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BOARD CERTIFICATION 2023 > MODIFICATIONS > Flashcards

MODIFICATIONS Flashcards

1
Q

What court generally retains jurisdiction to enforce the award or modify it?

A

Generally the court who enters the support order retains jur to enforce it or modify it anytime during period provided for support to be paid

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2
Q

With respect to a foreign alimony award, what can FL do

A

FL can enforce it but cannot modify it if a spousal order issued be a foreign court still has continuing exclusive jurisdiction

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3
Q

What must FL still acquire in order to enforce a foreign support order?

A

Still need personal jurisdiction over the payor

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4
Q

In a petition to modify alimony, what are the prereqs?

A
  1. A substantial change in circumstances.
  2. The change is sufficient, material, involuntary and permanent in nature.
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5
Q

What test must court’s apply to determine an involuntary change in pay to reduce alimony

A

Good faith test
First, was change of job intentional to avoid alimony
Second, is payor making good faith effort to restore earning capacity - this is appropriate for TEMP reduction, not for permanent

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6
Q

Is participation in a strike grounds for modification?

A

A legal strike - yes; an illegal strike - no

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7
Q

Is lump sum alimony modifiable

A

No - but the manner of payment might be.

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8
Q

is bridge the gap alimony modifiable

A

no - it is non modifiable lump sum alimony

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9
Q

Are property settlement agreements modifiable

A

No - absent consent by parties.

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10
Q

What is the test to determine if payments are for support or division of property?

A

Whether payor spouse’s payment was intended to be given in exchange for some property interest or right of recipient spouse

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11
Q

How are payments not called “alimony” treated?

A

Court has to look at intent of payment to determine if its an alimony payment subject to modification or equitable distribution payment for property rights

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12
Q

Do agreements have to specifically set forth waiver of alimony?

A

Yes - if agreement is silent, then you can still modify. Has to be explicit waiver

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13
Q

If parties waive right to modify alimony, can they modify that provision

A

No - waiver of right to modify is nonmodifiable.

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14
Q

Can payor seek to suspend alimony

A

Yes, where payor lacks ability to pay due to no fault of his own the payor should not be subjected to accrual of arrears.

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15
Q

Can court impute unapplied social security benefits if payments deferred to later time as investment strategy?

A

It’s reversible error to impute under these circumstances

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16
Q

W waives interest in H pension, can H pension later be considered for purposes of alimony award

A

YES

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17
Q

What is standard of review of supportive relationship

A

Mixed question of law and fact

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18
Q

If a party files modification of alimony based on cohab, how far back can the modification go?

A

To the date of filing NOT the date the relationship started

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19
Q

Can court consider supportive relationship in initial alimony award

A

Yes - court can consider any other factor necessary to do equity but it must still consider all cohab relationship factors and determine to wht extent supportive relationship impacts wife’s need for alimony

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20
Q

What must court find in order to order modification retroactive to date of filing petition

A

Have to make same needs and ability finding retro to date of filing to modify it up or down

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21
Q

Foreign order for alimony is established in FL and sought to be modified - what date can court apply modification to?

A

Modification can be retro to date of filing and not just the date of domestication bc under full faith and credit clause of constitution, foreign judgment must be treated same as non foreign judgment, which is modifiable to date of filing

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22
Q

If a petition for modification of alimony is pending, can court award temp alimony pending fj?

A

No, court does not have authority instead it can modify alimony retroactive to the date petition filed.

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23
Q

Can a party seek modification of alimony arrearage accrued prior to filing mod action

A

NO - alimony arrearage is a vested right of payee and not subject to retroactive modification by payor. Trial court only has discretion to modify alimony as of date of filing - not for alimony due before filing. Court has discretion to not hold a payor in contempt for failure to pay but it is still money owed

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24
Q

Can a party seek prejudgment interest on alimony arrears and for what time period?

A

Can seek prejudgment interest with interest accruing to the date of each payment being due - e.g. H fails to pay alimony March and April, W can seek prejudgment interest from March due date payment and separately for April due date

Court MUST award prejudgment interest on CHILD SUPPORT award

BUT if a downward modification is granted retroactively to date of filing - obligor may seek relief

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25
Q

How does court have jurisdiction to modify a child support payment

A

By statute - 61.13(1)1(a)

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26
Q

Can the court temporarily modify child support during a pending modification action

A

No - based on the doctrine of law of the case. Modification of terms of parties settlement requires a hearing and specific findings - until such time, the underlying final judgment is the law of the case.

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27
Q

When can a servicemember seek temporary modifications?

A

In the event they are deployed - which means the movement or mobilization of a servicemember for less than 18 months pursuant to uniform service orders that are designated as unaccompanied; do not authorize dependent travel; otherwise do not permit movement of family members to location of deployment

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28
Q

When do court have jurisdiction to modify support for post majority child

A

Statutory authority authorizes support for depend persons beyond 18 when dependency is bc of mental or physical incapacity that began before reaching majority or the person dependent in fact is between 18 & 19 and i still in high school and performing in good faith with reasonable expectation of graduation by 19

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29
Q

Can a 50 year old autistic adult child seek support from his father 29 years after attainting age of majority?

A

YES - if he was diagnosed while he was still a minor but the independent action must be brought by the child.

Typically, parent’s support ceases when kid turns 18 and an ext of cs based on child mental incapacity must be brought in dissolution case BEFORE kid reaches age of majority otherwise SBJ is lost.

30
Q

when does child support terminate if fj is silent

A

On kid’s 18th bday

31
Q

Can a mother seek retroactive child support after kid turns 18?

A

No - M has no standing unless child was otherwise deemed legally dependent un 743.07

32
Q

Can a spouse seek child support in a DOM action after child reaches majoirty?

A

Generally entitled to support only for those months within preceding 24 months and when the child was a minor or otherwise qualified for support

33
Q

Can court modify child support if it’s not plead?

A

NO - IT IS A DUE PROCESS VIOLATION. MUST SEEK MODIFICATION IN A WRITTEN PLEADING IN ORDER TO OBTAIN MODIFICATION

34
Q

FW files a modification for sole parental and 100% - court grants petition for modification and modifies cs. Is this reversible?

A

REQUEST TO MODIFY CS MUST BE BY WRITTEN PLEADING!

35
Q

F files petition to modify child support based on mother’s increased income. Can court rely on F’s reduced income in mod?

A

No, not if that wasn’t plead as a basis for modification of cs.

36
Q

FH filed modification of alimony and child support to be reduced. Trial court reduced alimony but increased cs. Is this allowed

A

No - cannot increase CS since FW did not file a proper pleading requesting same.

37
Q

What governs venue for child support modification action

A

61.14

38
Q

where is proper venue for child support modification

A
  1. Where 1 or both parents lived at time of execution of agreement
  2. Where 1 or both parents lived on date modification filed
  3. Where agreement was executed
  4. where original order was entered
39
Q

Can a party pick venue for modification if a enforcement action is pending?

A

No - if enforcement action already pending in one of the permissible venues, the modification has to be in same venue

40
Q

What happens if there is more than one proper venue?

A

The venue by petitioner is presumptively correct. The burden is on party challenging venue to show substantial inconvenience for witnesses or parties or undue expense in order to obtain transfer of venue

41
Q

Under UIFSA, when does a state retain continuing exclusive jurisdiction over support order

A

As long as obligor, obligee or child are residence of the state unless parties file written consent with issuing tribunal to allow another state to modify order an assume continuing exclusive jur

42
Q

What is the issue in FL concerning retroactive modification of foreign child support orders

A

Split in the districts as to whether retroactive can be to date of filing petition for domestication or if you are limited to date it was domesticated

43
Q

What is the rationale of those districts allowing retro modi to date of petition to domesticate

A

Upon domestication, the foreign order is to be given same effect as FL order and if FL mod orders are permitted to be made reto to date of filing petition then to treat a domestic order to only allow prospective enforcement would denying giving foreign order the same efect as a FL judment

44
Q

What are the grounds for modification of cs

A
  1. when mod is in BIC
  2. Child reaches majority, emancipated, marries, joins armed services or dies
  3. Substantial change in cir
  4. Can seek support for dependent person beyon 18 if bc of mental or phys incapacity which began prior to majority or if kid is between 18-18 and in high school performing in good faith w reas expectation to graduate before 19
45
Q

What is deemed a substantial change for mod of cs

A

If the amount provided by guidelines is different by 15% or $50, which ever is greater

46
Q

Can the court modify a parties’ agreement for the payment of CS after majority once child reaches majority?

A

Court doesn’t have authority - the support becomes contractual, not subject to modification.

E.g. court cannot modify agreement for cs to be payable through college once child reaches majority

47
Q

What factors should consider consider for modification of cs

A

Once court finds substantial change in circumstances, it relies on 61.30.

48
Q

Who has burden

A

Party seeking change in amount has burden of proving sub change in cir which is significant, material, involuntary and perm in nature.

49
Q

What can substantial mean ?

A

Either in child’s needs or parent’s income (inc or decrease)

50
Q

What is necessary finding if court determined child’s need increased

A

Must also find increased ability to pay

51
Q

Pay income increased but also had new wife and kids to support - should court increase cs based on increased csg?

A

No, not without a finding that his actual ability had increased and not if proof that original kids’ needs were being met be existing award

52
Q

when is a downward division from csg appropriate

A

When child’s needs are being met - child entitled to share in good fortune of parent consistent with appropriate lifestyle

53
Q

What must happen if an agreement or fj doesn’t contain automatic reduction for step down support

A

-Must file petition to modify cs but if child turns 18 it automatically terminates by law

54
Q

what is the proper language to be include in order to cs regarding termination of support

A

The wording should track statute and say that is terminates at 18, marriage, self support or dies, whicever comes first.” - party can alway modify later if statutory exception exists

55
Q

Can order include that child support terminates when child is 19 or graduates from hs?

A

No - stick to statutory language and then if circumstance’s appear that child will graduate after 18 then file petition to mod

56
Q

Does statue permitting cs for kid who is still in high school after 18 prevent a parent from seeking termination?

A

No

57
Q

Can party seek mod of ts for a parent’s failure to exercise ts?

A

Yes - 61.30(11)(c) - failure to exercise ts not caused by other parent which results in adjustment of amount of cs shall be deemed substantial change in cir

58
Q

When can mod for ts for failure to exercise ts be modified to

A

Retroactive to the date the parent failed to regularly exercise ts

59
Q

If parties agree to a change in timesharing schedule, is that grounds for modification of cs?

A

No -

60
Q

Father’s request to retroactive modify ts was granted, can court modify cs too?

A

Not unless he plead for it

61
Q

what analysis should court employ to determine if a parties’ reduction in income is voluntary when they decide to go back to school

A

Analysis is it is’ in child’s best interest (is the education going to help kids long term)

62
Q

What is the analysis for imputation of income

A

2 step analysis
1. Is parent’s unemployment or underemployment voluntary and
2. if so, calculate the imputed income

63
Q

What shall court consider in imputation of icnome?

A
  1. recent work history
  2. occupational qualifications
  3. prevailing earnings level in community
64
Q

who has burden for imputation of income

A

party seeking to impute the income

65
Q

What can court do if it finds that a change in income is not permanent

A

No mod but can suspend during that period of unemployment

66
Q

Can subsequently born children be used for downward modification of existing cs

A

no - can only be used to mitigate a request for upward mod

67
Q

where is proper venue for modification of PP

A
  1. Circuit court where either parent AND kid lives or
  2. Circuit were original order entered
68
Q

Where is proper venue for a foreign judgment

A

Actions shall only be brought in the county were
1. Defendant lives
2. Cause of action accured
3. Property in litigation is located

69
Q

What is the burden to dissolve an injunction for DV

A

Demonstrate that the scenario underlying the injunction no longer exists so that the continuation of injunction would serve no valid person

70
Q

What must a party opposing dissolution of an injunction demonstrate?

A

That he or she reasonably maintains a fear of becoming a victim of domestic violence

71
Q

Is a party moving to dissolve injunction entitled to a hearing

A

Entitled to a hearing on a motion to dissolve IF motion is legally sufficient

BOARD CERTIFICATION 2023 (20 decks)

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