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Question: What is the "substantial change in circumstances" that is required in order to get a change to a final judgment, and what happens if the allegations in the supplemental petition do not legally meet that legal standard?
Answer: A "substantial change in circumstances" is a legal standard that must be specifically and correctly worded in the pleadings of a supplemental petition for modification or the supplemental petition can be dismissed. Also, it is what must be proved in order to have the judge approve a change to a final judgment. The exact wording is going to depend on what the petitioner wants the judge to order and is going to depend on statutory and case law as to definitions and standards for a "substantial change in circumstances" for a particular case. For example, for a substantial change to be met for child support under the statutory standard, the re-calculated child support should be 15% or $50 more or less than the existing, ongoing amount. There are other legal standards that can give rise to a substantial change in circumstances such as increase in certain material needs of the children, special medical needs of a child, and other case-specific situations. Changes to contact issues are more complicated. Also, the change must be "material, must not have been contemplated at the time of entry of final judgment, and must be permanent," as these terms are defined in the law.
Question(s): What does someone need to do to change something in a final judgment or a settlement agreement that has been made a court order? And, how do they go about doing that, and how much will it cost to hire an attorney to do it?
Answer(s): Assuming a substantial change in circumstances will be met, the answers depend on what needs to be changed and whether the other side is going to agree or disagree with the proposed change(s). Usually a supplemental petition for modification is filed. The supplemental petition requires essentially the same documents to be filed that were filed in the original case: petition, financial affidavit, summons, Uniform Child Custody Jurisdiction and Enforcement Act Affidavit (UCCJEA), Certificate of Compliance with Mandatory Disclosure (that required documents under Florida Family Law Rule 12.285 have been copied and served on the othe party). If the parties agree in advance, then a stipulation or settlement agreement can be drafted and the process is fairly simple. If there isn't an agreement soon after the supplemental petition is filed and served on the other party, then the parties must attend mediation (a type of settlement conference) to try to get a settlement agreement. If no settlement is reached, the case proceeds, ultimately the parties having to go before the judge to decide the issue of whether to allow the change or changes, unless the parties reach an out-of-court settlement prior to trial.
Cost to hire an Attorney: If the parties agree to the change, then the cost to hire an attorney to represent the person in the matter is going to be much less than if the issues become contested, obviously, because the case is going to last longer if the case is contested.
Even if the parties agree to a change or changes, they should still seek legal representation because a person should be concerned that the agreed changes are worded correctly and that he or she knows all the legal consequences and legal effects that will happen when the proposed changes become orders of the court and legally binding on him or her.
Litigants should be aware that changes to child support and alimony, both reductions and increases, almost always are retroactive only to the date of filing in court for the change. Having discussions of settlement and attending mediations to get a written agreement for the change are not in and of themselves going to preserve a person's legal right to the date to which the change will be retroactive.
Question: Who pays attorney's fees in regard to modification actions?
Answer: Generally, each party will initially pay his and her own attorney fees and court costs. Later, the judge may rule that one party has the ability to contribute toward the attorney fees and costs of the other party based on the need of one party and the ability of the other party to pay, regardless of who initiated the modification action.
This information is not to be used as legal advice. FOR ANSWERS SPECIFIC TO YOUR SITUATION, PLEASE CONTACT US AT
Email us: mail to dunloplaw@aol.com
Phone: 407-628-4300 or 1-800-536-5179
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