Divorce Modification and Enforcement
rechel & associates, p.a.
Modification and Enforcement in Tampa
Many clients require the services of an attorney post-judgment for the purpose of either modification or enforcement of their Final Judgment.
Enforcement of Final Judgment
Enforcement options will depend upon what it is you seek to enforce. For example, if it is a property right, then you are limited to monetary judgment and/or civil remedies, whereas if the enforcement is for non-payment of child support, alimony, or attorney fees and costs, then the option of pursuing contempt is available.
Modification of Final Judgment
With regard to modification, the only possible options are modification of the parenting plan, modification of child support, or modification of alimony (equitable distribution judgments and/or property settlements are non-modifiable).
Within the scope of these areas, each cause of action is distinct.
Parenting Plan/Time-Sharing Modification
A petitioner for modification of a final judgment determining a parenting plan or time-sharing schedule has the burden to show: (1) there has been an unanticipated, substantial or material change in circumstances since the judgment was entered, and (2) the child's best interests will be advanced by the requested modification.
The Supreme Court has called this burden of proof “the substantial-change test,” and has ruled that it applies equally to modification of a parenting plan arrangement that was originally agreed-to by the parties and incorporated into the final judgment and one that was ordered by the court following an adversarial hearing.
The substantial change in circumstances must not have been reasonably contemplated at the time of the original judgment. Thus, a petitioner must present new evidence as to the parties’ factual circumstances that was not presented - or anticipated - in the original proceedings.
For purposes of evaluating a modification of parental responsibility, parenting plan or timesharing schedule, the Court’s consideration of best interests of the child shall include an examination of all factors affecting the welfare and interests of the child as listed in Florida Statutes §61.13(3). This includes the following:
a) 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.
b) The anticipated division of parental responsibilities after the litigation, including the extent to which parental responsibilities will be delegated to third parties.
c) 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.
d) The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.
e) The geographic 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.
f) The moral fitness of the parents.
g) The mental and physical health of the parents.
h) The home, school, and community record of the child.
i) The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.
j) 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.
k) 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 bedtime.
l) 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 parent to adopt a unified front on all major issues when dealing with the child.
m) 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 interests of the child.
n) Evidence that either parent has knowingly provided false information to the court regarding any prior or pending action regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect.
o) 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.
p) The demonstrated capacity and disposition of each parent to participate and be involved in the child's school and extracurricular activities.
q) The demonstrated capacity and disposition of each parent to maintain an environment for the child which is free from substance abuse.
r) 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.
s) The developmental stages and needs of the child and the demonstrated capacity and disposition of each parent to meet the child's developmental needs.
t) Any other factor that is relevant to the determination of a specific parenting plan, including the time-sharing schedule.
Modification of Child Support
Both parents have the duty to contribute equitably to the support of their child. Each parent's duty of support continues during the marriage and after its dissolution.
An agreement between parents that provides for child support, whether or not it has been incorporated into a final judgment of dissolution, is distinguishable from a “property settlement” and pursuant to Florida Law, is subject to modification based upon need, ability to pay, and other relevant factors such as the best interest of the child, though the case law dissuades modification purely upon the “best interest” premise. In general, the proof required to modify a settlement agreement is the same as the proof required to modify an award established by court order.
The party who seeks a modification of child support has the burden of proving, by a preponderance of the evidence, that there has been an unforeseen, involuntary, permanent and substantial change of circumstances justifying modification.
If the child support order to be modified is based on a marital settlement agreement that was incorporated into the final judgment of dissolution, and the requested modification is for a reduction in support, the party seeking the reduction bears a heavier-than-usual burden of proof since that person must not only provide evidence of the present/time of filing financial status, but must also provide evidence of the status as existed at the time the settlement/contract was signed.
Modification of child support is within the sound discretion of the circuit court, and a modification order will not be disturbed on appeal in the absence of a clear showing of abuse of that discretion.
Modification of Alimony
A party who seeks modification of alimony must demonstrate that there has been a substantial change in the circumstances or financial ability of one or both parties since the award was made, and changes should be instituted only in such instances. The person seeking to modify alimony must prove a substantial change in circumstances that was not contemplated at the time of final judgment.
The moving party must justify a modification of alimony by providing clear and convincing evidence that there has: (1) been a substantial change in circumstances; (2) that the change was not contemplated at the time of the final judgment of dissolution; and (3) that the change is substantial, material, permanent, and involuntary.
Existence of a Supportive Relationship: One possible change in circumstance is the living situation of the party in need. Per Fla. Stat. 61.14(b)(1), “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 moving party (often the obligor) to prove by a preponderance of the evidence that a supportive relationship exists.
The factors the Court must consider to decide if a “supportive relationship” exists and thereby has “changed the circumstances” (meriting reduction or termination of alimony) are articulated in Florida Statutes § 61.14(b)(2):
a) The extent to which the obligee 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;
b) The period of time that the obligee has resided with the other person in a permanent place of abode;
c) The extent to which the obligee and the other person have pooled their assets or income or otherwise exhibited financial interdependence;
d) The extent to which the obligee or the other person has supported the other, in whole or in part;
e) The extent to which the obligee or the other person has performed valuable services for the other;
f) The extent to which the obligee or the other person has performed valuable services for the other's company or employer;
g) Whether the obligee and the other person have worked together to create or enhance anything of value;
h) Whether the obligee and the other person have jointly contributed to the purchase of any real or personal property;
i) Evidence in support of a claim that the obligee and the other person have an express agreement regarding property sharing or support;
j) Evidence in support of a claim that the obligee and the other person have an implied agreement regarding property sharing or support;
k) Whether the obligee and the other person have provided support to the children of one another, regardless of any legal duty to do so.
Substantial Changes in Ability to Pay: The law states that modification of an alimony obligation is appropriate where the court determines the obligor has suffered a reduction in income without deliberately seeking to avoid playing alimony and has acted in good faith resulting in a reduction to the obligation commensurate with current ability to pay. Loss of a job does not quantify as permanent loss of ability where the obligor has the means and capability to secure alternative employment; instead, mere temporary adjustment might be merited.
Other Factors: Though need and ability are certainly the crux of any alimony award (and thus changes to either are often grounds for modification), by law the Court had to have considered more than just these two factors in justifying its award for support. Several (if not all) of those conditions might continue to exist; for example, if the parties had a long term marriage, there may have been an un-rebutted presumption in favor of a permanent periodic stipend. Even in the face of diminished need and ability, these factors might continue to exist and require a mere reduction rather than a termination of alimony, particularly where the obligee continues to have financial need and to live well below the standard established during the marriage.
Hiring a Lawyer for Modification or Enforcement
Modification of your existing final judgment requires certain legal criteria be met. It is advisable that you discuss your individual case with an experienced attorney prior to filling your supplemental petition for modification. The attorneys of Rechel & Associates, P.A. are here to help with any enforcement or modification services you may need.