, or child support, there may be a substantial change of circumstance that warrants assessment of modification. Whether you are the party seeking change or defending against it, Heskin Martinez Law Group has expertise in modifying final judgments, no matter what the subject of focus.
Generally the party seeking modification must be able to demonstrate to the Court that there has been a “substantial change in circumstances” since entry of the last Final Judgment and that the change was both involuntary and not contemplated. Depending upon the subject matter, there are additional individual considerations.
Modification of Alimony
Whether alimony can be modified first depends upon the nature of the original award – and what, if any, limitations to modification were agreed to in a Marital Settlement Agreement (MSA) or Nuptial Agreement (if applicable).
The first rule is that alimony can only be modified by the state in which the original award was rendered. Next, certain forms of alimony (i.e. bridge the gap and alimony that was paid by lump sum) are not modifiable.
There have been a lot of changes around alimony law in recent years, so depending upon the timing of your Final Judgment some of those developments might apply to limiting – or expanding – your modification options as well.
The burden of proving modification of alimony is on the party seeking change. That party must prove substantial changes that were not contemplated at the time of the original agreement and/or judgment. The financial changes must be sufficient, material, involuntary, and permanent.
Contemplated is not the same as foreseeable or anticipated. Contemplated means that the condition was factored into the settlement or adjudication prior to making the alimony award.
The court can look at reduction of the receiving spouse’s expenses in determining if a change has occurred. Other potential reasons for modification of alimony include the imminent and reasonable retirement of the paying spouse, or the receiver spouse being found to have entered into a “supportive relationship” with a third party.
Modification of Child Support
The party who seeks a modification of child support has the burden of proving, by a preponderance of the evidence, that there has been a substantial change of circumstances justifying modification. The change must be significant, material, involuntary and permanent. Thus, an Obligor’s decision to pursue a less profitable business for lifestyle reasons is competent substantial evidence of voluntary underemployment, and a basis to reject modification.
A child support modification must be plead with specificity – which means only the basis for change as raised by the petition may be considered. Unless a parent is seeking recalculation due to non-compliance with the parenting plan, the relevant lookback date for modification is the date of filing of the petition for modification.
Overpayment of child support is generally deemed to be a gift to the child (absent evidence that it was understood to be a loan). Modification of child support is within the sound discretion of the circuit court, and a modification order will not be disturbed on appeal in the absence of a clear showing of abuse of that discretion.
The moving party must not only provide evidence of their present financial status but must also provide evidence of their financial status as of the date of filing the Supplemental Petition and its final hearing. These figures are thereafter compared to the findings of the last entered child support judgment.
Changes warranting a modification of support can include the following:
- Loss of job or a newer high paying job
- Substantial increase or decrease in income due to forces outside of one’s control (notwithstanding their use of best efforts to return to the same level of employment)
- Illness
- Injury
- A child turning 18 or graduating high school
- The substantial change in health insurance expenses for the child
- A substantial change in daycare expenses for the child
- A permanent change to the time-sharing schedule
Modification of Parenting Plan
Modification of a parenting plan is a fact-intensive assessment, and any proposed change must be found to serve the best interests of the child. That is a criteria defined by statute, not by a parent’s opinion. Certainly, if there are issues involving the safety of the child the decision to pursue modification can be clear. However, there are many other circumstances that are not as straightforward, and will depend greatly on the unique facts and circumstances of your case
A petitioner for modification of a Final Judgment that had set a parenting plan or time-sharing schedule has the burden to show (1) there has been a substantial change in circumstances since the judgment was entered, and (2) the child’s best interests will be advanced by the requested modification.
A substantial change in circumstances must be one that is “material” and represents a change since the last judgment. Thus, a petitioner must present new evidence as to the parties’ factual circumstances that was not presented in the original proceedings. This first prong is the “threshold issue” of any modification action, and it is the one the movant for change must prove.
Some common themes that have emerged and been settled by case law include:
- A parent requesting modification must establish more than an acrimonious relationship and a lack of effective communication to show a substantial change of circumstances.
- Change in a parent’s work schedule does not alone merit modification.
- Evidence of improvements in the mental health of a party (“improved life circumstances”) after a parent known to have mental health issues has undergone counseling and engaged in medication are not substantial unforeseen changes of circumstances.
- A parent’s oral or implicit consent to a change in the original court-ordered plan or to allow extra visitation is not a basis for modification.
- The fact a parent has engaged in more than one change of residential address since entry of the Final Judgment is also not basis for modification.
- Relocation of a parent, alone, does not equal a substantial change of circumstances. However, per statute, if the parents were in a long-distance schedule and a parent moves closer, then that may be considered a “substantial and material change” and time-sharing may be modified accordingly, provided it is in the child’s best interest.
- Even when the majority time-sharing parent does not keep the co-parent informed of information regarding the child, the offended parent can keep him or herself informed. Such evidence only establishes a communication problem and does not constitute a change in circumstances for the purposes of a time-sharing modification.
In short, you have to have more than just a bad co-parenting relationship or generalized “disapproval” of how your co-parent’s approach to your shared duties differs from your own priorities.
In addition, in the state of Florida there is no magic age where the child can decide where he or she wants to live. In fact, it can be incredibly harmful to put the child in that position, particularly when the Court will not enforce such a request, so do not even ask.
That being said, there are some circumstances (depending on the age and maturity of the child) where their preferences can be considered – but be forewarned that this feedback is only one of 19 other best interest factors and several other modification criteria that the court must consider.
Whether and to what extent the child is involved in any court action can be very tricky and can backfire on a parent if the Court believes you have inappropriately involved the child in the litigation. Thus, it is best to seek the guidance of a professional when you believe a modification action may be appropriate.
Relocation
Florida law has made it quite difficult for a parent to relocate on a whim and makes certain that any proposed move only be permitted in situations where the requesting party meets “the burden of proving by a preponderance of the evidence that relocation is in the best interest of the child.” A move that is shown to be in the parent’s own best interest is insufficient to convey that to the child’s best interest; moreover, the burden of proof is preponderance of the evidence and is to be met by the relocating parent.
It is only if that qualification is met that the burden shifts to the non-relocating parent to show by a preponderance of the evidence that the proposed relocation is not in the best interest of the child.
The law requires strict compliance with the steps to request relocation; thus, if moving 50 miles or more from your co-parent is a goal, you need to seriously consider hiring an experienced family law attorney to help you, since relocation of a child from their established community of record and/or from the “same city” 50 mile radius of both parents is notoriously difficult to achieve by Court order.
The lawyers at Heskin Martinez Law Group have 30 years of experience dealing with these issues and have seen what can warrant modification and what is not worth pursuing.
Questions about Modification of a Final Judgment? Call us at 407-403-5990 or contact us (below) to schedule your appointment.