YOU’RE DIVORCED AND NEED SOMETHING TO CHANGE.
You are already divorced and you need a change to custody, visitation, alimony or child support. Or maybe you need to relocate somewhere, so the terms of your divorce need to change.
The court judge who entered the support order regarding spousal support, also known as alimony, retains the power to enforce the spousal support and to consider any requests for modification.
To have your spousal support modified, you must be able to show three things:
- A substantial change in circumstances
- the change was not contemplated at the time of the final judgment
- the change is sufficient, material, involuntary and permanent
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SUBSTANTIAL CHANGE OF CIRCUMSTANCES
The substantial change of circumstances must have occurred after the entry of the order awarding spousal support. The following are some examples of a substantial change of circumstances:
- the loss of a job due to a permanent disability which prevents the spouse paying the alimony from earning a living from work.
- the spouse receiving the spousal support now earns a substantial living from a career that negates her need to receive spousal support.
- the spouse receiving the alimony received an inheritance reducing her need to receive spousal support.
- an unexpected deterioration in the receiving spouse’s medical condition that increases her needs for support.
Contemplated does not mean “anticipated.” Rather, contemplated means more than just thought about or talked about. Whether a substantial discussion took place is important, along with whether the change was accounted for when they agreed on the terms of the spousal support.
Any reduction in a former spouse’s ability to pay spousal support must not be the result of a voluntary act and that there was no intent of evading the obligation to pay spousal support. For example, a former spouse who decides to quit a good paying job to pursue a life-long hobby with no chance to earn income at a level similar to his or her previous employment is a voluntary choice. Another example might be a former spouse who has failed to pay his tax debt and can no longer afford his spousal support payments and pay off his tax debt. Not paying taxes is a voluntary choice that cannot be used as a reason to modify a spousal support obligation.
Any substantial change justifying a spousal support modification must be permanent in nature. In other words, it must be more than temporary.
In one case, a court judge granted a modification when the income of the former spouse paying spousal support dropped from $80,000 to $13,000 and stayed at that level for two years. However, if you can show that the change in circumstances has lasted for one year or more is generally enough to demonstrate permanence.
INCREASED INCOME DOES NOT JUSTIFY MODIFICATION
Spousal support involves two considerations. First, the need of the person receiving the spousal support. Second, the ability of the person paying the spousal support.
An increase in the ability of the person paying the alimony is not enough to justify a modification without demonstrating that the needs of the person receiving the alimony have increased.
CHILD SUPPORT MODIFICATION
Either parent may apply for a modification whenever the financial circumstances of either party changes substantially or when the child reaches the age of majority. There are basically three grounds for modification:
- when the modification is in the best interest of the child
- when the minor child reaches majority, is emancipated, marries, joins the military, or dies
- when there is a substantial change of circumstances of either parent
It is interesting to note that the substantial change of circumstances requirement may be met if the child support amount provided by the Florida Child Support Guidelines under the current circumstances of the parties is different by at least 15% or $50.00, whichever is greater, from the previously ordered child support amount.
If you are divorced and receiving child support and your child later becomes dependent because of a mental illness or other disability, you can apply for a modification and receive child support beyond your child’s eighteenth birthday.
Also, if your child is special needs and will be dependent for the rest of his or her life, your child can receive child support beyond his or her eighteenth birthday.
SUBSTANTIAL CHANGE OF CIRCUMSTANCES
If you want to request a modification of child support based upon a substantial change of circumstances, you must prove that the change is significant, material, involuntary, and permanent.
A substantial and material change is one that significantly impacts the ability to pay support. For example, when the parent paying child support experienced a reduction in his income by 48% for a two year period, a modification lowering his child support obligation is justified.
This is probably best explained by the following examples:
- a realtor who suffers a substantial, involuntary, and permanent decrease in income due to a slump in the real estate market should have child support reduced
- a parent whose income went from $146K to $89K when they were forced to change employment should have child support reduced
A permanent change is one that last for at least one year. A request for a child support modification will likely be denied if you recently lost your job. However, you may be able to request a temporary reduction in child support until you can secure employment paying at level you were previously earning.
HOW FAR BACK CAN A MODIFICATION GO?
Child support may not be modified prior to the date that a petition for modification is filed. A court judge has no authority to grant a modification retroactive to a date prior to the filing of the modification action.
SOCIAL SECURITY BENEFITS
A minor child’s supplemental security income (“SSI”) benefits due to a child’s medical condition are not credited against a parent’s child support obligation.
PARENTING PLAN MODIFICATION
To modify a parenting plan, you must be able to show a substantial, material and unanticipated change in circumstances and that the modification is in the best interest of your children. A court judge determines the best interest of a child by evaluating a list of factors as follows:
(a) The demonstrated capacity and disposition of each parent to facilitate and encourage a close and continuing parent-child relationship, to honor the time-sharing schedule, and to be reasonable when changes are required.
(b) The anticipated division of parental responsibilities after the litigation, including the extent to which parental responsibilities will be delegated to third parties.
(c) The demonstrated capacity and disposition of each parent to determine, consider, and act upon the needs of the child as opposed to the needs or desires of the parent.
(d) The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.
(e) The geographic viability of the parenting plan, with special attention paid to the needs of school-age children and the amount of time to be spent traveling to effectuate the parenting plan. This factor does not create a presumption for or against relocation of either parent with a child.
(f) The moral fitness of the parents.
(g) The mental and physical health of the parents.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.
(j) The demonstrated knowledge, capacity, and disposition of each parent to be informed of the circumstances of the minor child, including, but not limited to, the child’s friends, teachers, medical care providers, daily activities, and favorite things.
(k) The demonstrated capacity and disposition of each parent to provide a consistent routine for the child, such as discipline, and daily schedules for homework, meals, and bedtime.
(l) The demonstrated capacity of each parent to communicate with and keep the other parent informed of issues and activities regarding the minor child, and the willingness of each parent to adopt a unified front on all major issues when dealing with the child.
(m) Evidence of domestic violence, sexual violence, child abuse, child abandonment, or child neglect, regardless of whether a prior or pending action relating to those issues has been brought. If the court accepts evidence of prior or pending actions regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect, the court must specifically acknowledge in writing that such evidence was considered when evaluating the best interests of the child.
(n) Evidence that either parent has knowingly provided false information to the court regarding any prior or pending action regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect.
(o) The particular parenting tasks customarily performed by each parent and the division of parental responsibilities before the institution of litigation and during the pending litigation, including the extent to which parenting responsibilities were undertaken by third parties.
(p) The demonstrated capacity and disposition of each parent to participate and be involved in the child’s school and extracurricular activities.
(q) The demonstrated capacity and disposition of each parent to maintain an environment for the child which is free from substance abuse.
(r) The capacity and disposition of each parent to protect the child from the ongoing litigation as demonstrated by not discussing the litigation with the child, not sharing documents or electronic media related to the litigation with the child, and refraining from disparaging comments about the other parent to the child.
(s) The developmental stages and needs of the child and the demonstrated capacity and disposition of each parent to meet the child’s developmental needs.
(t) Any other factor that is relevant to the determination of a specific parenting plan, including the time-sharing schedule.
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