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Modification of Support – When the Financial Ability of Either Party Changes

Sean_l._Collin300Oftentimes, one party in a divorce proceeding will feel that they were pressured to enter into a “bad deal” or received the “short end of the stick” and will feel compelled to ask the Court to modify their marital settlement agreement (MSA). These modifications are done by a supplemental petition for modification and can request an upward (increase) or downward (decrease) for support or alimony.

Although “modifications” are (somewhat) routinely granted by the Court, the requesting party has the burden of presenting evidence that a substantial, material, unexpected, involuntary and permanent in nature change in circumstances occurred to warrant such modification. The Court also has the discretion to deny a modification if the requesting party does not show an increased need for support. It is error to grant a modification if the requesting party cannot show that the obligator has the ability to pay.

The Court will look to Florida Statute 61.13 (1)(a) when considering a modification:

  • When the modification is in the best interest of the child;
  • When the child reaches majority, is emancipated, marries, joins the armed services or dies; and/or
  • When there is a substantial change in the circumstances of the parties.

 

Some common reasons for modification include: (1) one party obtaining a higher paying / lower paying job or is voluntarily terminated from their job; (2) the party receiving support enters into another supportive relationship; or (3) a child reaches majority. The requesting party has the burden of proving the substantial change in circumstances and must plead with specificity the reason(s) for the modification.

A substantial and material change in the child support obligation is determined to be (at a minimum) an increase (or decrease) of 15% (or $50.00 per month, whichever is greater).

Oftentimes the Court will find that a change in circumstances is not substantial if the request for modification is based on events that were anticipated or contemplated at the time the parties entered into the marital settlement agreement. Some common examples include: (1) one of the parties complete graduate school and secures a higher paying job; (2) one of the children enrolls in private school; (3) one party retires (i.e. DROP program at Government job).

Additionally if a change is voluntary – i.e. one party voluntarily quits his/her job as a partner in a law firm to become a professor – or temporary – a commission-based sales employee has a few “slow” months – the Court may elect not to permit the modification even though the party’s income has substantially decreased. Rule of thumb is a permanent change comes to fruition after at least one year.

Finally, if a party is seeking a modification based on timesharing, instead of an increase (or decrease) of income, in addition to the factors listed above, the Court will determine if a modification is in the best interest of the child. One factor militating for the modification of time sharing is if one party regularly fails to exercise his/her timesharing with the child.

Of note, when a child support agreement is based upon the parties’ agreement that was incorporated into the Final Order – as opposed to a Court ruling at trial – a heavier burden rests on the party seeking reduction than would otherwise be required. Additionally, the parties can always waive their ability to seek a modification of alimony; the parties can never waive their right to a modification of support, however.

As modifications can be complicated (and sometimes highly litigious), it is crucial you retain a trial attorney at Lyons, Snyder & Collin familiar with divorce, alimony and support. If you have any questions concerning modifications, please contact Broward County divorce attorney Sean Collin for a free consultation.

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