MODIFICATIONS
Modification of Custody (Time-Sharing)
To compensate for changes in living situations, Florida law allows parties to petition for the modification of custody. However, for a court to grant a modification of the time-sharing arrangement, the petitioning parent must provide evidence of a substantial, material, and unforeseeable change in circumstances.
When Courts May Modify Custody in Florida
When making the initial child custody determination, the judge did so with your child’s best interests serving as the primary factor to be considered. Some factors that the judge considered when determining custody include the following:
- The age of the child;
- Yours and the other party’s relationship with the child;
- Yours and the other party’s living situation;
- Yours and other party’s ability to provide continuity and stability for the child; and
- Yours and other party’s willingness to support the other’s relationship with the child.
Florida law does not allow a change in child custody arrangements based on one parent’s dissatisfaction with the arrangement. Generally, there are only three reasons that may propel a judge to consider making a modification to a custody agreement. Those are as follows:
- Both Parents Agree to a Modification: If a modification is uncontested, each can approach their respective lawyers, have said lawyers draft a new parenting agreement, and request the approval of a judge. This is the easiest way to obtain a modification to a court order.
- A Final Judgment of Injunction for Protection Against Domestic Violence Has Been Entered Against a Parent: If the other parent became angry with you, your child, or both at one point and you had to call the police and/or file for a petition for a protective order, you may receive emergency relief, which means that you may be awarded sole custody until the injunction has been lifted.
- A Substantial Change in Circumstances Has Occurred: “Substantial change in circumstances” can be something that happens instantaneously or something that occurs over time. It can be an injury, an illness, a major move, or the development of an addiction—all occurrences that may negatively impact one’s ability to parent.
Instances that are typically not considered a substantial change in circumstance includes a job promotion, an isolated incident of domestic violence, or even an isolated incidence of drug use. For the courts to seriously consider a modification to a custody order, the petitioning parent must be able to prove that the change is in the child’s best interests.
With a change in custody (time-sharing), a change or modification of child support would follow.
Modification of Child Support
Child support payments are based on factors including parental income and the costs of other expenses. Since these factors can change, it's possible that these changes could result in a modified child support order. For instance, suppose a father pays a mother $1,000 a month for child support; however, he has recently lost his job and can no longer afford the payments. A solution to the issue is that the father can file for a child support modification which could reduce his support obligation.
The court uses state guidelines to arrive at a child support order and the amount is presumptively correct; the court typically must order the amount provided for according to the guidelines.Once the order is in place, child support can be modified only if a parent can show a "substantial and ongoing change in circumstance." The burden is on the requesting parent to show such a change exists such as a shift in income, parenting time, or with certain expenses.
Florida Child Support Modification at a Glance
It's important to recognize the significance of the literal interpretation of a statute, but it's also beneficial to refer to a legal explanation that is written in a relatable manner. The chart below gives an overview of child support modification law in Florida.
| Statute |
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| Income changes |
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| Parenting time changes | A substantial change in the pattern of parenting time supports modification of child support. If there is deviation between the parenting plan and the actual parenting plan in practice, then the courts can recalculate child support based according to the actual parenting pattern as currently exercised by both parents. |
| Change in expenses | Certain changes in child associated costs can support changes in child support. For instance, the following:
|
Modification of Alimony
Section 61.14 of the Florida Statutes provides that most types of alimony may be modified or terminated when there has been an unexpected, involuntary, and substantial change in circumstances that affects the former spouse’s ability to pay, or the other former spouse’s need for alimony. The real question and the cause of many court battles is exactly what that statement means.
Before you can file for a modification of alimony in Florida you must qualify by having a “Substantial Change in Circumstances.” If you do not satisfy that requirement you cannot open a modification case. A “substantial change in circumstances” means a change that was unanticipated at the time the alimony was ordered by the court. The change must be permanent, involuntary, and material (more terms to define and argue over).
The court has the discretion to modify an order of support, maintenance, or alimony, retroactively to the date of the filing of the supplemental action for modification. Please note, a judge will only reduce or terminate alimony if properly requested by Supplemental Petition to Modify Alimony, and granted in a Final Order for Modification. If you just stop paying alimony, you may face sanctions, such as paying the former spouse’s attorney’s fees, having your driver’s license suspended, or possibly even spending some time in jail. That is why it is really important to file for modification the second your circumstances change.
Cohabitation Law (Supportive Relationship)
Florida has a “supportive relationship” law (Cohabitation) that ends permanent alimony in the event of the payee’s lack of continued need for alimony because of the payee’s new supportive relationship. Because of the ambiguity in what constitutes a “supportive relationship” and who may constitute that new supporter, the court will inquire into the nature and extent of the relationship in question. Additionally, Florida law does not permit continued permanent alimony that results in the payee ex-spouse having more income than the payer ex-spouse.
Various types of alimony have different rules on modification. Some are completely modifiable at any time in the future. Others can only be modified in amount, or duration (end date). Some types of alimony are designated as non-modifiable alimony. This is an important term to identify if it is part of your original agreement. Courts will never impose non-modifiable alimony by force. For that term to be present in your final judgment, the two of you must have agreed to the language in a Marital Settlement Agreement. If the alimony is designated as non-modifiable then courts will treat it as just that – non-modifiable. That means you can never file a modification petition and expect to get the amount or duration changed. “Non-modifiable” is a serious term that is interpreted absolutely by the courts.