In certain divorces, a court may enter an order of spousal support (or alimony) or child support. Normally, an order of support, whether for child support or spousal support, can be changed if one party proves three fundamental prerequisites: “First, there must be a substantial change in circumstances. Second, 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, 536 (Fla. 1992).
Retirement is an example of when someone may need to request a decrease in his or her support obligation because his or her income has substantially decreased. However, if retirement is the reason for the modification, then there are additional requirements. In order to decrease a person’s alimony obligation due to retirement, a 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 . . . Even
at the age of sixty-five or later, a payor spouse should not be permitted to unilaterally choose voluntary retirement if this choice places the receiving spouse in peril of poverty. Thus, the court should consider the needs of the receiving spouse and the impact a termination or reduction of alimony would have on him or her. In assessing those needs, the court should consider any assets which the receiving spouse has accumulated or received since the final judgment as well as any income generated by those assets.”
(Anderson v. Durham, 162 So. 3d 65, 66 (Fla. 1st DCA 2014).
Requesting a modification from the Court is not the same as obtaining a modification. Even if the person files to modify a support order, until such time as that order
is granted, the original obligation stands. Often, even if the payor timely files to modify the
order and is awaiting his or her day in court, his or her ability to comply with that order may
be impaired and he or she may stop paying some or all of his or her obligation.
Once a person stops paying the entire amount of support, he or she is at risk for the other side filing a contempt motion. There are several types of contempt and each have a different remedy1. Usually, a payor’s defense in a contempt motion are the exact same
reasons given for the modification. However, it is usually easier to prove a person violated
a court order than it is to change one. On average, a hearing on a contempt motion may
take an hour; however, a hearing to modify the order may take an entire day.
Therefore, until recently, the Courts, when prompted, where scheduling contempt hearings long before the Judge had the calendar space for a modification hearing. In the Fourth Judicial Circuit, this changed in 2015 when the First District Court of Appeal held that a payor is “entitled to have his motion to modify [support] heard before or simultaneously with the hearing on the [payee’s] later-filed motion for contempt” (Rosenblum v. Rosenblum, 178 So. 3d 49, 50 (Fla. 1st DCA 2015).
Of course, there are exceptions to the information provided above. For instance, parties can agree that a spousal support provision of a final judgment of dissolution of marriage is not modifiable.
If you or someone who know may need to request a modification of alimony or child support or believe that his or her former spouse is about to file for one, please contact the knowledgeable
lawyers at Fletcher and Phillips at 904-353-7733.
1 Because the issue of contempt is such a big issue, it will not be specifically addressed here.