Modifications Flashcards
What court generally retains jurisdiction to enforce ethe award or modify it?
Generally the court that enters the support order retains jurisdiction to enforce it or modify it anytime during period provided for support to be paid.
With respect to a foreign alimony award, what can Florida do?
FL can enforce the award, but but cannot modify it if a spousal support order issued in a foreign court and that court still has continuing exclusive jurisdiction.
What must Florida still acquire in order to enforce a foreign support order?
Need personal jurisdiction over the payor (obligor).
In a petition to modify alimony, what are the prerequisites?
P-MUSIC
Permanent, material, unanticipated substantial, involuntary change of circumstances.
What test must court’s apply to determine an involuntary change in pay to reduce alimony?
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
Is participation in a strike grounds for modification?
A legal strike - yes; an illegal strike - no
Is lump sum alimony modifiable?
Lump sum alimony is not a form of alimony in and of itself, rather, it is a manner of payment. Therefore, the manner of payment may be modifiable.
Is bridge the gap alimony modifiable?
No.
Are property settlement agreements modifiable?
No - absent consent by parties.
What is the test to determine if payments are for support or division of property?
Whether payor spouse’s payment was intended to be given in exchange for some property interest or right of recipient spouse.
How are payments not called “alimony” treated?
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.
Do agreements have to specifically set forth waiver of alimony?
Yes - if the agreement is silent as to the ability to modify an otherwise modifiable form of support, then you can still modify. There has to be an explicit waiver.
If parties waive the right to modify alimony, can they modify that provision?
No, a waiver of the right to modify is not modifiable.
Can a payor seek to suspend alimony?
Yes, where payor lacks ability to pay due to no fault of his own the payor should not be subjected to accrual of arrears.
Can court impute unapplied social security benefits if payments deferred to later time as investment strategy?
It’s reversible error to impute under these circumstances.
Wife waives interest in Husband’s pension, can Husband’s pension later be considered for purposes of alimony award?
YES
What is the burden of proof for modification of alimony based on the existence of a supportive relationship?
The burden is on the obligor to prove, by a preponderance of the evidence, that a supportive relationship exists or has existed in the 365 days prior to filing of the petition. If a supportive relationship is proven to exist or have existed, the burden shifts to the obligee to prove, by a preponderance of the evidence, that court should not reduce or terminate the alimony.
In a modification of alimony based on supportive relationship, once the burden shifts to the obligee to prove that the court should not reduce or terminate the alimony, what factors shall the court consider?
All of the relevant factors set forth in 61.08(3) AND the following additional factors:
a. The extent to which the obligee and the other person have held themselves out as a married couple by engaging in conduct such as using the same last name, using a common mailing address, referring to each other in terms such as “my husband” or “my wife,” or otherwise conducting themselves in a manner that evidences a permanent supportive relationship.
b. The period of time that the obligee has resided with the other person.
c. The extent to which the obligee and the other person have pooled their assets or income, acquired or maintained a joint bank account or other financial accounts, or otherwise exhibited financial interdependence.
d. The extent to which the obligee or the other person has financially supported the other, in whole or in part, including payment of the other’s debts, expenses, or liabilities.
e. The extent to which the obligee or the other person has performed valuable services for the other.
f. The extent to which the obligee or the other person has performed valuable services for the other’s business entity or employer.
g. The extent to which the obligee and the other person have worked together to acquire any assets or to enhance the value of any assets.
h. The extent to which the obligee and the other person have jointly contributed to the purchase of any real or personal property.
i. The extent to which the obligee and the other person have an express or implied agreement regarding property sharing or financial support.
j. The extent to which the obligor has paid the existing alimony award or failed to do so and the existence and amount of any arrearage.
k. The extent to which the obligee and the other person have provided support to the children or other family members of one another, regardless of any legal duty to do so.
Is the existence of a conjugal relationship necessary when modifying based on a supportive relationship?
No.
What is the burden of proof when seeking to modify or terminate alimony based on attainment of normal retirement age?
The burden is on the obligor, by a preponderance of the evidence, that his or her retirement reduces his or her ability to pay support. If the Court finds the obligor’s retirement reduces his or her ability to pay the burden shifts to the obligee to prove, by a preponderance of evidence, that the support should not be terminated or reduced.
Is retirement grounds to modify alimony?
Yes, upon written findings of fact that the obligor has reached normal retirement age as defined by SSA or customary retirement age for their professional and that the obligor has taken demonstrative and measurable efforts or actions to retire or has actually retired.
What factors shall the court give consideration when determining whether alimony should e reduced or terminated because of the obligor’s voluntary retirement?
a. The age and health of the obligor.
b. The nature and type of work performed by the obligor.
c. The customary age of retirement in the obligor’s profession.
d. The obligor’s motivation for retirement and likelihood of returning to work.
e. The needs of the obligee and the ability of the obligee to contribute toward his or her own basic needs.
f. The economic impact that a termination or reduction of alimony would have on the obligee.
g. All assets of the obligee and the obligor accumulated or acquired prior to the marriage, during the marriage, or following the entry of the final judgment as well as the obligor and obligee’s respective roles in the wasteful depletion of any marital assets received by him or her at the time of the entry of the final judgment.
h. The income of the obligee and the obligor earned during the marriage or following the entry of the final judgment.
i. The social security benefits, retirement plan benefits, or pension benefits payable to the obligor and the obligee following the final judgment of dissolution.
j. The obligor’s compliance, in whole or in part, with the existing alimony obligation.
When can an obligor file a petition for modification if the modification is based on retirement?
In reasonable anticipation of retirement, but not more than 6 month before retirement.
Can the court consider a supportive relationship in an initial alimony determination?
Yes.
What must court find in order to order modification retroactive to date of filing petition?
Have to make same needs and ability finding retro to date of filing to modify it up or down
Foreign order for alimony is established in FL and sought to be modified - what date can court apply modification to?
Modification can be retroactive to date of filing and not just the date of domestication because 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.
If a petition for modification of alimony is pending, can court award temp alimony pending fj?
No, court does not have authority instead it can modify alimony retroactive to the date petition filed.
Can a party seek modification of alimony arrearage accrued prior to filing mod action?
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
