Unfortunately, the Final Judgment of Divorce is rarely the end of the story, particularly for divorces involving parents of children under the age of 18. Circumstances change which often require one party to ask for a modification of the divorce decree. Other times one spouse refuses to do what the Court order required and the other spouse is left with no choice other than to ask the Judge to enforce the order.
Modification of Divorce
To modify a final judgment in Florida, a petition must be filed that explains how a significant and unanticipated change in circumstances or financial ability has occurred that warrants the modification. The party requesting the modification has the burden of proving the change. If the petition to modify involves the children, their best interests will be the primary consideration.
Petitions to modify alimony are most often filed by the paying spouse to request a decrease in the amount because of a decrease in the paying spouse’s income or an increase in the receiving spouse’s income. The receiving spouse’s remarriage or involvement in a continued, long-term relationship may also be issues prompting a change or termination of alimony. The spouse requesting the modification has the burden to prove the substantial change in circumstance that was not contemplated at the time the of the original order or agreement and that the change was involuntary and permanent.
In order to successfully modify child support, the requesting parent must prove that there has been a substantial change in circumstances since the last order and that the change is involuntary, permanent, and was not contemplated. It is typical for a parent’s income to increase or decrease many times before their children turn eighteen. In addition, as children become older, daycare expenses decrease and eventually become completely unnecessary. Once the requesting parent demonstrates that there is a substantial change in circumstances, the Judge is required to recalculate child support based on the financial circumstances existing on the date of the hearing.
It is much easier to reach an agreement to modify child support because child support is based on a statutory formula. If an agreement can be reached, it is filed with the Court and incorporated into a new child support order. If an agreement is not reached, it is important that the requesting parent provide the appropriate evidence needed for the Judge to grant the modification and to determine the appropriate amount of new child support.
In order to modify a Time Sharing Order or a Parenting Plan, the parent requesting the change must prove that there has been a change in circumstance since the last agreement or order and that the proposed change is in the best interests of the child or children. It is common for changes to become necessary as children become older. A Time Sharing Schedule that was appropriate for a toddler is very different from a schedule for a middle school aged child or a teenager. Once the moving spouse shows that a change is needed, the Judge will focus on the best interests of the child. Florida’s Child Custody Statute list the specific factors that the Judge must consider. Attorney Mark Steinberg can discuss the different factors with you during your initial consultation.
Post Judgment Enforcement
A final judgment in a family law matter does not necessarily mean an end to litigation. Unfortunately for some families, the litigation may continue with enforcement issues. When one party does not comply with the terms of an agreement or order, it may be necessary to file a Motion to Compel. The motion will detail the non-compliance to the Court. The Court has the authority to impose sanctions against the non-complying party to force compliance.
Final judgments typically include provisions that spell out how marital assets and liabilities will be divided between the parties. The final judgment often requires that one or both parties sign documents such as deeds and vehicle titles. In addition, the agreement or order may require one or both parties to transfer financial accounts or make lump sum payments. When one party does not comply with the Judge’s order regarding property distribution, the other party can file a motion for sanctions and in extreme cases even a motion for contempt.
When alimony is awarded but the paying spouse refuses to pay, the Judge has several legal ways to force the spouse to pay, including finding the paying spouse in contempt, imposing monetary sanctions, and even sending him or her to jail. However, there may be legitimate reasons why the paying spouse is unable to make the court ordered alimony payments. A recent job loss, reduction in income, and illness are just some of the events that can create an inability to pay court ordered alimony. The Judge will consider these mitigating factors when making a decision.
It is not unusual to have to file a motion to enforce orders to pay child support. Although there are some legitimate defenses for not paying court ordered child support such as an unexpected loss of income, judges usually enforce child support orders. If child support is not being paid as ordered, a motion for contempt and for sanctions may be appropriate. Unless the paying spouse can prove a genuine inability to pay through no fault of his or her own doing, the Judge may impose a finding of contempt. In such instances, the Judge has the authority to impose monetary sanctions, to determine arrearages, to determine an amount to be paid to pay off the arrearages, and to put the non-paying spouse in jail to force compliance with the child support order.
Following a divorce, disputes can arise regarding timesharing issues. These types of issues are taken very seriously by judges because they can have a profound impact on the children. The Judge has many remedies available to enforce a time sharing agreement or order. The Judge can hold the parent violating the agreement or order in contempt, assess monetary sanctions, and put the noncomplying parent in jail. The Judge also has the ability to order make up time sharing when time sharing in accordance with the agreement or order has been inappropriately denied.
If you think you may need to modify or enforce your divorce decree and you want more information, call Mark S. Steinberg, P.A. at (305) 671-0015 or fill out the Contact Form to schedule a consultation.