Florida Divorce Modification Attorney
After the final judgment of divorce or paternity is entered, the parties are obligated to abide by it and the terms of the marital settlement agreement. Hopefully, life will go on as uneventfully as possible for you and your family. No one knows what the future holds. Circumstances may cause a person to seek a modification of alimony, child support or parenting plan. If this happens contact the Florida divorce modification attorney Steven D. Miller for guidance.
Modification of Alimony in Florida
Most forms of alimony can be modified if you can establish that there has been an a substantial, unexpected and involuntary change of circumstances that affects the issues that were addressed in the original case: need and ability to pay.
Step one in considering a modification, of any issue, is whether the final judgment provides that the court retained jurisdiction to do so. That language is a normal part of most final judgments; it’s not mandatory and the lawyer that handled the original proceeding should insure that is in the final judgment submitted to the court.
If there is no provision in the marital settlement agreement or final judgment for alimony, no modification. Sometimes, if there is no need and/or ability to pay at the time of the dissolution, we include a provision for nominal alimony Why, because one never knows what the future holds. If you were divorced after 25 years of marriage and got no spousal support at the time of dissolution, you would not be happy if your spouse hit the Power Ball a month after the final judgment is entered. Nominal alimony + Power Ball winner = unexpected change in circumstances that certainly would warrant filing a petition for modification of that nominal award. Now, no lawyer can promise any particular result, but modification would be pretty good bet in that situation.
The Power Ball example is an easy one. Most alleged changes are not so clear. One man’s substantial change may be the other’s nuisance. Like most family law issues, it’s a coin toss as to how the court will look at the evidence and apply the law.
What are some examples of changes that may be substantial enough to seek a modification in good faith: health issues, substantial increase or decrease in income; remarriage and retirement are but a few of the items that would warrant considering a modification. Decrease in income is alleged often in modification cases. If it’s all true, no problem. However, a voluntary withdrawal from the workforce or not making a good faith effort to look for work if you’ve been laid off or fired isn’t good enough. Taking on additional expenses by getting remarried or having another child or going on a world tour for six months which leaves your finances in shambles – no good. If you received lump sum or bridge the gap alimony, absent some type of fraud on the court – no modification. One of the worst things to do is take a bit of “self-help” by simply stop paying. Not a good idea; it will not go over well with the court. and you may be subject to sanctions including, but not limited to, payment of attorney fees, costs, loss of license or in extreme cases, jail time.
Remember, every lawsuit including those seeking modification carry with it the obligation to proceed in good faith. Failure to proceed in good faith may subject you and your lawyer to sanctions. Losing job is not an emergency in the eyes of the court. Emergency, in the world of family law matters, is generally defined as a life or death situation.
Remarriage or Cohabitation – Living Together
What about the situation when you are paying spousal support and your ex moves in with their new significant other; pretty smart, right? Avoid the termination of ongoing alimony by living together instead of remarrying. Not so fast. Florida law has a cohabitation statute that provides if a receiving spouse enters a “supportive relationship” that may considered in determining whether that spouse has ongoing need to receive alimony. Like most family law matters, that is a fact driven question not always easy to answer. If you are the receiving spouse and make the decision to live with your new concubine, keep your finances separate; pay your own expenses and do not flaunt the fact that you are living in sin. Nothing irritates a paying spouse more than having their nose rubbed in your new found happiness.
Loss of Job or Retirement as Basis for Modification
Losing job may form the basis for modification if it was not of your own doing and if you used your best efforts to seek other employment. Remember, we lawyers are pretty cagey sometimes and there are experts out there who, for a small fortune, will investigate, evaluate and postulate at trial why there is no reason on earth why you, a fired IT supervisor at IBM, can’t find a job paying at least what you earned at your old job. If your ex is willing to pony up the money, experts “say the darnedest things.”
Florida law regarding alimony allows for retirement at age 65, an issue that arises often in modification cases. How will the court view retirement in a modification case? Well, it is not dis-positive; meaning that retirement, in and of itself, will not justify modification. However, the court will give it the weight it deserves in making a decision. Remember, a request for modification must include an allegation that “the event” causing you to seek modification was unanticipated. If you get divorced at 63 can you argue that retirement at 65 was not anticipated? Look, we ask a lot of questions when meeting clients contemplating any legal procedure including modification because we need as much information we can get in order to provide sound legal advice. Don’t be offended by the questions and don’t be upset if we don’t tell you what you want to hear. Our job is to tell you what you need to know.
Is Your Type of Alimony Modifiable?
Generally speaking, all alimony is modifiable unless of course it is non-modifiable. A court will rarely, if ever, order non-modifiable alimony; unless there is a compelling, compelling reason (yes, I said it twice), it would be reversible error (i.e., the appellate court would reverse that order). That said, non-modifiable means just that and a court would be hard pressed to do otherwise. Impossible no, but highly unlikely.
How to Modify Your Marital Settlement Agreement or Final Judgment
There are only two ways to modify anything, whether alimony, child support or parenting plan: (1) try to reach an agreement with other side before filing anything or, when that fails (it usually does) (2) file a petition for modification. Yes, the process begins all over again. Just like the initial proceeding, you must file a lawsuit, pay the filing fee, have the other side served, wait 20 days for a response, subject yourself and your finances to the discovery process, go to mediation, wait for a hearing, pay your lawyer, get frustrated by the delay, the other lawyer, your ex, etc. etc. You get the picture, right? Filing lawsuits is not for the faint of heart and should never be undertaken in a whim. Talk to a lawyer, give him the ALL the facts – nothing (other than not being paid), makes a lawyer more upset than when clients do not provide candid, truthful and thorough answers – and listen to their advice. Like the initial case, you are usually better off resolving the case by reaching an agreement rather than letting a judge who does not know you or your family and has probably a thousand or so cases on their docket to worry about, decide your fate. Sometimes there is no choice and the judge will be happy to oblige you – it clears a case off his docket. If successful, the modification if financial issues will relate back to the date you filed the case; meaning, you may get credit for any over payments made from filing to entry of final judgment. Depending on which side of the case you are on, you may get some money back or have to write a check and nobody likes writing a check for back support. Steven D. Miller, P.A. is here to lead you through the entire process.
“When it’s time to leave (or modify) . . . Call Steve.”