Modifications

After a Final Judgment of Dissolution of Marriage or a Final Judgment of Paternity is entered, a party may seek to modify certain terms of the Final Judgment.  It is important to know that not all terms of the Final Judgment are subject to modification (i.e. being divorced, property division, attorney fee award, etc.).  Pursuant Florida Statute 61.14, a party may seek to modify child support and/or alimony when there has been a substantial change in circumstances warranting an increase or decrease.  This means that one or both of party’s circumstances has changed from the time the Final Judgment was entered, which has affected his or her income.  In a child support modification proceeding, the substantial change would have to be a 15% increase or decrease to warrant a modification.  Many times people think that a remarriage is a change in circumstance for child support because the perception that the other party’s income increases.  This is just not true because child support is solely calculated on each party’s income and not their spouse.  Other factors that may warrant a child support modification are daycare expenses increasing or decreasing, health insurance, and a child reaching the age of majority.  It is imperative that when a substantial change in circumstance is triggered for child support or alimony that a party immediately file a Supplemental Petition to Modify the Final Judgment seeking all requests since the judge can only consider giving retroactive support or credit from the date of filing and not the date of the substantial change occurred. 

As for child custody, the controlling case law is Wade v. Hirschman, 903 So. 2d 928 (Fla. 2005), whereby the Florida Supreme Court ruled in May 2005 that a two (2) prong test applies:  (1) a substantial and material change, and (2) the best interest of the child(ren).  No longer does the court look at a third prong: the detriment to the child(ren).  If custody is at issue in a modification proceeding, the judge will typically order a child custody evaluation.  The child custody evaluation in a modification proceeding is a different standard as provided above than in an original proceeding (divorce or paternity). 
The child custody evaluator will be a person jointly agreed on by the judge and both parties, and who is recognized by the judge and the attorneys for both parties as someone whose training and background make them uniquely able to help the court determine if a substantial and material change has occurred and if it is in the best interest of the child(ren) to change custody.  In a modification proceeding, most judges order the party requesting the change in custody to initially pay the fee for the custody evaluator; however, the judge can order both parties to share in cost.  For more detailed information about what’s involved in a child custody evaluation, click here.

As far as process of a modification case, please see the divorce process section.

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