When a couple with children breaks up, what determines who is responsible for paying child support, and can that be modified? This is one of the thorniest and most painful aspects of family law.
Normally, the parent who doesn’t have custody pays.
Technically, both parents owe an obligation to support their child financially. It’s just that the person who is losing money, who is having money taken out of their check or having money sent directly to the other parent, is the non-custodial parent.
The non-custodial parent having limited income may change that.
Some of the extenuating circumstances are if the non-custodial parent earns a lot less than the other parent, the non-custodial parents’ support obligation might be zero or $10 or $50 or something like that, or the custodial parent might owe money to the non-custodial parent.
I never bring this up because, for us mere mortals, it’s never going to happen. But here is the way that could work:
Example: Imagine you are an NBA star, earning multi-millions of dollars, and the mother of your child is not earning anything. The court could likely say, “Well, if you guys were together, that child would undoubtedly benefit from your millions of dollars of income. But now you are not with the mom, so the mom is not going to be able to provide that type of lifestyle; and she is going to have expenses during the day that she can’t afford when she has the child. So, you must give her something.” It’s not going to be millions of dollars or anywhere near that, but it would be more than if you were someone who is just earning a typical salary.
Shared custody could mean no child support.
If the custody arrangement is shared equally, a 50/50 split, the support might be zero. In a case like that, the courts will often decide that, since both of you have the kids for the same amount of time, you are not incurring more costs in rearing that child than the other parent. Therefore, to keep it equal, they will just make it zero.
A change in circumstances can mean a change in child support.
Any time there is a substantial change in circumstances, you may be able to request a modification for custody or for support. What does that mean, and how long does it take to have a substantial change in circumstances? The concept is treated the same way for support, custody, parenting time, and visitation.
A change in circumstances can be almost anything. Common examples include an increase or decrease in income, moving to a new home, getting married to another person or entering a different relationship or different lifestyle. Another commonly cited change in circumstance is non-payment of child support.
A change could also be something like the kid going to a new school or getting a scholarship for a different school.
Time passing can be a change in circumstances.
If a few years, or a couple of years, have gone by, the child has gotten older. Courts have recognized this as a change in circumstances. The idea is that as kids get older, they cost more to rear, which can be grounds for a modification.
There is actually a common misconception that every two years, your support arrangement automatically gets modified. But contrary to this popular belief, that is not the case: You have to file a motion the court for a modification.
Ultimately, it’s up to the judge.
When you finally reach a settlement in a case involving child custody, it will be due to a set of compromises that have been painstakingly worked out. Typically, allowing a modification soon after an initial settlement doesn’t make sense, and courts normally will not do it. But I did have one case where it happened, much to my frustration.
In this unusual story, the two parents had agreed to an allocation judgment, a parenting plan, and a marital settlement agreement. It was a very contentious case, but we were ultimately able to get everything done by mutual agreement. The agreement involved the mom remaining in the marital residence. Then, two or three months later, the mom filed a motion to modify the parenting plan based on her change in circumstances – moving out of the marital residence! This seemed unreasonable, since she had just agreed to stay there as part of the settlement. But the judge disagreed with me and thought it did qualify as a change.
While this result is not typical, it does go to show you that many parts of the law are up to interpretation based on how the judge sees it.