Just as with the details of custody and visitation, the court order related to financial support can generally later be modified if circumstances change.
Child support can be modified whenever there is a change in circumstances.
These orders can be modified if there is a change in circumstances. If the change in circumstances can be proved, the arrangement can be modified even if relatively little time has passed – even within two or three months of the original order. Also, in general, a change of circumstance is presumed to have taken place at least every two years.
The modification may also fail to stand up to a “change in circumstances analysis” – a review by the court of how the circumstances have changed. For example, when the party paying support loses their job or has a decrease in pay, they may wish to modify their spousal support. Often, the change in circumstances analysis will show that the party voluntarily changed this circumstance, however, so no modification will be made.
The process itself is relatively simple.
The process for child support modification motions is simple: You file a motion, you ask for discovery (documents relating to the other person’s finances), review the discovery, and then – if no agreement is reached between the parties – you have a hearing.
Filing the motion is going to be the easiest part of the process.
The motion consists of first, a few paragraphs stating when the original order was entered and summarizing the values (financial facts) that it was based upon. You would then outline how these values have changed to now meet the threshold for change of circumstances. These changes can be such things as
- The child has become sick
- There were additional unforeseen medical expenses
- Your or your ex have had a change in income
- You’ve encountered circumstances that require additional financial support
The motion would include by saying that the other party is able to meet the new expenses. Once the motion is ready, you would file it with the court.
From there, the process will becomes more complicated.
You have asserted that the other party is able to meet the increase of expenses, so you will now have to seek “financial discovery,” which means assembling the documents that prove that to be the case.
In addition to the financial disclosure affidavit, supporting documents must be exchanged. These documents can include:
- Federal and state income tax returns (1040s and other schedules)
- W2 forms from the previous tax filing year
- Checking and savings bank statements for at least six months
- The most recent pay stubs with year to date earnings and deductions,
- Six pay stubs if your pay stubs don’t reflect year to date financials
This is just a minimum. In most case, additional financial documents will be required during the discovery process. These can include:
- Credit card statements
- Proof of lease
- Car loans
- Personal loans
- Pension and/or 401(k) statements
In addition to these documents, you may receive questions from the other side, called “interrogatories,” asking if you have any pending litigation suits against you or on your behalf. This is to determine whether or not you are expecting a windfall settlement or outcome in a civil case or workers’ compensation case.
It can get a little trickier if there are cash transactions or cash deposits into a checking account. Any regularly consistent cash deposits would need to be sourced to determine if they are income to be included in calculations. That’s when there will be a hearing to determine how to view these transactions and whether they should be included in the income calculation.
After the facts are laid out, there is typically a hearing.
Once you have the whole picture of the financial situation and where the money is coming from, you would then be able to have your hearing to determine whether or not you can modify the support order. In some cases, the parties will agree to a modification and therefore there wouldn’t need to be a hearing.
There is an algorithm in the state statute that tells you how much support would be based on how much each party earns and the number of children. However, it’s much easier to use software created to conduct these calculations. You must pay for this software, though. Your attorney should have a subscription for this already. Just like calculating your taxes with tax software, you would enter the numbers and the software would spit out how much support will be. The concept is simple, but the disputes occur over what numbers should be entered. Typically, one party will argue that their income should be lower and the other party’s should be higher. This is why most of the hearings take place.
At this point, experienced attorneys will often know whether or not you are going to win your case – if indeed they did not know at the outset – and if it doesn’t look promising they will advise you not to move forward.
The party seeking to increase the amount of support has the advantage.
Pursuing a modification of child support or spousal support is far easier than defending against a party who is asserting you should now pay more in support or if you are a party making a motion to decrease what you are currently paying in support.
This is especially true when the party paying support has already fallen behind. A common scenario is that a father says that he can no longer afford the child support amount due to a change in his employment. It is often a defense to being held in contempt for not paying his support.
In such cases, the judge must determine if he lost his job or had a decrease in pay due to his own negligence or if it was due to no fault of his own. If the judge finds that the change was not the father’s fault, the father will not be held in contempt for not paying. The father may then that the amount of his support has change based on this decision, but that is not the case. The motion before the court was not to modify support, but to jail or fine the father for not.
After the matter of contempt is settled, the father will need to file a motion to modify child support due to a change in circumstances. But all of those missed child support payments (and any interest accrued) are still going to be there. He will still have to pay that back support, even if he wins the motion to decrease the amount of child support going forward.
To sum up, as soon as there is a change in your circumstances, you need to file a motion for modification. Doing so immediately might help to alleviate some of the burdens of back child support during the process.
If you have questions about divorce, child custody, or child support, we can help.
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