Posted by Nydia Streets of Streets Law in Florida Divorce

When modifying a Florida divorce judgment, depending on what you are seeking to change, it is important to know the standard the court is obligated to use in deciding on your request. For example, modifying alimony or child support requires the court to review several similar factors, while modification of child custody in Florida requires the court to review other factors. In Suarez v. Suarez, 4D18-1148 (Fla. 4th DCA November 13, 2019), we see the standards applied to these types of modification.

In this case, the former husband and former wife each filed post-judgment motions, and the former wife filed a petition for modification of timesharing, alimony and child support. The former husband claimed the former wife failed to pay him alimony as ordered, while the former wife alleged the former husband was not following the parenting plan and that her income had decreased through no fault of her own. She testified that her largest client terminated her services and new regulations caused her business to decline. There was also evidence presented that the former husband and the parties’ son were estranged, and that because of the former husband’s work schedule he was not spending the ordered equal timesharing with the parties’ daughter.

The trial court therefore entered an order terminating alimony, modifying the parenting plan to reflect former wife spending majority timesharing with the parties’ children and accordingly modifying child support so that former husband would pay support to the former wife. The former husband appealed, arguing the trial court erred by not considering the required statutory factors in modifying these matters.

While the appellate court agreed there was sufficient evidence to modify alimony based on the former wife’s permanent, substantial and involuntary reduction in income, the court took issue with the trial court’s failure to consider other factors relevant to modification of alimony such as those factors listed in Florida Statute 61.08(2). The court held, “The record is barren of any other consideration of the factors enumerated in section 61.08(2). The court only addressed whether the former wife's change in circumstances were substantial, unanticipated, and material. The trial court further failed to address: (1) whether the former wife had an ability to pay; and (2) whether the former husband had any need for any amount of alimony payments.”

Next, as to timesharing modification, the appellate court reversed, holding the trial court erred by not considering whether or not the modification was in the best interest of the children. Similarly, the child support determination was reversed with the appellate court holding “Here, the trial court used the gross-up method for both children despite its finding that the son was not spending any overnights with the former husband from March 2015 to December 2017. The court acknowledged the need to recalculate child support in light of that fact, but then incorrectly used the gross-up method, which is available only if the child spends at least 20% of the overnights with the parent.”

If you are seeking a modification of child support, alimony and/or timesharing in Florida, consider a consultation with a Miami divorce lawyer. Through this meeting, you can learn the best way to proceed with your case.