CHILD SUPPORT AND POST JUDGMENT MODIFICATIONS – FORT LAUDERDALE / MIAMI
There are many types of modifications in Family Law that can be filed with the Court. Child Support, Alimony, Time Sharing, Parenting Plans, and any other agreement or COURT ORDER that you feel should be changed to meet the demands of your current situation. This is normally called post-judgment proceedings because it is a request to change the Judge’s order.
In all of these types of cases. you must present to the Court a reasonable change of circumstances. For example, to modify child support you must show a change of 5% in the child support calculations for the Judge to consider modifying the amount you pay. With Alimony its more tricky because I have to read your MSA to determine if its modifiable. Some agreements state that alimony is non-modifiable. It all depends on the language of the agreement.
The evidence must be presented in a manner that conforms to the Florida Rules of Evidence. The rules of evidence are a little tricky for most lay-people that go before the judge on their own. Remember the burden is on you to prove your case even if you are not an attorney.
I often times charge a few hours to perform legal research, read your agreement, review the evidence available to you, and report back the results of my legal investigation. This way you will have a solid legal opinion if you have a prima facie case to move forward with.
A few examples of Timesharing as Basis for Modification are as follows:
- § 61.30(11)(c), Fla. Stat. (2014), provides that where a parent fails to regularly exercise the time-sharing provided in the parenting plan, that may serve as a basis to retroactively modify child support to the date where they failed to regularly exercise time-sharing.
- § 61.30(11)(b), Fla. Stat. (2014) provides that whenever a particular parenting plan or time-sharing agreement provides that each child spend a substantial amount of time with each parent, the court shall adjust any award of child support.
- Where relocation of a non-custodial parent resulted in less time-sharing, the custodial parent is entitled to an increase in child support for two autistic children. Kuttas v. Ritter, 879 So. 2d 3 (Fla. 2d DCA 2004).
- Where an agreement afforded the Former Husband with over 40% overnights but Former Husband did not actually spend 40% or more overnights, Former Husband’s request for retroactive modification was denied. Keeley v. Keeley, 899 So. 2d 387 (Fla. 2d DCA 2005).
- An agreed-upon change in time-sharing may not be the grounds for a downward modification of child support. Rubman v. Honig, 817 So. 2d 1001 (Fla. 4th DCA 2002). The Rubman court specifically stated it “was unseemly, to say the least, for the ex-Husband to have talked the ex-Wife into increased time-sharing without a change in child support, and to then have sought decreased child support based on the increased time-sharing.” Similarly, the new substantial secondary parenting child support guideline schedule will not be the basis for a reduction in child support for a modification.
CHILD SUPPORT MODIFICATION EXAMPLES and RULES:
- Permanency is met where the change is not temporary or transient and encompasses an extended period of time, i.e. at least one year. Freeman v. Freeman, 615 So. 2d 225 (Fla. 5th DCA 1993); see also Bennett v. Dept. of Revenue, 664 So. 2d 33 (Fla. 5th DCA 1995) (finding that although proper to deny reduction in child support where unemployment was temporary, obligor was entitled to suspension of child support obligation during time of unemployment).
- When a Father filed only three weeks after losing a job to decrease child support, it was not enough time to determine permanence. Burdack v. Burdack, 371 So. 2d 528 (Fla. 2d DCA 1979).
- The obligor sought a reduction in the agreed-to amount of child support after being terminated from employment at a law firm, and although he had established his own law practice, it had not yet become profitable. The court found the obligor’s earnings had been significantly reduced and granted the downward modification; however, the court noted that the obligor’s decrease in income may not be permanent. Newnum v. Newnum, 715 So. 2d 306 (Fla. 5th DCA 1998).
- Error to permanently reduce child support where loss of employment is only temporary. Court should have temporarily reduced support until Former Husband could reestablish himself. Pitts v. Pitts, 626 So. 2d 278 (Fla. 1st DCA 1993); Dept. of Revenue v. Heirholzer, 708 So. 2d 682 (Fla. 2d DCA 1998).
Modifications is custom work that takes into account the year of the court’s order, the law at the time of the order, your circumstances at the time of the order, and the change of circumstances since the Court order. Sometimes there is no easy response and the Attorney MUST review the totality of the client’s circumstances!