In general, judgments for “modifiable” alimony, child support, and timesharing can be modified under appropriate circumstances. The facts of each case are different, and it is best to consult with counsel in order to determine if a modification action is appropriate to your situation.
Alimony
Alimony is generally modifiable either upward or downward. However, if you have agreed to non-modifiability as to either length and/or amount, absent limited circumstances, such as a judgment obtained through fraud, then the alimony cannot be changed. The type of alimony involved also dictates whether it is modifiable. For example, lump sum alimony is generally not modifiable, whereas rehabilitative, durational, and permanent alimony are modifiable. Circumstances that might trigger modification are unemployment, new marriage, a supportive relationship (defined by Florida statutes)/cohabitation of the party receiving alimony, illness or disability, or a significant change in income.
It is important to remember that modification is generally retroactive to the date of filing of a petition for modification. Absent extraordinary circumstances, one must comply with Court orders and judgments until relief is granted. Time is of the essence for modification actions, and counsel should be contacted forthwith when a change is necessary.
Child Support
Modifications of child support may be based on a multitude of factors. The most common factor is a substantial change in circumstances of the parties such as a change in income, illness, or disability of the paying or receiving party. A modification may be determined to be in the best interests of the child due to changed circumstances such as changing needs as the child ages. Further, child support may be extended past the age of majority if a child becomes dependent due to mental or physical incapacity. Finally, child support may be terminated as a result of change of timesharing structure or the child’s emancipation, marriage, entry into the armed services, or death.
It is important to remember that child support modification is generally retroactive to the date of filing of a petition for modification. Absent extraordinary circumstances, one must comply with Court orders and judgments until relief is granted. Time is of the essence for modification actions, and counsel should be contacted forthwith when a change is necessary. See, Miller v. Schou, 616 So. 2d 557 (Fla. 1993) (establishing standard for increasing child support based upon good fortune).
Timesharing and Parental Responsibility
Changes can be made to timesharing arrangements and parenting plans. There must be a substantial, material, permanent and unanticipated change in circumstances, and the requested relief must be in the best interest of the child. The factors a court will consider in determining whether to grant such a request include, among others:
a. The capacity of each parent to facilitate and encourage a close and continuing relationship with the other parent.
b. Division of parental responsibilities after the litigation, including how much responsibility will be delegated to third parties.
c. The ability of each parent to consider the needs of the child as opposed to their own needs.
d. The length of time the child has been in a stable environment and the desirability of maintaining continuity.
e. Geographic viability of a parenting plan.
f. Moral fitness of the parents.
g. Mental and physical health of the parents.
h. The home, school, and community record of the child.
i. The preference of a child that is of appropriate intelligence and understanding.
j. Each parent’s demonstrated knowledge and capacity to be informed of the child’s circumstances with regarding to social, educational, and medical issues.
k. Each parent’s demonstrated ability to provide consistent routine for the child.
l. Each parent’s demonstrated ability to keep the other informed about the child.
m. Any evidence of domestic or sexual violence, child abuse, abandonment, or child neglect.