I need to modify custody, parenting time, or support: Preparing, filing, and serving a Motion

October 23, 2021 - Categories: Legal Articles

You got divorced and the judge ruled but time goes by and the terms of your divorce do not fit your life anymore, what can you do? 
When you “finalize” your divorce, the Court will issue a final judgment. Often if there are minor children involved, this final judgment will include a parent plan as well as a martial settlement agreement. These documents are considered part of the final judgment and will be enforced accordingly. The exception to this concept is of the parties want to modify their previous terms of divorce. This can either be a previously agreement between the parties or even a court ordered parenting plan or dissolution of a marriage.

What can you modify after a divorce is final?
The good news is pretty much anything in the terms of a divorce can be changed. This can be time sharing, the income imputed to the parties for child support, alimony, etc. 

Must we go file in the court to modify the terms of our divorce?
Not necessarily. If the parties want to modify the terms of their divorce, they can always mutually agree to do so, but it must be in writing and signed by the parties. This is the preferred method of the court to modify divorce terms though. If the parties are not in agreement to modify the terms of a divorce, then the party looking to modify must file a Petition to Modify.

Is there a standard to modify the terms of a divorce? What is the first step?
If you’re not in agreement to modify your divorce terms and need to file a Petition to Modify, it is imperative that you meet the standard to do so. In order to modify the final judgment in Florida for a divorce, there must be a substantial change in circumstances. There is a three-part standard to show a substantial chance in circumstances; 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. 
Once you file a Petition to Modify, then you must set the motion for hearing. Sometimes, depending on the judge and the county of which you file, the same county in which you filed your original divorce case, will require you to attend mediation. If you and your former spouse make less than $100,000 together, then you qualify to use the court’s mediation, Alternative Dispute Resolution. If you and your former spouse make more than $100,000.00 then you will need to seek the services of a private mediator. 

Once you file your Petition to Modify, what do you do next?
It is extremely important that the opposing party in your case knows of your intent to modify the terms of the divorce. This is done after the Petition to Modify is drafted and filed with the court. Best practice is to use a licensed process server who understands and can execute service within the laws of Florida. If you cannot find the opposing party, then service can be eventually obtained through publication in the local newspaper.

Do we have to go to court?
Assuming you don’t settle in mediation, then you now will proceed to a hearing. You will need to produce the evidence that you feel supports your case to modify the terms of your divorce. If the term to be modified is concerning a minor child between the parties, then the court often functions off the standard of “best interest of the child.” The best interest of the child is s fairly vague term so the court will often take a few factors into consideration to determine if the change would be best for the child involved. For example, the court may consider educational needs of the child, emotion needs of the child, and what is the most consistent way for the child to be raised. 

Often, the court determines if there is a substantial change in events or what is in the best interest of the child through the testimony of the parties and any relevant witnesses. Although rare, sometimes the court will want the child who is involved to testify as well. In order for a child to testify though, you must file a motion with the court and have a court approving said motion, this is to ensure the emotional and mental welfare of the child.

What if my spouse enters into another relationship but I am still paying alimony to them?
Alimony is a bit different from other factors which can be modified as alimony can be changed due to the spouse being supported entering another relationship in which he/she is being supported. Pursuant to Fla. Stat. § 61.14(1)(b) The court may reduce or terminate an award of alimony upon specific written findings by the court that since the granting of a divorce and the award of alimony a supportive relationship has existed between the obligee and a person with whom the obligee resides. The burden is on the obligor to prove by a preponderance of the evidence that a supportive relationship exists and that alimony should be terminated. Evidence to show that the supported parent is in a relationship in which he/she is being supported include but are not limited to; (1) how the supported parties holds themselves out to be “married”, (2) the period in which the supported spouse has resided with the other person in a permanent place of abode, (3) the extent to which the parties have pooled their income, (4) the extent to which the parties have supported each other and many other factors. Id. 
Additionally, in order to prove that the party should be able to obtain modification when the petitioning party retires, the court will take into consideration 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. Pimm v. Pimm, 601 So. 2d 534, 535 (Fla. 1992). Voluntary retirement is not grounds for a modification of final judgement. “Voluntary retirement cannot be considered change of circumstance which would warrant modification of child support.” Id. 

I want to move out of state with our minor child and my former spouse isn’t letting me, now what?
Another more in-depth issue for modification is relocation of the minor child. “Relocation” means a change in the location of the principal residence of a parent or other person from his or her principal place of residence at the time of the last order establishing or modifying time-sharing, or at the time of filing the pending action to establish or modify time-sharing. A Petition for Relocation must be filed separately from a modification case even though it is technically a modification of the final judgment. Relocation of a minor child is even governed by another Florida Statute, 61.13001. Pursuant to Fla. Stat. 61.13001(2)(a), if the parents and every other person entitled to access to or time-sharing with the child agree to the relocation of the child, they may satisfy the requirements of this section by signing a written agreement that: (1) reflects consent to the relocation, (2) defines an access or time-sharing schedule for the nonrelocating parent and any other persons who are entitled to access or time-sharing; and (3) describes, if necessary, any transportation arrangements related to access or time-sharing. 

Can I modify my own divorce?
Like most things in the legal field, you can always move the court on your own. The issue though is there are numerous statutes to consider when doing so. Additionally, the proper procedure can be lengthy and confusing to someone who doesn’t do it every day. Access Legal Care specializes in matters such as modification of divorce terms. Let us help you and make your process as streamlined and efficient as possible.

Key Questions to Answer:
Question: When did you receive summons and complaint?
Importance: Need to know when served, so we can determine when an Answer must be filed and served by.

Question: How did you receive the summons and complaint? (1st class mail, certified mail, in-person, etc?)
Importance: This will also determine the deadline for filing an answer. If served by certified mail, the person may have more time to file an answer.

Question: Do you live in the state in which the lawsuit was filed, i.e. were you served in another state?
Importance: If served in another state than the original, you may have more time to file an answer.

Question: In general, do you agree with most or all of the allegations? Which do you disagree with? 
Importance: If the prospective client actually agrees with the allegations (for example: yes, the debt is mine, yes I owe it, yes it is $5,000, but I just don’t have the money to pay it), then that affects our affirmative defenses and improves our prospects for coming up with an agreeable settlement. If we can come to a settlement, then the case will cost less. If, on the other hand, the prospective client significantly disagrees with one or more allegations, and the stakes are high, then that will increase the chances of the case going all the way to trial, which will affect our strategy, pricing, etc. 

Question: When did you receive summons and complaint?
Importance: Need to know when served, so we can determine when an Answer must be filed and served by.

Question: How did you receive the summons and complaint/modification? (1st class mail, certified mail, in-person, etc?)
Importance: This will also determine the deadline for filing an answer. If served by certified mail, the person may have more time to file an answer.

Question: Do you live in the state in which the lawsuit was filed, i.e. were you served in another state?
Importance: If served in another state than the original, you may have more time to file an answer.

Question: In general, do you agree with most or all of the allegations? Which do you disagree with? 
Importance: If the prospective client actually agrees with the allegations (for example: yes, the debt is mine, yes I owe it, yes it is $5,000, but I just don’t have the money to pay it), then that affects our affirmative defenses and improves our prospects for coming up with an agreeable settlement. If we can come to a settlement, then the case will cost less. If, on the other hand, the prospective client significantly disagrees with one or more allegations, and the stakes are high, then that will increase the chances of the case going all the way to trial, which will affect our strategy, pricing, etc.  

Question: Is the county in which the modification was opened the same county as the one in which the original suit was filed?
Importance: This is important because the county in which the original case was filed typically retains the jurisdiction to modify it. 

Question: Is there some kind of compromise that can be mitigated?
Importance: sometimes it is worth it to try to strike a deal than it is to drag it through to a hearing. A lot of times there is somewhere in the middle that can be found.

Question: Has there been a substantial change in circumstances?
Importance: At least in Florida, this is the standard in which must be met for there to be a modification. Such circumstances can have to do with numerous things like a change in schools, ability to timesharing, or the amount of money that one party is making versus the other.

Do you or a loved one need to speak with an attorney for free legal advice? Do you need affordable legal services to help you with the above topic, or with any other legal service? Access Legal Care Law Firm can help.

Access Legal Care is an award winning law firm serving multiple U.S. states with a network of licensed & experienced local attorneys and team members who are dedicated to providing individuals, small businesses, and non-profits with free legal consultations and affordable legal help for their most common legal needs. Savings are as much as 40-50% less-expensive compared to typically-priced attorneys and law firms.

"Click here to SCHEDULE A FREE PHONE CONSULTATION with an experienced and licensed attorney in your state and region".

Access Legal Care Law Firm covers the following legal services:
• Abuse and Neglect Cases

• Divorce, Custody, Support

• Retirement Plan Orders (QDROs/EDROs)

• Deceased Estates (Probate)

• Guardianships of Money and Person

• Landlord/Tenant

• Lawsuits (small & mid-sized)

• Incorporations & Small Business

• Non-profit Formation & 501(c)(3)

• Criminal Defense

• Wills, Trusts, Powers of Attorney

• Property Deeds

• Driver's License Restoration

• Garnishments/Collections

• Settlement Agreements & Orders

• Attorney Letters

• Consumer, Creditor, Debtor Issues

• Personal Injury & Medical Malpractice

• Social Security Disability