The Basics: Post Judgment Modification Actions
Once the divorce has been finalized pursuant to a marital settlement agreement or ruling by the trial judge, and a final judgment is entered, the case is over. The issues have been resolved and the divorce is final. However, if a substantial change in circumstances occurs, then one party may petition the court to modify the agreement or ruling and the corresponding final judgment.
A petition for modification can be used to address new issues involving the children and/or to change alimony or child support. In petitioning to modify alimony or child support, the moving party must show three fundamental prerequisites. First, there must be a substantial change in circumstances. Second, that the change was not contemplated at the time of final judgment of dissolution. Third, the change is sufficient, material, involuntary, and permanent in nature. Pimm v. Pimm, 601 So. 2d 534, 535 (Fla. 1992).
Litigation often ensues as to whether the Petitioner meets these three elements in filing their petition for modification. For example, if an individual voluntarily retires, there are specific circumstances that a court must consider to determine if he or she is eligible for a modification. To make the determination as to whether retirement was voluntary, the court must consider the payor’s age, health, and motivation for retirement, as well as the type of work the payor performs and the age at which others engaged in that line of work normally retire. If the retirement was voluntary, then the third requirement for modification is not satisfied and the court will not modify the obligations. The Court does not want to encourage parties to retire solely to terminate prior obligations agreed to in a marital settlement agreement or pursuant to a final judgment. However, the court also does not want to force individuals to work for an unreasonable length of time solely to fulfill their prior obligations.
Another common occurrence is that one party loses his or her job and is unable to find similar employment. If the unemployment or reduction in income is permanent, you must file a petition for modification to reduce the amount of alimony or child support you are required to pay. If you fail to file this petition, then your court ordered obligation will not change and you will continue to be responsible for paying the full amount ordered. Failure to pay the full amount could result in sanctions and contempt.
In order to obtain a modification of custody or timesharing, the moving party must establish (1) that there has been a substantial change in the condition of one or both parties, and (2) that the change in custody serves the best interests of the child. Furthermore, the substantial change must be one that was not reasonably contemplated at the time of the original judgment. This rule promotes the finality of the judicial determination of the custody of children. Langdon v. Langdon, 96 So. 3d 1053, (Fla. 1st DCA 2012). This standard also applies to any change regarding issues of the children.
When filing a petition for modification, it is imperative that the petition specifically identify the change in circumstances and make clear that the circumstances did not exist at the time of the final judgment or of the last order dealing with the issue.
In most counties in Central Florida, modification actions follow a similar track as the prior divorce action. The parties will typically be required to attend mediation prior to going before a judge to resolve the matter. If settlement negotiations are unsuccessful, then a trial will be set and a judge will rule on the matter. However, if the petition does not outline the proper elements required to modify a prior judgment, the opposing party could move for a directed verdict and have the petition dismissed without the judge ruling on the evidence.
Prior to filing a petition for modification, it is best practice to gather all of the documents and evidence necessary to prove your case. This will save you time and money when it comes to conducting discovery down the road. It also allows your attorney to properly review the evidence to establish that there is a colorable basis for a modification. Additionally, be aware that failure to comply with a prior agreement or with a final judgment does not, by itself, provide a basis for a petition to modify. The proper relief in that case would be a motion to enforce or a motion to compel.
Finally, you cannot use a petition for modification to try to change the distribution of assets and liabilities once the court has divided them. Spousal support (alimony) and children’s issues (time sharing and child support) can be modified. Division of assets and debts cannot except in extraordinary circumstances involving fraud.