Modification

CAN I CHANGE THE AMOUNT OF CHILD SUPPORT?

Final Child Support orders are ALWAYS Modifiable. Modification of Child Support is authorized once:

  • It is found to be in the Best Interest of the Child;
  • The child reaches majority, is emancipated, marries, joins the armed services or dies;
  • When there is a Substantial Change in Circumstances of the Parties; OR
  • Providing support if a child reaches eighteen (18) years old but has a mental or physical incapacity that began prior to the age of eighteen (18) or if the child is between eighteen (18) and nineteen (19) years old and still in high school and has a good faith and reasonable expectation of graduating prior to their nineteenth (19th) birthday.

The Court entering a Child Support order maintains continuing jurisdiction to Modify the amount, terms, and conditions of Child Support payments. You must file a Supplemental Petition for Modification for the Court to consider your request of any Modification. You MUST specifically plead in the Petition for a Modification of Child Support, or the Court will not have jurisdiction to rule on the matter. The Court has placed a heavier burden places upon the party seeking a reduction in Support when parties agreed upon the original arrangement.

If a parent fails to regularly exercise the court-ordered or agreed upon Time Sharing schedule NOT caused by the other parent which resulted in the adjustment of the amount of Child Support; shall be deemed a Substantial Change in Circumstances for purposes of Modifying Child Support. In this circumstance, the amended Child Support award is retroactive to the date the parent first failed to regularly exercise their Time Sharing schedule.

When one parent Relocates, results in less Time Sharing, the other parent is entitled to an Increase in Child Support.

An Agreed upon change in Time Sharing while agreeing not to modify the Child Support, where one party “talks” the other party into exercising more Time Sharing, they may NOT then seek a downward departure in Child Support.

WHAT IS THE STANDARD?

The party seeking Modification must prove there exists a Substantial Change in Circumstances since the last Order or Judgment in the case. The Burden of a Substantial Change in Circumstances is:

  • Significant;
  • Material;
  • Involuntary; and
  • Permanent in Nature.
WHAT IS SUBSTANTIAL AND MATERIAL?
  • A Substantial change may be in the child’s needs or either of the parent’s income (increase or decrease).
  • A change significantly impacts the ability to pay Support.
  • A change that was NOT Anticipated.
WHAT IS CONSIDERED INVOLUNTARY?

The Court is more likely to grant a Downward Modification in a Support Obligation if there is an Involuntary Change in Circumstance. Some examples of a Change in Circumstances are:

  • Can be awarded a Downward Departure.
    • Payor loses their job, not through their fault and was unable to obtain equivalent employment.
    • Permanent decrease in income as a Realtor, when the real estate market is in a slump.
    • Drastic change in income due to a forced change in employment.
  • Court will probably NOT grant a Downward Departure when:
    • You lose your job, due to misconduct; the Court could not grant your request.
    • Voluntarily move into a more expensive residence.
    • Voluntary reduction in income and only engages in a limited job search.
    • Quit your job thinking you might get laid off.
    • If you are shown to be voluntarily unemployed or underemployed, your Income could be Imputed
WHAT IS CONSIDERED A PERMANENT CHANGE IN CIRCUMSTANCES?

Permanency is met when the change is not temporary or transient and encompasses an extended period of time, at least ONE year. The Court will wait that time period to have sufficient evidence that the change is permanent in nature and giving the party time to re-establish themselves.

If you are currently experiencing a change in income or believe the other party has experienced an upwards of income, please call or contact my office to schedule a consultation to thoroughly discuss all of your specific goals and needs.

CAN CHILD SUPPORT INCREASE DUE TO INCOME ALONE?

Child Support can increase even if the only Change in Circumstance is the payer’s income. So long as the Child Support guidelines may provide the basis for proving a Substantial Change in Circumstances upon which a Modification of an existing order may be granted. However, the difference between the existing monthly obligation and the amount provided for under the Guidelines shall be at least 15 percent or $50, whichever amount is greater, before the court may find that the Guidelines provide a Substantial Change in Circumstances.

There still needs to be proof that there is a substantial increase in the obligor’s actual ability to pay an increased amount and proof that the Child’s needs were not being met by the existing award.

A child is entitled to share in good fortune of a parent consistent with an “Appropriate Lifestyle.” The Court will determine if the “Appropriate Lifestyle” is being met with the current Child Support obligation.

IS THERE RETROACTIVE SUPPORT?

The Child Support may NOT be Modified prior to the date of filing of a Petition for Modification. The Court does not have authority to grant Retroactive Support prior to the filing of the Petition.

WHAT HAPPENS IF PROVEN A SUBSTANTIAL CHANGE IN CIRCUMSTANCES?

The Court must then consider all of the applicable statutory Factors in recalculating Child Support. The Court may adjust the total minimum Child Support award, or either parents share of support, based upon these Deviation Factors:

  • Extraordinary medical, psychological, educational, or dental expenses.
  • Independent income of the child, not to include moneys received by a child from supplemental security income.
  • The payment of support for a parent which has been regularly paid and for which there is a demonstrated need.
  • Seasonal variations in one or both parents’ income or expenses.
  • The age of the child, taking into account the greater needs of older children.
  • Special needs, such as costs that may be associated with the disability of a child, that have traditionally been met within the family budget even though fulfilling those needs will cause the support to exceed the presumptive amount established by guidelines.
  • Total available assets of the oblige, obligor, and the child.
  • The impact of the Internal Revenue Service Child & Dependent Care Tax Credit, Earned Income Tax Credit, and dependency exemption and waiver of that exemption. The court may order a parent to execute a waiver of the Internal Revenue Service dependency exemption if the paying parent is current in support payments.
  • Child Support guidelines require a person to pay another person more than fifty-five percent (55%) of their gross income for a Child Support obligation for current support resulting from a single support order.
  • In a Parenting Plan, where the Time Sharing exercised is a significant amount of time with a party, but less than twenty percent (20%) of the overnights, thereby reducing the financial costs incurred by the other parent.
  • Any other adjustment needed to achieve an equitable result, to include, but not limited to, a reasonable and necessary existing expense or debt.

If you believe that any of these factors are applicable to your situation, please call or contact my office to schedule a consultation.

CAN MY CHILD SUPPORT BE LOWERED IF I HAVE A NEW CHILD?

Subsequent born children cannot be considered in a Downward Modification. The needs of subsequent children can ONLY be considered in mitigation of requests of an Upward Modification of an existing award of Child Support. Said party can request a deviation of the Child Support guidelines, but prior to the Court determining whether there is a proper basis for a deviation, the income of the other parent of the subsequent children may be considered.

CAN I CHANGE THE AMOUNT OF ALIMONY?

Final Alimony support orders are NOT ALWAYS Modifiable, and if it is Modifiable, not all aspects of Alimony, such as Duration, may be Modifiable. You must look at the Final Order, and if based on an Agreement, what the Agreement provides. If the Alimony award was not based on an Agreement, then you must look to see what type of Alimony was originally Ordered.

The Party must specifically plead with enough certainty and specificity allegations sufficient to inform the other party what is proposed to be proved so that they have the opportunity to prepare a defense. The moving party MUST file a Supplemental Petition to Modify for the Court to have an ability to Modify. The Court may only modify Alimony for the reasons stated in the Petition.

WHAT ARE THE GROUNDS?

The moving party must show these Fundamental Prerequisites:

  • A Substantial Change in Circumstances.
  • The Change was NOT Contemplated at the time of the Final Judgment of Dissolution.
  • The Change is Sufficient, Material, Involuntary, and Permanent in Nature.
WHAT IS A SUBSTANTIAL CHANGE OF CIRCUMSTANCES?

Must be a clear showing that there has been a Substantial Change in the Financial circumstances of either party occurring after the entry of the order awarding Alimony. The Change alleged MUST have occurred after the last Judgment awarding Alimony.

WHAT DOES NOT CONTEMPLATED MEAN?

There must be a Factual finding by the Court as to whether the change was contemplated by the parties at the time they signed their Agreement.

WHAT IS CONSIDERED INVOLUNTARY?

The reduction in ability to pay Alimony MUST NOT be the result of a Voluntary act, and there was NOT an Intent of evading the Alimony obligation.

An Alimony obligation may be reduced by the showing that the party has engaged in a new line of business with substantially reduced income, but showed they did not do so to intentionally avoid an Alimony obligation and acting in good faith to increase earnings back to the previous level.

When there is a Voluntary reduction in income, the Court will apply a “Good Faith” Test to determine if there should be a temporary reduction or suspension in Alimony payment.

WHEN IS THE TIME CONSIDERED PERMANENT?

Showing a Substantial Change existed for ONE (1) year or more is generally a showing of Permanence.

CAN I MODIFY PERMANENT ALIMONY?

Similar to Child Support, Permanent Alimony is always Modifiable, unless that right was previously waived by the parties. The ability to Modify Permanent Alimony resides with the proof of showing a Substantial Change in Circumstances affecting the need of one party and/or the ability to pay of the other party.

The Court has the ability to convert an award of Permanent Alimony to Rehabilitative Alimony on a showing of a party’s current employability.

It is improper for the Court to grant an automatic Downward Modification of Alimony based on some anticipated future event. The Court will not consider entitlement of a retirement account at a certain age as a stream of income in a party’s support of future Alimony reduction; especially if there is no evidence presented as to the party’s needs at that future event.

The Court will look at the assets of each party, as well as the assets received in Equitable Distribution during the original Dissolution proceeding.

The monthly Alimony award can be increased upon a showing of a recipient’s need for an increase and the payor’s financial ability.

CAN I MODIFY LUMP SUM ALIMONY?

Lump Sum Alimony is NOT Modifiable, absent agreement by the parties.

CAN I MODIFY REHABILITATIVE ALIMONY?

This type of Alimony can be Terminated or Modified when there is a showing of a material change in circumstances since the original Order, either the recipient no longer needs the assistance of Rehabilitative Alimony, or the payor lacks the ability to continue with the payments.

To extend the period of Rehabilitative Alimony, the recipient must show despite their Diligent and Reasonable efforts, they have still not been Rehabilitated.

There is an ability to convert the Rehabilitative Alimony into Permanent Alimony through a showing that there has been a Change of Circumstance and through no fault of the recipient’s, the rehabilitative plan did not work. The Court shall also consider the original purpose of the award, whether it has been achieved, and if not, the reasonable likelihood of the recipient becoming self-supporting.

CAN I MODIFY DURATIONAL ALIMONY?

Durational Alimony CAN be Modified or Terminated based upon a Substantial Change in Circumstances. The length of the Alimony can NOT be Modified without a showing of Exceptional Circumstances and may not extend past the length of Marriage.

CAN I MODIFY BRIDGE-THE-GAP ALIMONY?

Bridge-the-Gap Alimony is NON-MODIFIABLE Lump-Sum Alimony that is paid in installments to help one spouse adjust financially to life after Marriage.

If you are currently paying any form of Alimony and it is causing financial harm or not receiving enough Alimony to pay your bills, please call or contact my office to schedule a consultation to discuss what remedy you might have.

AM I ALLOWED TO RETIRE?

A Reasonable retirement can be considered in order to determine if a sufficient change in circumstances exists to warrant a Modification of Alimony. The following criteria must be met when Modifying Alimony due to Voluntary Retirement:

  • When determining if a Voluntary Retirement is Reasonable, the Court shall consider the payor’s Age, Health and Motivation for Retirement, as well as the type of work the payor performs and the age at which others engaged in that line of work typically Retire.
  • Widespread acceptance of sixty-five (65) or later, the payor spouse should not be permitted to unilaterally choose Voluntary Retirement if this choice places the receiving spouse in peril of poverty.
  • Even at the age of sixty-five (65) or later, the payor spouse should not be permitted to unilaterally choose Voluntary Retirement if this choice places the receiving spouse in the peril of poverty.
  • The Court should consider the needs of the receiving spouse and the impact a Termination or Reduction of Alimony would have on the receiver.
  • The Court should also consider the Assets of the parties.

If you are seeking to retire earlier than age 65 due to health issues, you must still present evidence that you are unable to obtain alternative employment suitable to the health issues. If you are entering into retirement age or having health related issues due to your employment, please call or contact my office to schedule a consultation to discuss your options.

WHAT IF THE PARENT LIVES WITH A PARTNER?

If a party receiving Alimony, has entered into a Supportive Relationship, the support obligation can be Modified or Terminated. The Court must make specific written findings that since granting of the Divorce and award of Alimony, a Supportive Relationship has existed. The Burden of proof lies with the Obligor to show by a Preponderance of the Evidence that a Supportive Relationship exists. How to prove a Supportive Relationship Exists:

  • The extent to which the oblige and the other person have held themselves out as a married couple by engaging in conduct such as using the same last name, using a common mailing address, referring to each other in terms such as “my husband” or “my wife”, or otherwise conducting themselves in a manner that evidences a permanent supportive relationship.
  • The period of time that the obligee has resided with the other person in a permanent place of abode.
  • The extent to which the obligee and then other person have pooled their assets or income or otherwise exhibited financial interdependence.
  • The extent to which the obligee or the other person has supported the other, in whole or in part.
  • The extent to which the obligee or the other person has performed valuable services for the other.
  • The extent which the obligee or the other person has performed valuable services for the other’s company or employer.
  • Whether the obligee and the other person have worked together to create or enhance anything of value.
  • Whether the obligee and the other person have jointly contributed to the purchase of any real or personal property.
  • Evidence in support of a claim that the obligee and the other person have an express agreement regarding property sharing or support.
  • Evidence in support of a claim that the obligee and the other person have an implied agreement regarding property sharing or support.
  • Whether the obligee and the other person have provided support to the children of one another, regardless of any legal duty to do so.

If you are paying Alimony and suspect the other party is in a Supportive Relationship, please call or contact my office to schedule a consultation so we can start compiling evidence to Modify your alimony obligation.

HOW CAN I MODIFY PARENTING PLAN AND TIMESHARING?

There must be a showing of Substantial, Material, and Unanticipated Change of Circumstances AND Modification is in the Best Interests of the Child. The Court will determine what is in the Best Interest of the Child by evaluating the factors listed below:

  • 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.
  • The anticipated division of parental responsibilities after the litigation, including the extent to which parental responsibilities will be delegated to third parties.
  • 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.
  • The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.
  • The geographical 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.
  • The moral fitness of the parents.
  • The mental and physical health of the parents.
  • The home, school, and community record of the child.
  • The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.
  • 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.
  • 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 bed time.
  • 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 parents to adopt a unified front on all major issues when dealing with the child.
  • 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 interest of the child.
  • Evidence that either parent has knowingly provided false information to the court regarding and prior or pending action regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect.
  • 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.
  • The demonstrated capacity and disposition of each parent to participate and be involved in the child’s school and extracurricular activities.
  • The demonstrated capacity and disposition of each parent to maintain an environment for the child which is free from substance abuse.
  • 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.
  • The developmental stages and needs of the child and the demonstrated capacity and disposition of each parent to meet the child’s developmental needs.
  • Any other factor that is relevant to the determination of a specific parenting plan, including the time-sharing schedule.

The Burden by the moving party to show a Substantial Change of Circumstances is extraordinary. The inability of parents to get along or communicate does not meet this extraordinary burden. The parent’s failure to communicate and their hostility towards each other does NOT constitute a Substantial Change in Circumstances. If the factors listed above have changed since the last Court order, please call or contact my office to schedule a consultation to understand all of your options.

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Frankel Law Firm

With offices in Ormond Beach and Daytona Beach, the Frankel Law Firm provides clients throughout Volusia and Flagler Counties with exceptional legal services in all aspects of family law. The firm's areas of expertise include jurisdictional divorce issues; marital property characterization, valuation, and division; spousal and child support; child custody cases; paternity matters; adoptions, and prenuptial, postnuptial, and marital settlement agreements.

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120 E Granada Blvd., Suite 203
Ormond Beach, FL 32176

(386) 317 4641

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