Post Judgment Modification Actions
Nothing is certain in this world but change. Sometimes events occur after the divorce that affect the parties as well as the children who were subject to the divorce. The effect of these changes is that sometimes the terms of the divorce are no longer fair and just to the parties and the minor children. We are dedicated to pursuing post modification actions concerning custody, visitation and child support of the minor children as well as modification actions pertaining to alimony. Issues regarding parental responsibility, timesharing, visitation and child support related to the parties’ children are always subject to modification if there are sufficient legal grounds. Alimony can also be modified if there are sufficient grounds unless the parties have agreed for the alimony to be non-modifiable.
The common questions regarding modification are as follows:
When can I increase the child support my former spouse is paying?
Florida law provides that child support can be increased when there has been a substantial change in circumstances. The most common circumstance is when the payor spouse is now earning a higher income and therefore under those circumstances child support can be recalculated pursuant to the child support guidelines.
I just lost my job, can I decrease the amount of child support and alimony that I am paying?
The law is the same for child support increases as it is for child support and alimony decreases. To lower your support (whether alimony or child support), you must show that there has been a substantial change in circumstances. Furthermore, you must show that the change is material, permanent, unforeseen and involuntary. For example, if you were laid off because your employer is cutting back, then this is involuntary. If on the other hand, you quit your job just because you didn’t like it, then this is voluntary and you would not be entitled to a modification. If you just recently lost your job, then the change may not be permanent enough in nature for a permanent modification, but under those circumstances you might be entitled to a temporary modification until you become re-employed.
I was ordered to pay alimony and now my former spouse is living with another person whom they are dating and who is paying all of their bills, can I modify the alimony?
Yes, Florida has what is called a “supportive relationship statute”. This is found in Florida Statutes 61.14. If your former spouse is now living with another person and that person is providing for them financially, you could be entitled to a modification. The statute lists several factors which the Court is to consider when determining whether to lower the alimony and the amount to which it must be lowered. The amount of support that the former spouse is receiving will determined how much the alimony will be reduced. Also the extent and duration of the supportive relationship will also affect how much the alimony will be lowered.
I don’t like the way my ex is treating our children. I want my children to come live primarily with me, how do I do that?
To modify the parenting plan or timesharing schedule, you must again show a substantial change in circumstances. There must be something that the ex is doing or not doing that is affecting the children in a substantial way. Modification cases are very fact specific so if you think that there is an issue, then the best course of action would be schedule a consultation today so that we can discuss the facts of your case. Simple fighting between former spouses and/or communication issues is not grounds for the court to modify. This is sometimes best dealt with through an enforcement or contempt proceeding.
At what age do children decide where they want to live?
There is no set age when children can decide where they want to live. This is a common misconception. Children never decide where they live, only the parents and the judge can decide this. The reasonable preferences of the child is a factor the court is to consider when determining where a child resides only if the child is of sufficient age and maturity. Therefore, it depends on the individual facts and circumstances when determining what extent the child’s desires comes into play. Obviously what a 16 or 17 year old wants is going to have much more weight than what a 6 or 7 year old child wants.
My son wants to talk to the judge and say where he wants to live, how does he do that?
There is no automatic right for the children to be able to talk to the judge or testify for that matter. Under certain circumstances, a judge will speak with the children but there are several factors that will determine whether this will take place. The most important factor is the preference of the judge. Some Judges will speak with children; whereas others do not find it to be appropriate. Obviously the age of the child will be a major factor as well as the specific issues in the case. The proper procedure is to file a Motion with the Court requesting that the children be allowed to testify. The Motion typically requests that the testimony be held ex-parte which means the judge will talk to the child outside of the presence of the parties. If the judge grants the motion, then the child will be able to talk to the judge. Sometimes the judge will request that the lawyers prepare questions which the judge will then ask of the child, but again this is in the discretion of the judge.