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Orlando Family Law Attorneys – Modification Of Final Judgement
After the conclusion of a divorce or paternity action, there may be a basis to modify the Final Judgment. A petition for modification can be used to address new issues involving the children, such as modifying timesharing or child support. Additionally, a Petition for Modification can be filed to modify alimony. Typically, issues involving equitable distribution are not modifiable, unless there are extenuating unique circumstances. In petitioning to modify a final judgment, the moving party must show three fundamental prerequisites. First, there must be a substantial change in circumstances; second, the change must not have been contemplated at the time of final judgment; and third, the change must be sufficient, material, involuntary, and permanent in nature. Failure to prove any of these prerequisites will result in the denial of your petition for modification.
Once these prerequisites have been met, the court will follow the same standard that was used in the original divorce or paternity action. The standard for modification proceedings does not change, except that you must establish the above-mentioned prerequisites. For example, if you are modifying a timesharing schedule the standard is still the best interest of the child or children. However, in some cases there are some additional complexities when dealing with modification issues.
Modifying Alimony Obligations
If there is a substantial change in circumstances a party may file a Petition to Modify Alimony. Again, there must be a substantial change in circumstances. For example, if a party’s income has decreased by 20%, he may no longer be able to afford his or her alimony obligation. This may qualify as a substantial change in circumstances, if the change is involuntary and the payee is not deliberately unemployed or underemployed.
Additionally, if there is a period of unanticipated unemployment, it is advisable to file a Petition for Modification, as the Court will only be able to modify the alimony award back to the date the Petition was filed. However, not all aspects of alimony are modifiable. For example, durational alimony awards are only modifiable as to the amount, but not as to the length of the award. Further, if a party is cohabitating in a supportive relationship, there may be a basis to modify an alimony obligation. For cohabitation cases, it is important to note that you must prove the supportive relationship requirement, which requires specific evidence related to the parties’ finances.
Modifying Timesharing or Custody
Throughout the course of a child’s life there may be numerous reasons that the timesharing schedule needs to be amended or changed. If the parties are unable to resolve these issues on their own they must file a Petition for Modification. A Petition for Modification of Timesharing is appropriate where one party has failed to exercise his or her timesharing, there has been a move that substantially impacts the timesharing, the needs of the child has changed, or one of the parents no longer has the ability to care for the child. This is not an exhaustive list, but provides some of the common reasons that Petitions for Modification of Timesharing are filed.
Modifying Child Support
Child support can be modified if there is a substantial change in circumstances. Typically, with child support the substantial change is an increase or decrease in income, which changes the child support amount by 20%. Additionally, child support may need to be modified if one of the children has aged out and the Final Judgment failed to include a termination date. In many older Final Judgments, the courts failed to include a termination date for child support and the parent continues to pay child support past the termination date. It is important to file a Petition for Modification upon the anticipation of the child aging out. Otherwise, you may be obligated to continue to pay child support, even after the child has reached the age of majority.
Contempt Actions During Modification
When a party files a Petition or Motion for Modification, the opposing party is unable to have a hearing on any Motions for Contempt that were filed after the Petition or Motion for Modification. Any contempt proceedings must be resolved simultaneously or subsequent to the modification issues. A party that files a modification action is entitled to a hearing on their Petition and any contempt motions are to be scheduled at the same time as the Final Hearing on the Petition for Modification. As these matters are directly related, case law has consistently held that they must, at the very least, be resolved together, to promote judicial economy and justice for the parties. Allowing a contempt issue to be heard prior to resolving the Petition or Motion for Modification would defeat the protections that filing such a modification action afford. However, if you are not successful on your modification action, the court may order you to pay any arrearage that has accumulated during the period of time where you were not satisfying your child support or alimony obligations.
The legal standard for Modifications of Final Judgments can be a complex area of law. The Dewitt Law Firm has significant experience seeking and defending modification actions. If you have questions concerning a modification action, you should contact Dewitt Law Firm to discuss your options.