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John M. Iriye

John Iriye’s Answers

1 total

  • How do I get a refund of overpaid child support?

    John’s Answer

    Your question relates to modification of alimony. The same general rules that apply to modification of alimony also apply to modification of child support. The bottom line is that you are probably entitled to a modification of both alimony and child support. As you are probably aware, the law is full of exceptions to general rules. The most common reasons for exceptions are based on the facts of your case, Court Orders and Settlement Agreements. When you consult with an experienced attorney the attorney will ask you questions to evaluate the general rules and exceptions.

    The following analysis relies upon assumptions because the facts necessary to determine your rights are not stated in your question. There are many exceptions, but they too numerous to discuss in this forum.

    ARE YOU ENTITLED TO A MODIFICATION?
    GENERAL RULE: One must prove 3 things to modify alimony or child support when the receiving party has a change in employment.

    1) There was a substantial change in circumstances;
    2) The change was not contemplated at the time of the Final Judgment; and
    3) The change is material and permanent in nature.

    To satisfy the test for modification you must meet all three parts of the test:

    1) Substantial Change: One must assume that your ex-wife was making substantially less than you at the time of the Final Judgment. Otherwise, you would probably not be paying alimony. However, if she was making 197% of your income at that time then 200% is probably not substantial.
    2) Not Contemplated: Again, one must assume that you did not contemplate a substantial change in her income.
    3) Material and Permanent in Nature: Changes in income are material to the calculation of alimony. Whether or not employment is permanent can be the subject of great contention. Assuming that the employment is permanent then you can get a permanent modification. However, if the employment is temporary then you still may be able to get a temporary modification.

    WHAT IS THE EFFECTIVE DATE OF THE MODIFICATION?
    GENERAL RULE: The date of a modification cannot be earlier than the date that you file the Petition for Modification.

    Modifications are generally only effective as of the date that you file a Petition for Modification. So, the longer you wait to file the Petition for Modification, the longer you delay the right to a modification.

    SUMMARY
    You are probably entitled to a modification of both alimony and child support, but the longer you wait the longer you will be required to pay a higher amount. You should retain an attorney, especially if your ex-wife has an attorney. Schedule a consultation with an attorney to discuss the facts of your case and to review the Court Orders and Settlement Agreements.

    The above information is general in nature. In order to obtain more specific and legal advice upon which to base your important decisions, please contact our office and ask to schedule an office conference with John. Phone: 407-542-7800 – Fax: 407-542-7900 – E-mail: [email protected] – Address: John M. Iriye, Esq., 1812 Town Plaza Court, Suite 200, Winter Springs, Florida 32708.

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