Modification is when a party seeks to permanently change a final Court Order or Judgment. Parties can often choose to mediate the issues to be changed and are able to sign an agreement to change the original terms of the Final Judgment without the significant involvement of the court. Many times, the parties will attend mediation or alternative dispute resolution.
In order to modify the Final Judgment in Florida for a divorce, there must be a substantial change in circumstances. When a party petitions the Court to change the terms of their Final Judgment, they can move to change matters such as child support, alimony, child custody, and mother collateral matters. There is a three-part standard to show a substantial chance in circumstances;
- First, there must be a substantial change in circumstances.
- Second, that the change was not contemplated at the time of Final Judgment.
- Third, the change is sufficient, material, involuntary, and permanent in nature. Pimm v. Pimm, 601 So. 2d 534, 535 (Fla. 1992).
Generally, the same standard of a substantial change in circumstances applies to non-children related issues. Proving a substantial change of circumstance is often where the litigation takes places regarding a modification case. Some examples of substantial changes in circumstance include but are not limited to, job loss, drug and alcohol abuse issues, retirement, and other changes in circumstance.
The Court though often requires more proof if a party loses their job prior to granting a modification. For example, the change in income from a loss of job often needs to be permanent and you cannot find employment within the same or similar field. In Manning v. Manning, the Court found, “former husband failed to show that reduction of his income was permanent, as required to obtain modification of child support; although former husband lost his job and ultimately accepted permanent employment that paid less money, he accepted lower-paying permanent job in exchange for benefits and possibility of financial improvement within six months, indicating that even former husband believed that his circumstances would improve within relatively short period of time.” Manning v. Manning, 600 So.2d 1274 (Fla. 1st DCA, 1992).
In Manning v. Manning, the husband was fired from his job and was able to obtain employment that paid him half of what he had normally been paid prior to being fired. Id. Voluntary unemployment or voluntary underemployment is not considered a valid ground for modification. “Change in circumstances justifying modification of child support obligation does not exist when parent obligated to pay child support attempts to avoid or reduce that obligation by voluntarily becoming unemployed or underemployed.” Burdette v. Burdette, 691 So. 2d 862 (Fla. 5th DCA 1996).
When it comes to alimony, “under Florida law, the court may modify an order of … alimony by increasing or decreasing the … alimony retroactively to the date of the filing of the action or supplemental action for modification as equity requires, giving due regard to the changed circumstances or the financial ability of the parties ….§ 61.14(1)(a), Fla. Stat. (2016).” See also, Nuttle v. Nuttle, 257 So.3d 1084 (Fla. 4th DCA 2018). Alimony is a bit different from other factors which can be modified as alimony can be changed due to the spouse being supported entering another relationship in which he/she is being supported. Pursuant to Fla. Stat. § 61.14(1)(b) The court may reduce or terminate an award of alimony upon specific written findings by the court that since the granting of a divorce and the award of alimony a supportive relationship has existed between the obligee and a person with whom the obligee resides. The burden is on the obligor to prove by a preponderance of the evidence that a supportive relationship exists and that alimony should be terminated. Evidence to show that the supported parent is in a relationship in which he/she is being supported include but are not limited to; (1) how the supported parties holds themselves out to be “married”, (2) the period in which the supported spouse has resided with the other person in a permanent place of abode, (3) the extent to which the parties have pooled their income, (4) the extent to which the parties have supported each other and many other factors. Id.
Additionally, in order to prove that the party should be able to obtain modification when the petitioning party retires, the court will take into consideration whether retirement was voluntary, the court must 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 normally retire. Pimm v. Pimm, 601 So. 2d 534, 535 (Fla. 1992). Voluntary retirement is not grounds for a modification of final judgement. “Voluntary retirement cannot be considered change of circumstance which would warrant modification of child support.” Id.
In order to change non-monetary issues relating to a shared minor child, the modification must not only be a substantial change in circumstance, but the modification must also be in the best interest of the child. Often, custody of the child is at issue or relocation of the child is the issue at hand to be changed. The threshold question when modification of child custody is sought is whether there has been a substantial, material change in circumstances since entry of the divorce decree. Ogilvie v. Ogilvie, 954 So. 2d 698, (Fla. 1st DCA 2007). “In seeking a modification of child custody, the movant must show both that the circumstances have substantially, materially changed since the original custody determination and that the child’s best interests justify changing custody.” Id.
Another more in-depth issue for modification is relocation of the minor child. “Relocation” means a change in the location of the principal residence of a parent or other person from his or her principal place of residence at the time of the last order establishing or modifying time-sharing, or at the time of filing the pending action to establish or modify time-sharing. A Petition for Relocation must be filed separately from a modification case even though it is technically a modification of the final judgment. Relocation of a minor child is even governed by another Florida Statute, 61.13001. Pursuant to Fla. Stat. 61.13001(2)(a), if the parents and every other person entitled to access to or time-sharing with the child agree to the relocation of the child, they may satisfy the requirements of this section by signing a written agreement that: (1) reflects consent to the relocation, (2) defines an access or time-sharing schedule for the nonrelocating parent and any other persons who are entitled to access or time-sharing; and (3) describes, if necessary, any transportation arrangements related to access or time-sharing.
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When a party want to modify their Final Judgment, they must file a petition with the Court specifying exactly what they want changed as well as specific reasons why it should be modified. It is important to be a specific as possible in order to avoid further litigation deterring the terms of the modification. Additionally, it is important to know what issues need to be filed separately, like the relocation of a minor child. Such modification issues can take as little as a few months and as long as a few years. Each case is individual in content as well as how much litigation will be required to change the terms of the final judgment. It is important to employ an attorney with experience in all of the above issues. Horton Law Group, P.A. has years of experience exercising the Florida law as well as aiding out clients in all issues regarding modification. Call today for your free consultation, 561-299-0018.
