As a military divorce attorney, several servicemembers have asked me whether getting out of the military will allow them to spend more time with their children. This is often a complicated question because it implicates a variety of support and child custody issues.
Under Florida law, if there is a final judgment in place that establishes a time-sharing or visitation schedule, that schedule cannot be modified unless the other parent consents or the party seeking a modification is able to demonstrate a "substantial change in circumstances."
A party seeking modification of a final judgment actually carries the "extraordinary burden" of proving both (a) that there has been a substantial and material change in circumstances, and (b) that the best interests of the child will be promoted by the requested modification. See Wade v. Hirschman, 903 So. 2d 928, 933 (Fla. 2005).
The parent seeking the change must also establish that the alleged change in circumstances was unanticipated at the time of the Final Judgment. See Ogilvie v. Ogilvie, 954 So. 2d 698, 702 (Fla. 1st DCA 2007); see also Mesibov v. Mesibov, 16 So. 3d 890, 892 (Fla. 5th DCA 2009) (holding that “the substantial and material change must be one that was not reasonably contemplated at the time of the original judgment”).
The “substantial change” test applies to all requests for modification of all custody decrees, regardless of whether the parents agreed to the initial schedule or it was the result of an adversarial hearing. See Bazan v. Gambone, 924 So. 2d 952, 955-56 (Fla. 3d DCA 2006).
Florida courts have recognized that changes to a parent’s employment may constitute a substantial change in circumstances for purposes of modifying the parenting schedule. See, e.g., Shaw v. Nelson, 4 So. 3d 740 (Fla. 1st DCA 2009) (former husband’s new employment as a boat captain constituted a substantial change in circumstances for purposes of modifying time-sharing).
For those considering getting out of the military, Florida courts have specifically recognized that termination of active duty military service may support a modification of a custody determination. See Purdon v. Purdon, 529 So. 2d 334, 334 (Fla. 1st DCA 1988) (court permitted modification where former husband completed his military service commitment as a flight surgeon and started practicing medicine as a civilian).
For purposes of modifying child custody, visitation, or time-sharing, there is no requirement that the change in circumstances be “involuntary.” See Fazzini v. Davis, 98 So. 3d 98 (Fla. 2d DCA 2012) (adding voluntariness as a “fourth factor to modification of a time-sharing judgment” is not supported by the statute or case law).
Conversely, if the discharge from the military is voluntary, the servicemember may not be able to achieve a downward modification of alimony. See Pimm v. Pimm, 601 So. 2d 534 (Fla. 1992) (holding that alimony modification must be support by an unanticipated and substantial change in circumstances that is involuntary and permanent in nature). If the discharge is due to retirement from the military, an alimony modification may or may not be available, depending on whether the retirement was reasonable under the circumstances. See Pimm, 601 So. 2d at 537 ("In determining whether a voluntary retirement is reasonable, the court must consider the payor's age, health, and motivation for retirement, as well as the type of work the payor performs and the age at which others engaged in that line of work normally retire.").
As for the servicemember's child support obligation, the obligation to pay support to a former spouse is different from the obligation to pay child support. See Pimm, 601 So. 2d at 537. Voluntary retirement or relinquishment of employment can never be considered a change of circumstance that would warrant a modification of child support. See Pimm, 601 So. 2d at 537; see also Overbey v. Overbey, 698 So. 2d 811 (Fla. 1997).
Interestingly, notwithstanding the case law strictly denying a child support modification where a servicemember voluntarily leaves the military, if the the servicemember applies for a modification and obtains additional time with the children, the servicemember could request a child support modification based on the change in time-sharing.
If you have a question about your legal rights under any of the foregoing circumstances, you should contact an experienced Florida military divorce attorney for a consultation.
