NEW ‘CHANGE OF CIRCUMSTANCES’ CASE
If you’re paying alimony or child support and want to reduce your obligation because of a new job, job loss, career change or other ‘change of circumstances’, a new Florida appellate court case may help give you some direction.
In general, to reduce an existing alimony or child support obligation you have to prove that a ‘substantial, material and unforeseen change of circumstances’ has occurred since the original Order setting the support. You also may have to prove that your drop in income was involuntary and not the result of a deliberate drop in income by you just to reduce your support obligation. Two examples of an involuntary drop in income is where your job was eliminated or your income was reduced by your employer due to the company’s financial woes.
There are many cases in this area of family law. Here is a new case dealing with one important point in this area: Determining if the ex-husband’s reduction in income was voluntary or involuntary.
In Windsor v. Windsor, published January 11, 2019, Mr. Windsor was successful executive chef in a restaurant. After his divorce Mr. Windsor and his new wife opened a small, unprofitable coffee shop because “he wanted to slow down.” He asked the court to reduce his child support as he was making less money since the day of the Order setting the amount of support, a claim of a ‘change in circumstances’. The divorce court rejected his argument and imputed income to him at the rate he was earning previously from his successful restaurant, not the new coffee shop.
Mr. Windsor appealed and the appellate court reversed the trial court. The appellate court said that in order to impute income to Mr. Windsor there must be a two-step process: First, the court must see if Mr. Windsor is voluntarily (or involuntarily) under–employed or unemployed. If it is voluntary, the inquiry ends and the original amount of support remains. However, if the court finds that the under-employment or unemployment was involuntary, then the court moves to the second step: The court must find that Mr. Windsor has the present ability to earn more (that is, the “current, prevailing earnings level in the community”) and that there are jobs available in the community providing that level of earnings. If these steps are complete, the court is permitted to impute income to Mr. Windsor at the prevailing earnings level in the community. If not, then income may not be imputed and the reduction in support stands a good chance of being granted.
If you want to reduce your alimony or child support obligation because of a job loss, job change or other income reduction, your lawyer will have to give the court facts supporting your involuntary ‘change in circumstances’. Be prepared!