Articles Posted in Modification

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Extreme caution should be exercised when a party in a dissolution of marriage action seeks temporary emergency relief without giving notice to the other party.   This is what is commonly known as ex parte relief, which is seeking relief without providing any notice whatsoever to the other side.  These types of proceedings are at substantial risk of reversal based upon a denial of due process of law.

There is a basic premise under the law that states that absent an emergency, failure to give notice to the other party is tantamount to a denial of due process of law.   The appellate courts throughout the State of Florida routinely reverse temporary custody orders entered without notice to the other party, or with insufficient notice, or with insufficient opportunity to be heard.  Putting it a different way, there are at least two sides to every story, and both parties should be afforded the opportunity to present their position to a judge, prior to the Court making any adjustments regarding a previously existing time-sharing schedule between the parents.

The former husband, Basem Yunis, ran afoul of these basic principles when dealing with an ex parte motion seeking emergency relief.  You can read about the facts in his case in Suleiman v. Yunis, 168 Southern 3rd 319 (Florida 5th DCA 2015).

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A final divorce decree providing for the custody of a child can be materially modified only if there (1) are facts concerning the welfare of the child that the court did not know at the time the decree was entered, or (2) has been a substantial change in circumstances shown to have arisen since the decree.  The petitioning parent bears an extraordinary burden to prove a substantial change in circumstances.

A party, in order to modify a final judgment of dissolution of marriage, must allege and prove an unanticipated substantial, material change in circumstances since the entry of the final judgment.  See the case of Chapman v. Prevatt, 845 So.2d 976 (Fla. 4th DCA 2003) for a further discussion of this topic.

In Blevins v. Blevins, 172 So. 3rd 568 (Florida 5th DCA 2015), the former husband successfully appealed his former wife’s supplemental petition seeking to modify their final judgment of dissolution of marriage.  The modification order in this case was based primarily upon the court’s concern regarding the distance of the child’s school, which was a one-hour drive from the former wife’s residence.

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Support orders in Florida, including child support and most alimony awards, are subject to modification, based upon a change in circumstances.

There is a statute on point in Florida which governs the procedure for modifying support orders. See Florida Statute 61.14.

The statute is broad, but the essence of the law is to provide for a modification when there is a material and substantial change in circumstances, which was unanticipated, or when the financial circumstances of the parties warrant a modification.